Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1972 and lives in the town of Tolyatti, Samara Region.

On 26 October 2003 police officers from the Inza District Police Department arrested the applicant. He was accused of having broken into a flat and having stolen personal belongings the estimated cost of which was 20,000 Russian roubles (RUB), (approximately 550 euros (EUR). He was remanded in custody at the Inza Town police station (“the police ward”).

Three days later, a prosecutor authorised the applicant’s pre-trial detention and charged him with theft. He was transferred to Inza temporary detention facility IZ-73/3.

On 24 December 2003 a deputy prosecutor of the Inza District served the applicant with a bill of indictment. The applicant was committed to stand trial before the Inza District Court.

On 13 January 2004 the District Court held the first trial hearing, and on 19 January 2004 it found the applicant guilty of aggravated theft and sentenced him to five years’ imprisonment. On 24 March 2004 the Ulyanovsk Regional Court upheld the judgment on appeal.

In addition to his first period of detention in the police ward following his arrest, the applicant was taken to the ward on twenty-two occasions during the pre-trial investigation and court proceedings.

The applicant provided the following description of the conditions of his detention in the ward. He was usually detained in a cell containing two wooden bunk beds and accommodating up to ten detainees. Inmates had had to take turns to rest owing to the shortage of sleeping places. No bedding was provided. The cell did not have a window in the proper sense of that word – a small window was covered with a metal sheet, blocking access to natural light and air. In the absence of any artificial ventilation in the cell, it was hard to breathe owing to the thick smoke and the humidity. The cell was lit by a small bulb inserted in a recess in the concrete wall above the door. Thick metal bars separated the bulb from the cell. According to the applicant, there was no furniture, wash-bowl or lavatory pan in the cell. Once a day, in the morning, inmates were taken to a public lavatory outside the police station. For the rest of the day, they had to use a bucket as a lavatory pan. They were allowed to clean the bucket once a day, in the morning. The foul smell permeated the cell, as the bucket had no cover. The police station did not have a recreation yard and inmates were therefore confined to their cells day and night. Food was provided once a day. The daily food ration consisted of half a bowl of cabbage soup and a piece of bread. In addition, inmates were given tea, which they drank from containers cut from plastic bottles. Medical assistance was unavailable.

The Government submitted that in the period after his arrest and until 4 February 2004, the applicant had been taken back to the police ward twenty-two times. He had usually been taken from the detention facility IZ-73/3 to the ward early in the morning and had been returned to facility IZ-73/3 in the evening, only to be sent back to the police ward in the following morning or several days later. The Government observed that he had spent ten days in the police ward during the pre-trial investigation: five days while attending the court hearings, four days while he was re-acquainting himself with the case-file materials, and an additional three days while he was studying the court records. The Government acknowledged that the material and sanitary conditions in the ward had not “entirely satisfied the established legal requirements”. They stressed that the cells had had no furniture, save for bunk beds, or radios, the lighting had been “insufficient”, the cells had not been equipped with lavatory pans as the police ward was not connected to the water mains or the sewerage system. They further conceded that there had been no artificial ventilation system, the cells had not been disinfected and detainees had not been provided with bedding. Following a number of warnings from the prosecutor, in April 2004 the director of the police station sent a request for additional funding and took the necessary steps to comply with the legal norms governing conditions of detention. The Government provided the Court with a copy of a prosecutor’s order issued on 15 February 2004. Having seen for himself the conditions of detention in the police station and talked to inmates, the prosecutor noted the following problems requiring immediate improvement: occasional overcrowding, failure to provide inmates with bedding, scarce food and lack of sanitary facilities. The Government described the detention authorities’ response to the prosecutor’s orders, and submitted that after the applicant’s detention in the ward the metal shutters had been removed from the cell windows and inmates had been guaranteed an individual sleeping place and personal space of no less than four square metres. Furniture had been installed in the cells and inmates had started receiving food three times a day. The police station administration was now organising daily walks for detainees, had introduced disinfection of the facilities and was providing inmates with the opportunity to take a shower and wash their clothes and bedding.

Nonetheless, the Government disputed the applicant’s allegations concerning the availability of medical assistance and the provision of warm clothes. In particular, they stated that urgent medical assistance had been ensured by emergency doctors, although the applicant had never requested any medical attention. It had also been open to him to ask the administration of the detention facility IZ-73/3 for warm clothes. He had not used that opportunity. The Government insisted that the applicant had had warm clothes when he had been taken to the police station between 13 and 19 January 2004, because his female partner had sent warm clothes to him at the temporary detention facility in December 2003.

On 9 March 2004 the applicant brought an action in tort against the police station administration and the Ministry of Finance of the Russian Federation. He claimed that the conditions of his detention in the police ward had been inhuman and had led to a serious deterioration in his health.

On 26 May 2004 the Inza District Court partly allowed the applicant’s action and awarded him RUB 500 (approximately EUR 15) in compensation for non-pecuniary damage. The District Court held, in so far as relevant, as follows:

“It was established in a court hearing that the facilities provided to detainees in [the Inza police station] were not adequately furnished, in violation of the legal norms; the representatives of [the police station] explained that the underlying cause was a lack of funds.

The materials of the prosecutor’s inquiry confirm that bedding is not provided in the [detention ward]. The cells are not furnished in compliance with the law. There are no lavatory pans, water, tables, radio, etc. The lighting in the cells is insufficient; the cells are in semi-darkness. There are windows in the cells; however, they are covered by metal bars in such a fashion that they block access to natural light. There is no ventilation in the cells. The air is stuffy with a peculiar odour. The police ward is not disinfected ...

... suspects and defendants have the right to one hour’s outdoor recreation per day ...

The director of [the police station] Mr T. explained in a court hearing that he does not draw up a record of detainees’ daily outdoor recreation; whenever possible [detainees] are taken for a walk once a day.

Following a prosecutor’s decision addressed to the director of [the police station] about the elimination of violations of the Detention of Suspects Act, certain measures were taken: persons detained in [the police station] are now taken for outdoor walks in compliance with the above-mentioned law; light bulbs with a higher wattage are now used in the cells, thus producing more light; and an estimate of expenditure has been drawn up in respect of the shortcomings that have to be eliminated in order to comply with [the prosecutor’s] decision. It appears from the reply of the police station director to [the prosecutor’s decision], that once funds have been received, all the necessary measures will be taken to eliminate the shortcomings.

[The applicant’s] complaints pertaining to the lack of medical assistance are worth consideration.

In the court hearing the representatives of [the police station] did not dispute the fact that the requirements of the Instruction on the Provision of Medical and Sanitary Assistance to Detainees ... are not complied with in [the police ward].

However, the court does not disregard the fact that ... urgent medical assistance was provided to suspects by emergency medical teams in [the police ward]. That fact is corroborated by the records of medical examinations of detainees. [The applicant] did not request the provision of medical assistance.

By virtue of norm no. 3 for daily food rations of persons detained in police detention facilities, detainees ... should have been given the following food ration per twenty-four hours: 550 grams of bread ..., 100 grams of porridge, 20 grams of pasta, 100 grams of meat, 100 grams of fish, 30 grams of margarine, 15 grams of vegetable oil, 30 grams of sugar, 1 gram of tea, 20 grams of salt, 500 grams of potatoes, 250 grams of vegetables, 0.1 gram of bay leaf and 3 grams of tomato sauce.

In the court hearing [the applicant] explained that [on the days when he was transferred between the police station and detention facility IZ-73/3] he received food in [that facility] in the morning and evening, [and that he was] not given food in [the police station]. [During longer stays] he received food once a day [in the ward]. The food ration included a plate of soup, half a loaf of bread and a glass of tea. The representatives of the [police station] did not dispute that fact.

It was established in a court hearing that when [the applicant] was transferred [to the ward] in winter, he did not have winter clothes. He was not provided with winter clothes in detention facility IZ-73/3... [The ward] also did not provide [the applicant] with warm clothes as it did not have them.

The above-mentioned facts confirm that [the applicant’s] right to conditions of detention in compliance with domestic requirements was violated in [the police ward], which caused [him] psychological distress.

Having regard to the requirements of reasonableness and justice, the nature of the psychological distress caused to [the applicant], the temporary character of [the applicant’s] detention in [the police ward]: the limited period of less than twenty-four hours; the fact that [he] was transferred to [the police station] to take part in investigative measures and court hearings, and the number of days during which [he] was detained in [the ward], the court finds that [the applicant’s] claims should be awarded but in a reduced amount.”

The applicant attended the hearings before the District Court.

On 10 August 2004 the Ulyanovsk Regional Court upheld the judgment of 26 May 2004, endorsing the reasons given by the District Court.

In November 2004 the applicant lodged an action against the head of the medical unit of the temporary detention facility IZ-73/3 in Inza, the police station administration and an investigator from the Inza Town Police Department, seeking compensation for damage to his health and loss of earnings. In particular, he argued that he had had no chronic illnesses prior to his detention and that he had fallen ill during his pre-trial detention because of the appalling conditions of his detention in the Inza police ward. He also alleged that the serious deterioration in his health had become apparent in July and August 2004, after his first tort action against the police ward had already been examined by the Inza District Court.

On 24 May 2005 the Inza District Court dismissed the applicant’s action, finding it to be manifestly ill-founded. The District Court concluded that there was no evidence supporting the applicant’s allegations that he had sustained damage to his health as a result of his detention. The applicant was represented by a lawyer during the hearings. On 30 August 2005 the Ulyanovsk Regional Court upheld the judgment.


Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The first, second, third and fourth applicants were born in 1951, 1973, 1940 and 1978 respectively. The second and fourth applicants are the first applicant’s sons and the third applicant is his brother. The first, second and fourth applicants live in Moscow, the Russian Federation.

New political forces came to power in the Ajarian Autonomous Republic (“the AAR”) in May 2004, following the so-called “Rose Revolution” which occurred in the country in November 2003 (see Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, ECHR 2008).

On 25 August 2004 the first applicant, who had previously held the posts of Ajarian Deputy Minister of the Interior and President of the Audit Office, was charged, amongst other offences, with abuse of authority and extortion.

On 26 August 2004 the Public Prosecutor’s Office of the AAR initiated proceedings before the Ajarian Supreme Court to confiscate wrongfully and inexplicably acquired property from the applicants under Article 37 § 1 (1) of the Code of Criminal Procedure (“the CCP”) and Article 21 §§ 5 and 6 of the Code of Administrative Procedure (“CAP”); the legislative provisions in question had been adopted on 13 February 2004.

The public prosecutor affirmed that he had reasonable grounds to believe that the salaries received by the first applicant in his capacity as Deputy Minister of the Interior between 1994 and 1997 and President of the Audit Office between November 1997 and May 2004 could not have sufficed to finance the acquisition of the property, which had occurred during the same time span, by himself, his sons and his brother.

The prosecutor attached to his brief numerous items of evidence (twenty-three documents) which showed that, on the one hand, the first applicant had earned 1,644 and 6,023 euros (EUR) respectively in official salaries when he had occupied the above-mentioned two posts in the Ajarian Government, whilst, on the other hand, the total value of the property that he and the other applicants had acquired corresponded to some EUR 450,000 (1,053,000 Georgian laris (GEL)). The latter figure was based on the expert opinions of two independent auditors who had conducted an assessment of the disputed property on 20 August 2004.

The public prosecutor therefore requested the Ajarian Supreme Court to rule that the items of property concerned, which are listed below, should be confiscated from the applicants and transferred to the State.

The first applicant’s property included:

(a) a house located at 54 Mazniashvili Street, Batumi;

(b) a house located at 13 Griboyedov Street, Batumi;

(c) the first floor of a house located at 60 Gorgasali Street, Batumi;

(d) a share in the capital of the Sanapiro Hotel, Kobuleti;

(e) a Mercedes car;

(f) a flat located at 1 Ninoshvili Street, Kobuleti.

The second applicant’s property included:

(g) two guest houses located at 32 April 9th Street, Kobuleti.

The third applicant’s property included:

(h) a house located at 245 Aghmashenebeli Street, Kobuleti.

The fourth applicant’s property included:

(i) a flat located at 58b Gorgasali Street, Batumi;

(j) a flat located at 4-6 Gudiashvili Street, Batumi;

(k) a flat located at 20 H. Abashidze Street, Batumi;

(l) a house located at 6 General A. Abashidze Close;

(m) a house located at 186 Aghmashenebeli Street, Kobuleti.

On 30 August 2004 the Ajarian Supreme Court accepted the public prosecutor’s request for an examination on the merits. It transmitted the prosecutor’s brief together with all the supporting documents to the applicants, inviting them to submit their written replies and attend an oral hearing scheduled for 7 September 2004.

As attested by the relevant postal acknowledgements of receipt, the Ajarian Supreme Court’s subpoenas were duly served at all four applicants’ home addresses, but only the second applicant, represented by legal counsel, filed written comments on 6 September 2004.

The second applicant submitted that the property mentioned at (b) above in fact belonged to him and not to the first applicant. To prove it he produced a contract of sale dated 2 December 1997, between himself and a certain G.V., plus a document from the Land Registry. He stated that he had purchased the property for EUR 10,174. His father-in-law, with whom the second applicant and his wife lived after they married, had helped him purchase the property. He produced a certificate from the bank stating that his father-in-law had taken out the loan, as well as statements by different witnesses.

The second applicant further explained that the property mentioned at (f) above belonged to Mr N.U., who was neither a close relative nor in any way connected with the first applicant. It was therefore not subject to confiscation.

As to the property mentioned at (g) above, the second applicant alleged that the first applicant had had no part in purchasing or renovating it and that he, the second applicant, was the sole owner. He had bought the property from a lady for EUR 4,069 with the help of his godfather, V.M., who had allegedly lent him 50,000 United States dollars (USD) to renovate the site.

In sum, the second applicant requested that the properties mentioned at (b) and (f) and (g) above be removed from the confiscation list, and that due consideration be given to the evidence he had presented showing that the property concerned had not been wrongfully acquired.

As the first, third and fourth applicants failed to submit written arguments or appear before the Ajarian Supreme Court on 7 September 2004, the latter decided to postpone the hearing until 9 September 2004. The relevant subpoenas were again duly served at those applicants’ home addresses, but none of them appeared before the court, either in person or by designating an advocate, on the second occasion either.

The Ajarian Supreme Court opened a hearing on 9 September 2004 which the first, third and fourth applicants and their lawyers failed to attend, without giving reasons. It was attended by the second applicant’s lawyer, who additionally pleaded that the property mentioned at (d) above also belonged to him, but that he was giving it to the State as a gift. In response, the Ajarian Supreme Court changed the name of the defendant in that part of the case and named the second applicant as the owner of the property concerned. The second applicant further explained that in addition to the money his godfather had lent him, he had bought and renovated the property mentioned at (g) above with his salary as the director of a company in which he owned a quarter of the shares. According to the minutes of that company’s board meeting of 1 July 2004, the profit generated by its activities was EUR 17,987.

On 10 September 2004 the Ajarian Supreme Court gave judgment in the absence of the first, third and fourth applicants, who had been notified twice but had failed to appear without good reason (Article 26 § 1 (2) of the CAP).

Thus, the Ajarian Supreme Court ordered the confiscation of the property belonging to the first applicant listed under (a), (c) and (e), that belonging to the second applicant listed under (d) and (g), and that listed under (i) to (m) belonging to the fourth applicant. It considered in particular that the sums of EUR 1,644 and EUR 6,023 which the first applicant had earned as Deputy Minister of the Interior and President of the Audit Office respectively could not have sufficed to acquire the property in issue, and that the other applicants did not earn enough either. The salaries the first applicant earned were only enough to provide for the needs of a family of four. The court stated that the applicants, in particular the three who had failed to appear before the court, had failed to discharge their burden of proof by refuting the public prosecutor’s claim.

As regards the property mentioned at (g) above, the Ajarian Supreme Court concluded that the second applicant had failed to prove the lawful origins of the money he had used to acquire the property, which had been valued by independent auditors who had assessed both the plot of land and the four guest houses situated on it at no less than EUR 94,000.

Furthermore, the Supreme Court of Ajara considered it established that the property mentioned at (b) above belonged to the second applicant and that the property mentioned at (f) belonged to a third party. The prosecutor’s case concerning these two properties was thus dismissed: concerning the first property, the court accepted the second applicant’s arguments as to its lawful origins.

As regards the third applicant’s property mentioned at (h) above, it was established that this was a family home unrelated to the first applicant’s activities. However, as the property had been refurbished while the first applicant was in public office, making it worth EUR 24,418 according to an official valuation, the third applicant was ordered to pay the State compensation in the amount of EUR 10,174.

All four applicants, represented by legal counsel, as well as the public prosecutor, appealed against the first-instance court’s judgment of 10 September 2004.

The applicants requested that the confiscation proceedings be suspended pending the termination of the criminal proceedings against the first applicant. They complained that the burden of proof had been shifted onto them in the confiscation proceedings. The first, third and fourth applicants also complained that they had not been given an opportunity to submit their arguments before the first-instance court. The first applicant additionally complained that he had been denied the right to be presumed innocent in the confiscation proceedings.

On 22 October 2004 the first applicant’s wife asserted before the Supreme Court of Georgia that she and her son, the fourth applicant, were the owners of the property mentioned at (m) above. She explained that she was a Russian national and had sold the family house in the Smolensk region, with her siblings’ consent, to buy the property in Kobuleti, where her Russian relatives would spend their summer holidays.

On 3 November 2004 a third party, Mr S. Tchitchinadze, applied to the Supreme Court of Georgia, stating that the decision of the Ajarian Supreme Court concerning the property mentioned at (a) above was unlawful because the property had previously belonged to him and was currently the subject of a dispute between himself and the first applicant. On 15 December 2004 Mr Tchitchinadze sent the Supreme Court of Georgia a decision of the Batumi City Court dated 14 November 2004 recognising him as the owner of the property in question. He requested that his property be removed from the confiscation list submitted by the public prosecutor (for more details, see Tchitchinadze v. Georgia, no. 18156/05, § 13, 27 May 2010).

At the hearing the four applicants’ legal counsel contended that the case concerning the first, third and fourth applicants should be remitted for fresh examination because the three men had not been able to participate in the proceedings at first instance. He further complained that the evidence presented by the second applicant had not been given due consideration.

On 17 January 2005 the Supreme Court of Georgia set aside the first-instance decision only in so far as it concerned the property mentioned at (a) above, the house located at 54 Mazniashvili Street in Batumi, acknowledging that the estate was the property of Mr S. Tchitchinadze (for further details see Tchitchinadze, cited above, §§ 16-17). For the remainder, it followed the reasoning of the Ajarian Supreme Court, namely that the first applicant’s income was not sufficient for him and his family members to have acquired the properties in issue, whilst the other applicants’ income was also insufficient. Concerning the arguments of the first applicant’s wife, the Supreme Court of Georgia noted that the land register named only the fourth applicant as the owner of the property mentioned at (m) above.

On 6 December 2004 the first applicant lodged a constitutional complaint. He argued that Article 37 § 1 (1) of the Code of Criminal Procedure (“the CCP”) and Article 21 §§ 5 and 6 of the Code of Administrative Procedure (“the CAP”), adopted on 13 February 2004, were contrary to the following constitutional provisions – Article 14 (prohibition of discrimination), Article 21 (protection of property), Article 40 (presumption of innocence) and Article 42 §§ 2 and 5 (no criminal punishment without law and prohibition of retroactive application of criminal law) of the Constitution of Georgia.

In his constitutional complaint the first applicant mostly reiterated the arguments that he had previously submitted before the Supreme Court of Georgia. In particular, he complained that the confiscation of his property and that of his family members amounted to a criminal punishment being imposed on him in the absence of a final conviction establishing his guilt, and that he should not have been made to bear the burden of proving his innocence, that is, the lawfulness of the disputed property. He also complained that the confiscation of the property in such circumstances was in breach of his right to be presumed innocent of the corruption charges. The first applicant also stated that he and his family had acquired the property in question well before the amendments of 13 February 2004 were enacted and that, consequently, the retroactive extension of those provisions to their situation was unconstitutional. For those reasons, he argued that the confiscation procedure provided for by the impugned provisions of the CCP and CAP had been arbitrary and amounted to a violation of the constitutional guarantee of protection of his private property.

By a judgment of 13 July 2005 the Constitutional Court, after having heard the parties’ arguments and evidence from a number of legal experts and witnesses, dismissed the first applicant’s complaint as ill-founded on the basis of the following reasoning.

First, drawing an analogy with Article 1 of Protocol No. 1 to the Convention, the Constitutional Court stated that the Georgian constitutional provision protecting the right to property (Article 21 of the Constitution) likewise did not exclude the possibility of deprivation of property if such a measure was lawful, pursued a public interest and satisfied the proportionality test. The court then went on to emphasise that only lawfully obtained property enjoyed full constitutional protection; in the first applicant’s case there had been a legitimate suspicion as to the lawful origins of the property, a suspicion which he and his family members had been unable to refute in the course of the relevant judicial proceedings.

The Constitutional Court further stated that the administrative confiscation proceedings provided for in Article 37 § 1 (1) of the CCP and Article 21 §§ 5 and 6 of the CAP, could in no way be equated with criminal proceedings, as no determination of a criminal charge was at stake; on the contrary, such proceedings were a classic example of a civil dispute between the State, represented by the public prosecutor, and private individuals. Given the “civil” nature of the proceedings in question, it was acceptable that the burden of proof in the proceedings should be shifted onto the respondent, the second applicant. Referring to its own comparative legal research and the Court’s judgments in the cases of Raimondo v. Italy (22 February 1994, §§ 16-20, Series A no. 281A) and AGOSI v. the United Kingdom (24 October 1986, §§ 33-42, Series A no. 108), the Constitutional Court added that such civil mechanisms, involving the forfeiture of the proceeds of crime or otherwise unlawfully obtained or unexplained property, were not unknown in a number of Western democracies, including Italy, the United Kingdom and the United States of America.

As to the issue of the alleged retroactivity of the application of the amendment of 13 February 2004 introducing the administrative confiscation procedure, and the second applicant’s presumption of innocence, the Constitutional Court ruled that since the proceedings in question had been “civil” and not “criminal”, the above-mentioned criminal-law guarantees could not apply. Furthermore, the amendment of 13 February 2004 had not introduced any new concept but rather had regulated anew, in a more efficient manner, the existing measures aimed at the prevention and eradication of corruption in the public service. In particular, the Constitutional Court referred to the 1997 Act on Conflict of Interests and Corruption in the Public Service, which had required all public officials not only to declare their own property and that of their family and close relatives, but also to show that the declared property had been acquired lawfully.

The Constitutional Court concluded that the amendments of 13 February 2004 undoubtedly served the public interest of intensifying the fight against corruption and that the test of proportionality had also been duly satisfied during the confiscation proceedings, which had been conducted fairly before the domestic courts.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1982 and lives in Kartsa, in the North Ossetia-Alania Republic.

According to the applicant, on 10 January 2007 at approximately 10.30 p.m. the applicant and K. were walking down the street in their town. A white Lada car drove up to them and stopped. Two persons in plain clothes got out, one of whom was a local police lieutenant, Ts. While Ts. was talking to the applicant and K., two more vehicles – an Audi and a Volkswagen – drove up. Seven or eight men in plain clothes got out of the cars. They pushed the applicant into one of the cars. K. broke free and escaped.

The individuals who had arrested the applicant took him to an office on the third floor of the police station, where they punched and kicked him and insulted him, shouting that “all Ingush should be crushed”. From time to time they put a black plastic bag over his head to suffocate him. They took off his shoes and beat him on his heels. When the applicant lost consciousness, they poured cold water over him to revive him. They then took him to another office on the first floor.

There the policemen planted a grenade in the pocket of his jacket. They searched him and “found” the grenade. The applicant was then interviewed by the investigator. During the questioning, he told the investigator about the arrest (abduction) and the planting of the grenade.

According to the Government, on 10 January 2007 at around 10.15 p.m. the police officers asked the applicant to go with them to the police station. The applicant refused, shouting obscenities. His reaction made the officers suspect that he might be in possession of a weapon which he could use against them. They made the decision to use force to arrest the applicant, and when he resisted they restrained him, using a combative technique. The police officers then took the applicant to the police station, where he was subjected to a medical examination due to his inebriated state. The medical report prepared on 11 January 2007 indicated that the applicant did not have any injuries.

On 11 January 2011 the investigator questioned the police officers who had carried out the applicant’s arrest. Police captain T. submitted that the decision to arrest the applicant had been taken on the basis of “operative” information received on 10 January 2010 that the applicant was in possession of firearms and ammunition and that he was the leader of a group of young people of Ingush ethnic origin who disturbed peace in the town and provoked tension between Ingush and Ossetian population. He stated that the policemen had stopped the applicant in the street, and had then put him in the car and taken him to the police station, where they had searched him and found a grenade. Lieutenant Ts. confirmed T.’s statement as regards the applicant’s arrest.

On 11 January 2007 police captain R. instituted criminal proceedings against the applicant on the charge of illegally possessing a grenade. At 9 p.m. the applicant signed an undertaking not to leave town and was released pending investigation.

On the same date the applicant’s parents retained a lawyer to represent him. The lawyer filmed the applicant’s injuries using her mobile phone.

On 12 January 2007 forensic medical expert Tkh. examined the applicant. The applicant submitted that on 10 January 2007 a group of persons unknown to him had “beaten him up”. They had kicked him, had beaten him with a stick and had throttled him. The medical expert documented the following injuries: “a bruise near the upper edge of the right shoulder blade measuring 4.5 by 4 cm ...[;] similar bruises on the rear surface of the chest at the level of the sixth to ninth ribs measuring 10 by 8 cm and on the rear surface of the chest at the level of the tenth to eleventh ribs measuring 8 by 6.5 cm; [bruises] near the sixth to eighth vertebrae measuring 8 by 1.5 cm”. The expert concluded that the bruises resulted from the impact of blunt solid objects, possibly at the time and in the circumstances indicated by the applicant.

On 16 February 2007 the prosecutor’s office discontinued the criminal investigation against the applicant on the charge of illegally possessing a grenade and advised him of his right to “rehabilitation”. The prosecutor found as follows:

“The investigative actions were conducted in violation of [the rules of criminal procedure] and the proceedings should be discontinued in view of the following:

The case file contains no information as regards the reasons for the [applicant’s] arrest;

[The applicant] was not searched at the place of his arrest ...; instead, the search was carried out at [the police station];

In contravention of [the rules of criminal procedure], ... the taking of the [applicant’s] fingerprints was not documented ... ;

The case file contains no evidentiary material as regards the examination of the grenade or the detection and recovery of the fingerprints; accordingly the findings set out in the forensic dactyloscopic expert report must be regarded as inadmissible evidence ... .”

On 19 February 2007 the deputy municipal prosecutor opened a criminal investigation into the applicant’s unlawful arrest and detention at the police station. On 1 March 2007 the applicant was given victim status in respect of the crime and questioned as to the events of 10 January 2007.

The criminal investigation into the applicant’s allegations about his illtreatment in police custody was discontinued on several occasions. The decisions in this regard were taken on 19 April, 23 May and 20 November 2007, and 29 June 2012.

On 24 December 2014 the decision of 29 June 2012 was quashed and the case was re-opened. The acting head of the regional investigative committee held that the earlier investigation had been perfunctory and ordered further investigation.

On 12 January 2015 the deputy regional prosecutor studied the evidence in the applicant’s case file and identified the following defects in the investigation: (1) the investigating authorities had failed to complete all the necessary actions in order to clarify the facts in connection with the alleged ill-treatment; (2) no findings had been made as regards the existence of the applicant’s injuries; (3) the contradictions in the statements made by the forensic medical expert and the applicant had not been reconciled; (4) the investigating authorities had failed to question the forensic medical expert and the forensic expert who conducted a dactyloscopic examination; (5) the investigating authorities had failed to establish whether the police had conducted an internal inquiry in response to the applicant’s allegations of ill-treatment; (6) the investigating authorities had not conducted a faceto-face confrontation between the police officers and the applicant in order to reconcile the contradictions in their statements; (7) the investigating authorities had failed to identify the persons who had been present at the police station when the applicant was searched.

It appears that the criminal investigation is still ongoing at the present time.

According to the Government, on 19 March 2009 the Primorskiy District Court of Novorossyisk found the applicant guilty of robbery and sentenced him to two and a half years’ imprisonment. On 8 November 2011 the applicant was released on parole.


CASE OF SIMON PRICE v. THE UNITED KINGDOM

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms) read in the light of Article 6 - (Art. 6) Right to a fair trial (Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicant was born in 1945 and is currently detained in HMP Long Lartin.

Between 16 May and 13 July 2005 the applicant was tried before a judge and jury in the Crown Court at Snaresbrook for various offences relating to an attempt, together with other unknown persons, to import cocaine worth GBP 35 million into the United Kingdom from Guyana via ports in the Netherlands and Belgium.

Pursuant to Her Majesty’s Courts and Tribunals Service policy, notes of recordings of trials are destroyed after five years. Although the present application was lodged with the Court in 2007, consideration of the applicant’s complaints was adjourned pending judgment in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011. Consequently, by the date the United Kingdom Government received notice of the application, transcripts of the applicant’s criminal trial had for the most part been destroyed.

However, from the information available, the circumstances of the trial which give rise to the present application may be summarised as follows.

On the 21 June 2004 a ship called the “Lee Frances” entered the port of Rotterdam. Part of the cargo was a single container which contained palletised drums of molasses from Georgetown, Guyana. The following day the container was searched by customs officials and certain drums – purportedly containing molasses – were found to contain 700 kg of high purity cocaine worth GBP 35 million. The officials refilled the drums with dummy contents and the ship continued to Antwerp where the container was offloaded. The applicant was arrested and interviewed on 29 June 2004, shortly after contacting HM Revenue and Customs to make enquiries about the container. He was charged, inter alia, with assisting in the commission outside the United Kingdom of an offence punishable under the law of Guyana (the export of drugs from that country), contrary to section 20 of the Misuse of Drugs Act 1971, and with the attempted importation of drugs to the United Kingdom.

There were allegations that the applicant had been involved in “jury fixing” in a previous, unrelated trial. Therefore, before the trial the prosecution applied to the court for the following security measures:

the assignment of a security team to chaperone the jury at all times;

the identification of the jury by number and not by name;

the verification by police of the identity of anyone wishing to enter the courtroom’s public gallery;

the search of members of the public entering the building;

the retention of all visitors’ mobile telephones during the trial;

the erection of protective screens to shield the jury and the applicant from the public gallery; and

the covering of the glass panels in the doors to the court room to prevent people seeing into the room.

The defence were informed of the application and given the opportunity to oppose it. They initially did so on the basis that the protective screens, taken together with the other security measures, would lend a sinister feel to proceedings which would be likely to prejudice the applicant in the eyes of the jury. However, at the conclusion of argument the defence indicated that they were prepared to withdraw their objections provided that the whole of the public gallery was covered rather than just part of it, as had been originally suggested. The trial judge therefore made the order requested.

The defence subsequently attempted to withdraw that concession on the basis that the physical appearance of the screens was more imposing than had been anticipated. They again suggested that the whole trial could be heard in camera but this proposal was rejected by the trial judge, who did not consider that the screens could in any way impinge upon the fairness of the trial.

It was accepted by the prosecution and the defence that the main issue in the case was whether or not the applicant had intended to import drugs into the United Kingdom.

It was the prosecution’s case that the applicant had purchased the cocaine in Guyana under the assumed name of “David Keen”, the manager of a company called Premier Molasses, and that he had intended to import the cocaine into the United Kingdom. The shipment containing the cocaine had been the last of four shipments procured by Premier Molasses from Guyana. The previous three shipments had been delivered via Antwerp to various locations in the United Kingdom, including to an address belonging to an acquaintance of the applicant. There was evidence of telephone calls between the applicant and his acquaintance, which coincided with the deliveries, as well as payments by the acquaintance to the applicant’s account in Guyana. It was suggested by the prosecution that the previous three shipments had been practice runs for the fourth shipment, which contained the cocaine. Although there was one witness in Guyana who stated that the drums containing the cocaine were to be offloaded in Antwerp and transported to the Netherlands (see paragraph 31 below), the prosecution argued that this had been an attempt by the applicant to set up a defence should he be caught.

VO, who was based in Antwerp, was the customs broker for Premier Molasses’ shipping agents.

VO was responsible for issuing each shipment with an agricultural import licence to confirm that the shipment complied with European Union quotas. He was also responsible for guaranteeing the payment of duty on each shipment.

He made three separate statements between 30 June 2004 and 20 January 2005. He also supplied the prosecuting authorities with the original files relating to all four shipments from Guyana. This included all documents relating to the first three shipments, for which he had arranged carriage to the United Kingdom, and correspondence from David Keen asking him to arrange transport for the fourth shipment to the United Kingdom.

Having provided the statements and documentary evidence, VO refused to give live evidence at the applicant’s trial. VO’s explanation for refusing to attend court was recounted in the evidence of DH, a United Kingdom customs official who had been present when VO was interviewed in Belgium. According to DH (who gave evidence at trial), VO believed that, in accordance with Belgian practice, having spoken to investigators on three separate occasions, he had done enough.

The prosecution made several attempts to convince VO to appear as a witness before the trial began. In particular, they wrote to him emphasising the importance of his evidence, making it clear that all expenses would be met and inconvenience kept to a minimum, and informing him that if he did not attend his previous assistance might be wasted. They also tried to reach him through his employer but were told that he was on leave and could not be contacted.

Despite knowing of VO’s reluctance to attend for several months before the trial, the prosecution opened their case referring to his evidence. Two weeks into the trial, when it became clear that VO would not testify, the trial judge directed the prosecution to contact him again. In a letter to VO, the prosecution offered various options to him, including giving evidence via live video link from his home in Belgium. Meanwhile, the defence also wrote to him seeking clarification on apparent inconsistencies in his account. All of these efforts were ignored.

Leave was then given for VO’s statements to be read to the jury pursuant to section 116 of the Criminal Justice Act 2003.

When interviewed, VO provided information about the logistical arrangements for the routing of the fourth shipment to the United Kingdom. He stated that:

“It was clear for [sic] all the files that the destination of the load was England. Premier Molasses had already applied for an import licence for the United Kingdom for the job relating to the container and sent it to us. The transport operation ultimately did not take place because I did not receive an original bill of lading; that meant it was physically impossible for me to take delivery of the container.”

He also gave evidence of his previous dealings with “David Keen”. He explained that, whilst they had never met in person, he and Mr Keen had done business in May and October 2003, at the time of the importation of two of the earlier three shipments, both of which had been destined for the United Kingdom.

VO’s statements referred to a telephone call he had received from a woman at Premier Molasses, who told him that the contents of the container were not to be imported to the United Kingdom but instead sold to a Dutch company. He had asked her for written instructions and details of the Dutch firm, but none was ever given.

A United Kingdom customs officer, BT, referred in his evidence at trial to a conversation between the Belgian shipping agents and a woman from Premier Molasses who he believed was called “N”. This would appear to be the same telephone call referred to by VO (see paragraph 23 above). However, in one of his statements VO indicated that he did not know of anyone called “N” in connection with the case.

The applicant claimed that BT could only have obtained this information by the interception of the telephone call. He further claimed that, as a consequence, the “discrepancy” between the evidence of BT and VO could not be further investigated as the prosecution indicated that there was a danger that the prohibition on the disclosure of intercept evidence (including telephone intercept evidence) might be compromised (see sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) at paragraphs 55-56 below). However, the Government have submitted a transcript of BT’s evidence which demonstrates that the prosecution did not object to any question based on the prohibitions in RIPA.

One month prior to BT giving evidence a discussion had taken place between the trial judge and counsel in the absence of the jury. The discussion touched on issues of intercept evidence and on the “N” call. In the course of the discussion, the defence argued that, since they could not seek disclosure of intercept evidence, when any such issue arose the prosecution should be obliged to satisfy themselves that there was nothing in the material to which they had or could have access which would either undermine their case or assist the defence case. The prosecution neither confirmed nor denied that any interception had taken place, or that they had or had not sought any intercept material. However, they confirmed that they had revisited their duty of disclosure and had nothing further to add. The trial judge subsequently declined to make any ruling on the issue.

The prosecution led evidence that “David Keen” was a false identity assumed by the applicant in the context of business carried out on behalf of Premier Molasses. In particular, they submitted evidence from the Home Office that there was no record of any person by that name. There were also three witnesses from Guyana who identified the applicant as David Keen and faxes in the name of David Keen sent from the applicant’s address.

The prosecution relied on various pieces of logistical evidence which supported their contention that, as with the previous three shipments, the true destination of the fourth shipment was the United Kingdom. This included details of bank transactions, the issuing of shipping licences and other similar communications between Premier Molasses and VO, and the fact that David Keen had pushed for early delivery of the shipment to the United Kingdom. The paperwork relating to the fourth shipment was consistent with that relating to the previous three shipments.

Finally, the prosecution invited the jury to draw adverse inferences as to the applicant’s guilt based on his failure to disclose facts material to his defence when first interviewed. These “material facts” included his apparent belief that he was importing cannabis into the Netherlands and his allegation that VO was a party to the conspiracy (see paragraph 30 below).

The applicant’s initial defence was that he believed that he was arranging a shipment of sugar but had been duped by business associates into arranging the importation of drugs. However, during the trial it came to light that he was fabricating evidence to concoct this defence. Consequently, the applicant admitted that this defence was untrue. Thereafter, he advanced a new defence, which was that he had been involved in a conspiracy to traffic cannabis from Guyana to the Netherlands (via Antwerp) and that VO had been party to this conspiracy. He continued to deny the main count on the indictment, which concerned the attempted importation of drugs to the United Kingdom. However, on 23 June 2005 he pleaded guilty to the separate offence under section 20 of the Misuse of Drugs Act 1971 (see paragraph 8 above).

The applicant relied heavily on the evidence of one of the shipping agents in Guyana, AA, who recalled a conversation in which the applicant told him that the drums which were later found to contain drugs were to be unloaded at Antwerp.

The applicant accepted that import licences for the fourth shipment had been made out for the United Kingdom but claimed that this had been a mistake by customs. Those licences had been returned by Premier Molasses using registered delivery and replaced with the appropriate licences for the Netherlands.

The trial judge’s summing-up contained the following directions to the jury.

On the measures taken to ensure the safety of the jury, the trial judge said:

“Let me remind you of what I said at the beginning of the case about the special security measures taken during the trial. These precautions exist to protect both you, you the jury, and the defendant from any outside interference. Perhaps, as I said at an early stage when we started, it may be that I am being overly cautious, but make no mistake about it at all, none of these measures are to be regarded as any reflection whatsoever on the defendant and they are entirely irrelevant to the issue as to whether he is ‘guilty’ or ‘not guilty’ and we all know that something can appear sinister, which on investigation turns out to be completely innocent. We had, perhaps, an example of it during the case, when someone feared that their spouse was being followed, the matter was fully investigated and although rightly reported to me, it was, in fact, completely innocent. It just demonstrates how careful we must be and assumptions can often be wrong.”

In relation to the reading of VO’s statements, the trial judge directed the jury:

“[A]s you know the general rule in the courts is that unless evidence is agreed it has to be given orally from the witness box, unless there is an admission, or there is an agreement on both sides.

Well there is no agreement as to the accuracy of what [VO] says. On the contrary, the prosecution have been allowed to adduce the evidence; the defence do not accept a word of it - they say that he is on it and that he has acted in a thoroughly dishonest way.”

He then considered the practical difficulties that arose in relation to VO’s evidence:

“[A]s he did not come to court, his evidence does have certain limitations and I want to draw them to your attention.

First of all, when someone’s statement is read out, you do not have the opportunity of seeing him in the witness-box, seeing him in the flesh and sometimes when you do see a witness in the flesh you do get a much clearer idea of whether that evidence is honest and accurate.

Secondly, his evidence has not been tested by the defence under cross-examination and, therefore, you have not had the opportunity of seeing how the evidence survived that form of challenge or test. So you must, therefore, consider the evidence of [VO] in the light of those limitations and you should only act upon it if, having taken those matters into account, you are, nevertheless, sure that it is reliable.”

The trial judge gave a similar warning as to the limitations of VO’s evidence in the absence of cross-examination just before he summarised VO’s evidence.

After this, and having reviewed the efforts made to oblige VO to attend court, the trial judge stated:

“What I seek to emphasise, in fairness to the defendant is that when you assess the evidence of [VO], you look at all the circumstances, throw it all into the melting pot, all the warnings that I have given you, take it all into account and then decide the weight you can properly attach to it; it is a matter for you.”

Whilst they were considering their verdict, the jury asked for – but was refused – copies of the transcripts of VO’s statements. Instead, the trial judge re-read the relevant part of his summing-up summarising those statements. Having done so, he also reminded the jury of the criticism which had been made of the statements by the defence and of his previous warnings to them.

The applicant was convicted unanimously by the jury on 13 July 2005. He appealed against his conviction to the Court of Appeal.

The application for leave to appeal was initially considered and rejected by a single judge of the Court of Appeal.

The applicant then renewed his application to the full court, which dismissed the appeal on 20 February 2007.

There were four grounds of appeal before the Court of Appeal which are relevant to the present application.

First, it was argued that the admission of VO’s statements had violated Article 6 of the Convention and, in particular, that the trial judge would never have allowed the statements to be read had he been aware that BT’s evidence regarding the “N” telephone call would cast doubt on VO’s reliability.

Secondly, the applicant argued that the prosecution had failed to comply with their duty of disclosure under the Regulation of Investigatory Powers Act 2000 in respect of the telephone conversation involving VO and “N”, since this had been important exculpatory evidence.

Thirdly, the applicant maintained that either evidence of the interception of the telephone conversation should have been disclosed to the trial judge or the trial should have been abandoned.

Fourthly, again relying on Article 6 of the Convention, the applicant argued that the security measures in place to protect the jury had violated his right to a fair trial. In support of this fourth ground, he relied on a witness statement prepared by a journalist who had tried to cover the trial. In the statement the journalist indicated that when she first tried to enter the courtroom, she was told by a court official that the trial had finished. However, after remonstrating with the official she was allowed to enter. Once inside, the proceedings were inaudible on account of the screens sealing the public gallery. When she asked if anyone else had complained about the arrangements, she was told that she was the first person to try to attend the trial. Furthermore, she had been told that she could not report anything because there were reporting restrictions in place. Finally, the journalist stated that although she had attended major criminal trials throughout the United Kingdom, she had never encountered such measures, and she considered that as a result the applicant’s trial was to all intents and purposes a secret trial.

In respect of VO’s non-attendance at trial, the Court of Appeal acknowledged that the prosecution’s failure to mention this fact until late in the proceedings was a cause for concern. However, it considered that the dispute over whether VO knew “N” was a “very slender foundation indeed” for any suggestion that his evidence was so unreliable that it ought not to have been allowed to be read.

The court also noted the advantages that the applicant had obtained through VO’s absence:

“It meant that, in so far as he [VO] gave evidence inconsistent with that of the applicant, he was not in court to make that contention good. While the statement by him that the container was intended for the United Kingdom was damaging to the applicant’s case, the applicant had the evidence that was available before the jury to the effect that he had identified particular pallets that were to come out of the container at Antwerp [the evidence of the Guyana shipping agent AA]. It was of assistance to the applicant to have the evidence of [VO] about the instructions that the cargo had been sold to a Dutch company.”

The court was therefore not satisfied that there would have been any positive advantage to the defence in calling VO and thus concluded that there was no arguable basis for criticising the admission of his statements.

The court then turned to the ground of appeal concerning the prosecution’s duty of disclosure. It did not consider that the facts were such as to afford any basis for suggesting that the prosecution had failed either to comply with their duty of disclosure or to follow the Attorney General’s guidelines on the matter (see paragraph 59 below). In fact, even taking this ground together with the absence of VO, the Court of Appeal declared it impossible to find any arguable basis for believing that the prosecution had not fulfilled its duty to ensure that any questions which arose would be examined properly and in accordance with the relevant duties.

Finally, as far as the security measures were concerned, the court began by noting a concession by counsel for the applicant that this ground alone, even if successful, could not compromise the safety of the applicant’s conviction. The court recounted the history of the pre-trial proceedings and noted that the essence of the complaint was largely based on the security screens. The court acknowledged that the security measures clearly caused difficulties but had not been raised by the journalist or anyone else at the time. Ultimately, however, the court concluded that the issue had been dealt with “fully and fairly” by the trial judge.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Conditional release;Length of pre-trial detention)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1972 and is currently detained at the Corradino Correctional Facility, Paola.

On 11 December 2010 the applicant was arrested by the police on suspicion of having murdered his former partner.

On 13 December 2010 he was charged before the Court of Magistrates, as a Court of Criminal Inquiry, with inter alia, wilful homicide. He was remanded in custody thereafter.

It appears from the acts of the proceedings that from the applicant’s arraignment until August 2012, the applicant filed ten requests for bail which were all rejected after the relevant submissions were made, including oral hearings. Apart from the hearings related to the bail applications and other specific requests, fourteen hearings were held where scores of witnesses gave evidence and another six hearings were held where nothing happened and the case was adjourned.

In the meantime on 10 April 2012 the applicant instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional competence. He complained of a violation of Article 5 § 3 of the Convention in so far as he had been detained for more than fifteen months since his arrest.

By a judgment of 27 June 2012 the Civil Court (First Hall) rejected the applicant’s claims. By a judgment of 23 November 2012 the Constitutional Court rejected the applicant’s appeal and confirmed the appealed judgment.

After the applicant had been held in custody for the maximum period of detention allowed by law, he became entitled to bail in accordance with Article 575(6)(a)(iii) of the Criminal Code (see relevant domestic law).

Consequently, following his request of 17 August 2012, by a decree of 22 August 2012, the Court of Magistrates granted the applicant bail subject to the following conditions: that he appears for all the scheduled hearings in the criminal proceedings; that he does not go abroad or abscond; that he does not contact or approach, directly nor indirectly, witnesses for the prosecution; that he does not commit a crime of a voluntary nature while released on bail; that he present himself at the District Police Station every day between eight a.m. and eight p.m.; that he be home not later than ten p.m. and that he does not leave home before six a.m. of the following day; that he inform the Police of any change of address by not later than twelve hours of such a change; that he deposit by way of security the amount of 15,000 euros (EUR) in the court registry; and that he undertake a personal guarantee of EUR 25,000. In the event of any bail condition being breached, the entire amount of EUR 40,000 would be forfeited in favour of the State.

On 3 September 2012 the Attorney General appealed against the decision of 22 August 2012, as he considered the conditions too lenient and that they would not serve as a sufficient deterrent against absconding or interfering with the proper administration of justice. He requested the court to set a higher deposit reflecting the nature of the crimes with which the applicant was accused and to amend the conditions by disallowing the applicant to be in locality R. where the victim and her family resided.

On 6 September 2012 the applicant objected to the Attorney General’s appeal, noting that he had remained in detention precisely because he could not fulfil the conditions imposed. At the same time he filed an application requesting the court to reduce the amount to be deposited by him. He explained that since he had been detained for more than twenty months he was unemployed, and thus he could not pay the relevant amount. He submitted two documents showing that he received unemployment benefits in the sums of EUR 1,262.22 and EUR 1,573.34 in 2009 and 2010 respectively and offered to explain his financial situation ( if necessary with further documentary evidence) during an oral hearing. It appears from the acts of the proceedings that he then submitted tax assessment forms of the previous twelve years.

By a decision of 7 September 2012 the Criminal Court, having examined the documents submitted by the applicant, rejected the Attorney General’s request to increase the deposit but added the condition that the applicant could not be in the vicinity of locality R. It also rejected the applicant’s request considering that the Court of Magistrates had correctly applied its discretion.

On 9 October 2012 the applicant filed another application requesting the court to reduce the amount of the deposit. He complained that although he had been in detention for twenty-two months, and was entitled to bail, he had nevertheless remained in detention since he (and his family) could not afford to pay such an excessive amount by way of deposit. He further noted that the main witnesses had already been heard in the committal proceedings.

On 10 October 2012 the Attorney General objected to the applicant’s new request, noting that the applicant was not reliable, and that his inability to pay the deposit showed that he would be unable to pay the personal guarantee if he were to breach his conditions. Moreover, the family of the victim, particularly her daughter, lived in fear of the applicant.

By a decree of 18 October 2012, having seen the request and the reply submitted by the Attorney General, the court rejected the applicant’s request.

On 4 December 2012 the applicant filed another application requesting the court to reduce the amount that he had to deposit. He noted that he had remained in detention for three and half months since the decree granting him bail due to his inability to pay. The Attorney General objected in view of the seriousness of the crime.

On 7 December 2012 the court again rejected the applicant’s request; it noted that its previous decisions had determined the deposit in order to strike the requisite balance between, on the one hand, the seriousness of the crime and the potential punishment, and, on the other hand, the obligation of the accused to fulfil the imposed conditions.

On 29 January 2013 the applicant filed yet another application requesting that the amount of deposit be reduced. He noted that he had been in detention for another five months since the decree granting him bail, and yet he was still not in a position to benefit from such bail - to which he was entitled by law - since he could not pay the deposit imposed. The Attorney General objected considering that the amount imposed was adequate in view of the severity of the crime and the circumstances of the case. On 5 February 2013 the applicant filed a note reiterating his request.

By a decree of 5 February 2013 the court, having considered the parties submissions, as well as its decree of 7 December 2012, was of the view that it should not alter the considerations made in the latter decision. It, thus, rejected the applicant’s request.

On 22 July 2013 the applicant requested the court to accept his mother Ms J.G. (and other relatives) as surety in lieu of the deposit. He referred to a property the relatives had inherited which they were willing to put forward as a guarantee instead of the deposit. The Attorney General requested that the applicant submit relevant evidence of the inheritance and the value of the property and that the court hear relevant witnesses in this connection, before making his final submissions. He further highlighted that a public deed would be required for the purposes of the relevant hypothec.

On 30 July 2013 the applicant submitted all the relevant documents concerning the property at issue which was valued at EUR 95,000.

On 2 August 2013 the court accepted that the applicant’s mother stand as surety by means of a hypothec on the above-mentioned property which she owned together with other relatives. Such property was to serve as a guarantee for the applicant observing the conditions imposed; in the event of a breach of any of those conditions, the property would be forfeited in favour of the Government of Malta.

Subsequently on 6 August 2013 the applicant having signed a personal guarantee of EUR 25,000 and his mother having effected the relevant hypothec as guarantee, the applicant was released from custody after thirty-two months of pre-trial detention.

In the meantime the committal proceedings and hearing of witnesses continued throughout this time; further witnesses were heard during three hearings and another four hearings were adjourned. On 31 July 2013 the prosecuting authority had declared that it did not have further evidence to produce.

In the meantime on 6 February 2013 the applicant instituted a new set of constitutional redress proceedings, complaining of a violation of Article 5 § 3 of the Convention in connection with the “exorbitant sum” requested (in particular reference to the sum set as deposit) which did not allow him to effectively enjoy bail.

By a judgment of 3 July 2013 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s claims.

It held that when a court accepted that an applicant had to be granted bail, that court had to establish the proper conditions which the applicant had to satisfy to be released and yet appear for court proceedings. If the guarantees included the deposit of a sum of money, such pecuniary condition had to be considered by reference to the person of the accused and his means as well as his relation with the person who would act as his surety. The court referred to the Court’s judgment of Iwanczuk v. Poland (no. 25196/94, § 66, 15 November 2011) where it had been held that the accused whom the judicial authorities declared themselves prepared to release on bail must faithfully furnish sufficient information, that can be checked if need be, about the amount of bail to be fixed. The court noted that the applicant did not satisfy this obligation. It was his duty to provide the courts with information on his income, savings and list his assets. Nevertheless, the applicant had only provided copies of self-assessment forms for purposes of income tax for the years between 1998 and 2011. According to the court, if an applicant argued that the deposit was too high, he had to show the court what he could afford by providing a list of his assets and property, even if this meant that he had to conduct researches in the Public Registry, and provide the relevant documentation. In its view an applicant had to show not only that he did not have the necessary means to deposit the sum requested but also that he was in an objective impossibility of finding the necessary means. He further had to show that he was unable to find persons who offered to act as surety. It was only when all this was shown that an applicant would have satisfied his duty to furnish sufficient information, thus enabling the court to make an objective assessment.

In the court’s view, in the present case, bearing in mind the seriousness of the crime and the potential punishment, the applicant had not brought enough evidence before the courts of criminal justice to substantiate his claim that those courts had imposed excessive conditions (including that referring to the amount of deposit). It further noted that the Constitutional Court [in the first round of proceedings] had not been convinced that there would be no tampering with evidence. Indeed even though the collection of evidence had come to an end, one had to guarantee that the evidence remained intact and thus relevant guarantees were necessary.

The applicant appealed.

By a judgment of 31 January 2014, the Constitutional Court rejected the applicant’s appeal and confirmed the judgment of the first court.

The Constitutional Court referred to its judgment in the case The Police v. Austine Eze and Osita Anagboso Obi, of 25 October 2013, where it had held that there must be proportionality between the amount to be deposited by the applicant for his release on bail and his financial circumstances. The level of bail set out should not be too high and it should ensure the presence of the accused at the various stages of the criminal proceedings. It also made reference to the Court’s judgment in Mangouras v. Spain ([GC], no. 12050/04, § 79, ECHR 2010) as well as the Constitutional Court’s judgment Salvatore Gauci v. Attorney General, of 31 July 1998, where it had been held that in establishing the amount to be deposited as security, the court must also consider other circumstances such as the seriousness of the offence and the danger to society.

The Constitutional Court held that the onus of proving that the amount of deposit was too high for the applicant when considering his financial means lay with the applicant himself. An applicant must provide information to the court on his financial situation and on the real possibility of finding a surety able to guarantee the observance of the conditions imposed. In the present case, the Constitutional Court held that the latter option had not been contemplated by the applicant and it was only after various requests to have the amount reduced that he eventually proposed his mother to act as a surety. It noted that although the applicant’s mother did not own the tenement she had used for the purposes of the guarantee, it was already in her possession for a period of time before the last application for the reduction of the amount was filed. Thus, the applicant could not argue that he could not have taken this course of action before. Although the applicant relied on the Court’s judgment of Iwanczuk (cited above), where a violation had been found on the basis that it took four months for the Polish authorities to adjust the conditions for bail, the Constitutional Court held that (even if this were the case), the applicant – who was legally represented had not explored all avenues to satisfy the courts with an adequate guarantee for the observance of the conditions of bail. No explanation as to why he only obtained a guarantee in the form of a surety at a subsequent stage was provided by the applicant.

Noting that the applicant had stated that at times he worked as a bus driver and as a horse trainer, apart from other activities, the Constitutional Court distinguished the applicant’s case from that of a person who was living on relief payments. The fact that the applicant had at times worked and had a salary or wage made the need to provide information to the court on his means more relevant.

On the fixing of the amount of the deposit, the Constitutional Court referred to Article 576 of the Criminal Code (see relevant domestic law below) which provided the factors to be considered for this purpose. Under Maltese law these included the seriousness of the offence and the applicable punishment. The Constitutional Court considered that although the law also referred to the financial situation of the person accused, this factor was not to be taken in isolation – it was for the court fixing the amount of deposit to consider all the factors taken together and not separately. In the present case bearing in mind those factors, the amount of deposit of EUR 15,000 was justified especially since the law provided for the opportunity to provide a surety – a course of action subsequently undertaken by the applicant.

In the Constitutional Court’s view the criminal courts’ concern that the applicant did not give the necessary guarantees that there would not be any tampering with evidence, subsisted throughout the whole criminal proceedings.

By a decision of 7 April 2014 the applicant was found guilty of breaching his bail conditions and his bail was revoked. Further bail requests were lodged and rejected until 26 January 2015 when a bill of indictment was issued against the applicant. From August 2013 until his indictment some ten hearings were held where nothing happened and the case was adjourned.

On 16 June 2015 the Criminal Court was informed that a plea bargain had been concluded between the applicant and the prosecution.

On 20 July 2015, following the applicant’s admission to all the charges against him, the Criminal Court pronounced a guilty verdict and sentenced the applicant to thirty-five years imprisonment and to the payment of court experts’ fees.


Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant, Mr Sami Özbil, is a Turkish national, who was born in 1977 and is detained in the Kocaeli Prison. He was represented before the Court by Ms Ö. Gümüştaş, a lawyer practising in Istanbul.

By a decision dated 15 May 2009 (no. 2009/29/52), the Education Committee of the Kocaeli prison decided not to allow the applicant to receive a copy of the daily newspaper, Hawar, published in Kurdish. In rendering its decision, the committee held that it was not in a position to establish whether the content of the publication was obscene or likely to endanger security in the prison.

The applicant’s appeals, lodged with the Kocaeli Enforcement Judge and the Kocaeli Assize Court, were dismissed on 16 June 2009 and 21 July 2009 respectively.

A full description of the domestic law and practice at the relevant time may be found in Mesut Yurtsever and Others v. Turkey (nos. 14946/08, 21030/08, 24309/08, 24505/08, 26964/08, 26966/08, 27088/08, 27090//08, 27092/08, 38752/08, 38778/08 and 38807/08, §§ 78-80, 20 January 2015).

A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014). In particular, Article 4, paragraph (d) of the decree adopted by the Council of Ministers on 10 February 2014, which was subsequently published in the Official Gazette on 16 March 2014, states that the Compensation Commission, which was established by Law no. 6384, is entitled to examine applications relating to complaints lodged by detainees/prisoners about the refusal of the prison authorities to hand over periodicals based on different grounds. Under the same decree, the Compensation Commission has competence ratione temporis to deal with applications lodged with the Court up until 23 March 2013.