Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in DATE , and lived until his arrest in the town of PERSON , PERSON . He died in a prison tuberculosis hospital in GPE - on - Don .

On DATE the applicant was arrested on suspicion of having been involved in drug trafficking . He was remanded in custody .

DATE ORG of GPE authorised the applicant ’s detention , having noted the gravity of the charges against him and the possibility of his absconding and reoffending in the light of the fact that he had not been living at his registered address in PERSON at the time of his arrest . The court also noted that the fact that the applicant was suffering from tuberculosis did not negate the indicated risks .

The applicant ’s case was joined to the case of PERSON , his alleged accomplice . The CARDINAL defendants were to stand trial together before ORG .

On several occasions ORG extended the detention of the CARDINAL defendants , each time using similar wording , citing the gravity of the charges and the lack of any change in the circumstances and risks which had initially warranted their detention .

On DATE the medical authorities informed ORG that the applicant ’s state of health did not allow him to attend court hearings . On DATE the proceedings were stayed until his recovery .

On DATE , after receiving notice of the applicant ’s expected discharge from a prison hospital , ORG resumed the proceedings and scheduled a hearing for DATE .

DATE the head of the prison hospital informed ORG that the applicant ’s medical condition warranted further treatment in the hospital . The date of his discharge was unclear .

On DATE ORG again stayed the proceedings until the applicant ’s recovery and collectively extended his and PERSON detention for DATE , until DATE , employing the same reasoning as on the previous occasions . The detention order contained no detailed assessment of the accuseds’ individual circumstances .

NORP In DATE the prison hospital informed ORG that the applicant was receiving treatment and that it was impossible to predict the date of his discharge .

It appears that at some point the proceedings against PERSON were disjoined from those of the applicant .

ORG continued regularly extending the applicant ’s detention , citing the gravity of the charges and the risks of his absconding or reoffending .

In DATE and DATE ORG and the prison hospital exchanged correspondence concerning the applicant ’s state of health . The medical authorities stated that the patient was unable to attend owing to a risk of his spreading tuberculosis .

Towards DATE ORG asked the medical authorities to allow a hearing on the hospital LOC . The head of the prison hospital agreed and on DATE the proceedings resumed .

On DATE ORG found the applicant guilty of CARDINAL counts of the production and attempted sale of opium and sentenced him to CARDINAL years’ imprisonment .

On DATE the ORG quashed the judgment on appeal and remitted the case for fresh consideration , ordering that the applicant remain in custody .

In the course of the new round of proceedings ORG , on a number of occasions , authorised the applicant ’s continued detention . Each time the gravity of the charges and the risks of his re - offending and absconding served as the reason for the extension . The extension orders were formulated in the same standard manner . The applicant did not attend the hearings as his tuberculosis remained contagious . The orders were upheld on appeal .

On DATE ORG decided to stay the proceedings until the applicant ’s recovery . The applicant appealed .

NORP The proceedings were resumed DATE at the request of the applicant . The hearings were to be held on the hospital LOC .

On DATE ORG found the applicant guilty of drug trafficking and sentenced him to CARDINAL years’ imprisonment .

On DATE ORG upheld the most recent detention order , stating as follows :

“ The [ case - file ] materials ... show that the preventive measure was imposed [ on the applicant ] in conformity with the [ the applicant ’s ] personality .

[ ORG ] came to the correct conclusion that the circumstances that had [ indicated the necessity for ] the applicant ’s detention had not changed . Its conclusion that no other preventive measure might be applied to [ the applicant ] could not be disputed . ”

On DATE the Rostov ORG upheld the applicant ’s conviction .

In DATE , prior to his arrest , the applicant was diagnosed with advanced tuberculosis , pleurisy , and inflammation of the tissue layers lining the lungs and inner chest wall . He was treated in the Rostov ORG .

Following his arrest on DATE , the applicant was admitted to remand prison no . IZ-CARDINAL/CARDINAL in GPE . During the admission procedure the applicant informed the prison authorities that he was suffering from tuberculosis . A chest X - ray examination on DATE revealed that both his lungs were damaged by an active , advanced form of tuberculosis and that the right lung was partially collapsed on account of the presence of air in the thorax . The condition was further complicated by pleurisy . A course of drugs , dietary nutrition and the drainage of fluid from the pleural cavity were prescribed .

The parties disagreed on whether the applicant had received the prescribed treatment . While a report by the detention authorities in DATE stated that he had been given the treatment in full , the applicant ’s medical file did not contain any information confirming that he had complied with the course of drug treatment .

On DATE the applicant ’s health deteriorated and he was taken by ambulance to the prison tuberculosis hospital in GPE - on - Don . The applicant was regularly examined by doctors , underwent various medical tests and received treatment for tuberculosis . His right lung was drained after the insertion of a chest tube .

On DATE a drug susceptibility test was performed . It revealed that the applicant ’s tuberculosis was resistant to CARDINAL drugs , including those which had been given to him in the hospital . DATE his drug treatment was amended and the illness was brought under control .

On DATE pulmonary surgery was prescribed by the head of the hospital ’s surgical unit .

According to a medical report of DATE submitted by the Government , DATE the applicant ’s health worsened and it was no longer possible to perform the prescribed operation . The applicant ’s medical file does not contain any records regarding the deterioration of his health during that DATE period .

Regular chest X - ray examinations carried out in the subsequent period revealed the development of complications and showed no improvement in the course of the disease . The applicant was recommended a non - surgical course of treatment .

The applicant ’s medical file shows that at DATE he several times refused to follow a round of drug therapy . On DATE he consulted a psychologist and a psychiatrist on this matter .

On DATE a tuberculosis specialist established that the applicant ’s infection was spreading and that his overall condition had worsened to the extent that surgical intervention was no longer possible . The applicant started undergoing new , multi - drug therapy under the close supervision of doctors . On DATE and CARDINAL DATE the doctors confirmed that the applicant could not undergo the prescribed pulmonary surgery due to the continuing deterioration in his health .

On DATE a medical panel concluded that the applicant ’s condition warranted his early release from detention .

On DATE ORG ordered the applicant ’s release on health grounds .

DATE he died in detention of tuberculosis .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary

The applicants , daughter and mother , were born in DATE and DATE , respectively , and live in LOC .

On DATE ORG ( hereinafter “ the Commission ” ) adopted a land consolidation programme concerning , inter alia , land owned by the first applicant ’s legal predecessor and a separate piece of land owned by the second applicant .

On DATE the first applicant ’s legal predecessor and the second applicant appealed against the ORG ’s decision before ORG ( “ the ORG ” ) , arguing that they had not been duly compensated for the plots which they had owned and which had been transferred to the land consolidation programme .

On DATE the ORG amended the land consolidation programme by assigning the second applicant a different plot of land . The second applicant appealed against the decision .

On DATE the first applicant ’s predecessor lodged an appeal for the failure of the ORG to adopt a decision within the prescribed time - limit .

On DATE the ORG granted the first applicant ’s legal predecessor ’s appeal , remitting the case to the Commission for further consideration . The ORG found that the operative part of the decision lacked clarity and that the ORG had misapplied the law .

On DATE the Convention became operational in respect of GPE .

On DATE the ORG granted the second applicant ’s appeal against the decision of DATE , finding that the operative part of the decision was inconsistent with its reasoning . The case was remitted to the ORG for further consideration .

On DATE , DATE , DATE and DATE the first applicant ’s predecessor and the second applicant lodged informal motions before the Commission , asking that the proceedings be expedited .

On DATE the Commission having failed to undertake further examination of their cases – the first applicant ’s legal predecessor and the second applicant each lodged a separate appeal with ORG ( “ the Ministry ” ) alleging that the Commission had failed to adopt a decision within the prescribed time - limit . Moreover , on DATE they both appealed to the Ministry to expedite the resolution of their respective land consolidation decisions .

On DATE the Ministry not having responded to their appeal – the first applicant ’s legal predecessor and the second applicant brought an action before ORG for the failure of the Ministry to adopt a decision within the prescribed time - limit .

On DATE ORG allowed those actions and ordered ORG to decide on the matter at issue within DATE from the date on which its judgment became final .

Meanwhile , on DATE ORG ( previously the ORG , hereinafter “ the Administrative Unit ” ) , which had acquired competence to decide on matters of land consolidation , adopted new decisions on the land at issue .

On DATE the first applicant ’s legal predecessor and the second applicant appealed before the ORG against those decisions .

On DATE their appeals were allowed by ORG , which again assigned them different plots of land to compensate them for the loss of their original plots .

On DATE the first applicant ’s legal predecessor and the second applicant brought actions for judicial review ( administrative action ) before ORG against the ORG ’s decisions of CARDINAL August CARDINAL on the grounds that the Ministry had failed to properly consider the criteria applicable to the land consolidation programme and had thereby violated their right to equality before the law .

On DATE the first applicant ’s legal predecessor died and the first applicant inherited a part of his land including plots subject to land consolidation proceedings . She then intervened in the proceedings as the heir .

On DATE and CARDINAL DATE , respectively , ORG allowed the ORG actions for judicial review and annulled the ORG ’s decisions of CARDINAL DATE on the grounds that the applicants had not been acquainted with the expert opinion on which ORG had based its decisions and that no reasons had been provided for the dismissal of the objections to the distribution of land . ORG remitted the cases to the Ministry for further consideration .

On CARDINAL DATE the ORG adopted new decisions concerning the distribution of land in respect of the first and second applicant .

On DATE the applicants each brought another action for judicial review ( administrative action ) against those new decisions before ORG .

On DATE and DATE the applicants each lodged an informal motion before ORG to expedite the resolution of their action .

On DATE and DATE , respectively , ORG allowed the first and second applicants’ actions for judicial review , annulling the ORG ’s decisions of CARDINAL DATE , and again remitted the cases to ORG for further consideration .

On DATE and CARDINAL DATE the first and second applicants lodged informal motions before ORG , asking that the proceedings be expedited . Moreover , CARDINAL other similar motions were lodged before the Ministry by the first applicant on DATE , CARDINAL DATE and CARDINAL DATE .

On DATE the ORG issued a decision annulling ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) and remitted the cases to it .

On DATE and DATE ORG scheduled oral hearings for DATE and DATE , respectively . Prior to the hearings , the first applicant informed ORG that she was unable to participate in the hearing due to medical treatment and that the second applicant could not participate as she was seriously ill and bedridden .

On DATE ORG held an oral hearing regarding the applicants’ cases . Land survey and agriculture experts were appointed to consider the first applicant ’s requests regarding the land and an agriculture expert was appointed in connection with the second applicant ’s requests .

The land consolidation proceedings were still pending on DATE last communication with the ORG .


No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in DATE and lives in GPE .

On DATE ORG awarded MONEY as compensation for unlawful conviction of the applicant . The decision of the court came into force on DATE .

The applicant obtained the respective writ of execution on DATE . In DATE the applicant sought in domestic courts issuance of a duplicate of the writ of execution which according to him had been stolen in DATE from his office . On DATE a national court refused to issue the duplicate because the term for submission of this document for the execution had expired under LAW .

On DATE the applicant addressed ORG of GPE with a request to execute the judgment of DATE . ORG replied that the execution is not possible without submission of the writ of execution .


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

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE . His present place of residence is unknown .

On DATE the applicant was found guilty of fraud and sentenced to CARDINAL years’ restriction of liberty .

In DATE criminal proceedings were instituted against him on suspicion of robbery , theft and illegal drug dealing committed in DATE and DATE . The applicant was detained as a suspect within this set of proceedings from DATE and from DATE to CARDINAL DATE . During the remaining period of the pre - trial investigation he was bound by an undertaking not to leave his town of residence .

On DATE the ORG of Kyiv ( “ the ORG ” ) found the applicant guilty as charged and sentenced him to CARDINAL years’ imprisonment , which also absorbed the outstanding part of the sentence of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE ORG upheld that judgment .

The case file contains no further information about the aforementioned proceedings .

On DATE Mr B. lodged a complaint with the police to the effect that the applicant had robbed him of a mobile phone on DATE ( the applicant had then been at liberty subject to an undertaking not to leave his town of residence DATE see paragraph CARDINAL above ) .

On DATE , at TIME , the applicant was summoned to ORG no . CARDINAL ( GPE Шевченківського PERSON у м. PERSON ) by a telephone call . According to him , he could not refuse given that he was bound by the undertaking not to leave the town , which also implied his obligation to obey any police summonses . As the applicant further submitted , he was arrested in the police station upon his arrival there without any explanation . According to the report of the police officer involved , the latter had “ invited [ the applicant ] to the police station on suspicion of having committed the criminal offence alleged by [ Mr B. ] ” .

It appears that the applicant was held in the police station TIME ( see , in particular , paragraph CARDINAL below ) . The case file contains his written explanations to the police dated DATE regarding the events of CARDINAL DATE . He admitted that he had met PERSON , but denied his involvement in the robbery .

On DATE a criminal case was opened against the applicant on suspicion of having robbed Mr B.

On DATE , at TIME , the police issued a report , according to which the applicant had been apprehended at TIME on DATE in the premises of the police station on suspicion of having committed a crime . The applicant signed the report with a comment that he had nothing to say . He also signed extracts from the LAW and the legislation on pre - trial detention as regards his procedural rights , as well as a waiver of his right to legal assistance .

On DATE the applicant was questioned as a suspect and denied that he was guilty .

On DATE the investigator applied to ORG for an order remanding the applicant in custody pending trial , stating as reasons the applicant ’s previous criminal record and the severity of the alleged offence , which was punishable with imprisonment for DATE . The investigator considered that if the applicant remained at liberty , there was a risk that he would abscond or hinder the investigation .

On DATE , having upheld the investigator ’s reasoning , ORG remanded the applicant in custody for DATE .

On DATE the court extended the applicant ’s pre - trial detention to DATE , having taken into account “ the volume of investigative measures still to be undertaken ” .

From DATE to CARDINAL DATE the applicant was held in GPE of Forensic Psychiatric Expert Examinations with the aim of clarifying whether he could be held criminally liable .

On DATE ORG opened the trial . It dismissed the applicant ’s request for the custodial preventive measure to be replaced by an undertaking not to abscond .

On DATE the court remitted the case for additional pre - trial investigation .

On DATE ORG held a preliminary hearing . It upheld the custodial preventive measure in respect of the applicant .

On DATE the court convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment .

The ORG has not been made aware of any further developments in these domestic proceedings .

The applicant alleged that , following his arrest on DATE , he had been “ severely beaten ” by the police . The applicant did not provide any factual details of his alleged ill - treatment or of any injuries sustained .

According to the applicant , on TIME on DATE his mother had received a phone call from a person who had been detained in the same police station and released that morning . The applicant had asked him to pass a message to her stating that he was detained there and that he had been questioned and ill - treated by the police .

As further submitted by the applicant , his mother had contacted the police station in order to verify that information , but was told that her son was not there . She had therefore complained to the police and the prosecution authorities about his disappearance .

According to the Government , on DATE the police had notified the applicant ’s mother about his arrest and invited her to come to collect his belongings , which she did . She also signed a receipt to that effect .

On DATE the applicant was taken to ORG ( the GPE ) ( ORG слідчий ізолятор ) . His medical examination , which was carried out on DATE , did not reveal any injuries , and the applicant did not mention to the doctors that he had been ill - treated . His only complaint was about epigastric pain ( see also paragraph CARDINAL below ) .

On DATE the applicant ’s mother complained to the police and to the prosecution authorities about the alleged ill - treatment of her son in police custody . She also stated that he suffered from a number of contagious diseases and could not therefore be held in detention .

On DATE the applicant underwent surgery for acute appendicitis and peritonitis .

On DATE and CARDINAL DATE the applicant ’s mother complained to the prosecution authorities that the need for surgery on her son had been the direct consequence of his alleged ill - treatment on DATE .

On DATE ORG of ORG ГУМВС України в місті PERSON ) completed its internal inquiry into the matter . As noted in the inquiry report , on DATE the applicant ’s mother had signed a receipt confirming that she had collected her son ’s belongings from the police station . She had therefore been aware of his arrest . Furthermore , there was no evidence that any coercion had been used on the applicant . Accordingly , his allegation of ill - treatment was found to be without basis .

On DATE the GPE doctors , acting on the instruction of the prosecution authorities , examined the applicant to establish if there were any traces of the alleged ill - treatment . None was discovered .

On DATE ORG refused to institute criminal proceedings in respect of the applicant ’s allegation of ill - treatment considering it unfounded since there was no evidence of any criminal behaviour by the police in relation to him .

On DATE , CARDINAL and DATE and DATE the prosecutor sent letters to the applicant ’s mother informing her of the aforementioned decision . According to the applicant , none of those letters reached his mother .

The applicant was detained in the GPE from DATE to DATE .

Without specifying in which cells he had been held and for how long , the applicant described his cells as severely overcrowded , poorly ventilated and damp .

According to the information provided by the ORG , the applicant was held in the following cells :

- cell no . CARDINAL , measuring CARDINAL sq . m ( shared by CARDINAL detainees ) ;

- cell no . CARDINAL , measuring QUANTITY m ( shared by CARDINAL detainees ) ;

- cell no . CARDINAL , measuring QUANTITY . m ( shared by CARDINAL detainees ) ;

- cell no . CARDINAL , measuring QUANTITY m ( shared by CARDINAL detainees ) ; and

- cell no . CARDINAL , measuring QUANTITY m ( shared by CARDINAL detainees ) .

According to the ORG , the conditions in those cells were adequate and they were equipped with the requisite furnishings and facilities . The windows and the ventilation system allowed fresh air to circulate and a satisfactory level of natural and artificial lighting was provided .

On CARDINAL DATE the GPE governor informed the prosecutor of ORG in charge of the supervision of lawfulness in prisons that during the period from DATE to CARDINAL DATE the applicant had changed cells CARDINAL times . Specifically , on DATE he was placed in cell no . DATE , on DATE in cell no . CARDINAL , on DATE in cell no . CARDINAL again ( apparently after a stay in the medical unit ) , on DATE in cell no . CARDINAL , and on DATE in cell no . CARDINAL . The GPE governor explained those transfers by the fact that the applicant had often been held in the GPE medical unit , given his poor state of health .

On CARDINAL occasions the applicant was placed in a disciplinary cell for keeping prohibited items ( in CARDINAL cases a mobile telephone and in CARDINAL case cash ) : on DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE . On each occasion he was held in a disciplinary cell for DATE , with the exception of DATE , when he was placed there for DATE . In every case a medical specialist of the GPE confirmed that the measure in question was compatible with the applicant ’s state of health .

On DATE the applicant ’s mother complained to ORG that on DATE the ORG administration had administered emetics to the applicant in order to establish whether any drugs were present in his body . She submitted that it had been an unjustified , humiliating and dangerous measure .

On DATE ORG of ORG ( ORG департаменту України з питань виконання покарань в м. ORG області ) informed the prosecution authorities , in response to the complaints by the applicant ’s mother , that the applicant was under the close scrutiny of medical specialists on account of a number of illnesses and that his numerous medical examinations had not revealed any injuries . Furthermore , the applicant had never complained to any authorities or doctors of having been ill - treated during his detention . He had also given a written refusal to make any comment about his mother ’s complaints .

On DATE the applicant ’s lawyer complained to the GPE governor that her client had been unjustifiably incarcerated , and that on CARDINAL and DATE he had been beaten by persons wearing masks .

On DATE the head of the GPE medical unit replied that the applicant ’s allegations were unfounded and that he had not made any complaints himself .

In DATE the applicant was diagnosed with tuberculosis for the first time .

In DATE he tested HIV - positive . In DATE his condition was assessed as clinical stage CARDINAL HIV and AIDS . He was registered for monitoring in the AIDS Centre at the place of his residence .

The applicant also suffers from chronic viral hepatitis B and C.

On DATE , upon his arrival at the GPE , the applicant underwent a medical examination and PERSON , which revealed post - tuberculosis residual lung changes . His height and weight were recorded as QUANTITY and QUANTITY respectively . The applicant complained of epigastric pain . He also informed the doctors of his past medical history of viral hepatitis B and C , and his HIV - positive status ( see also paragraph CARDINAL above ) .

On DATE the applicant was examined by CARDINAL tuberculosis specialists , who confirmed the diagnosis of post - tuberculosis residual changes in the right lung and recommended further medical supervision .

On DATE the applicant was taken from the GPE to the emergency hospital , where he underwent surgery in respect of acute appendicitis and peritonitis . The case file does not contain any information as to whether anything had led up to that emergency . Nor did the applicant submit any factual details in that regard , apart from his broadly - couched allegation , in reply to the Government ’s observations , that the emergency had been a result of his ill - treatment ( see paragraph CARDINAL below ) .

According to the information provided by the ORG , from CARDINAL July to CARDINAL DATE the applicant was given in - patient post - surgery medical treatment in the GPE medical unit . The applicant contested this information as untruthful , referring to the fact that from CARDINAL August to CARDINAL DATE he had been undergoing forensic psychiatric expert examination in ORG ( see also paragraph CARDINAL above ) . The case file contains an extract from the applicant ’s medical file held in the GPE , according to which he received in - patient treatment in the GPE medical unit from DATE to CARDINAL DATE .

On DATE the applicant was X - rayed . Following the discovery of a focal shadow on the right lung , it was recommended that he consult a specialist .

On DATE a tuberculosis specialist examined the applicant and found that he had focal tuberculosis of the upper lobe of the right lung at an unclear stage of development . The doctor prescribed a trial chemotherapy regimen consisting of isoniazid , pyrazinamide , rifampicin and ethambutol .

On DATE the applicant again underwent chest X - rays , which showed focal tuberculosis of the upper lobe of the right lung in the consolidation stage . The radiologist recommended that the applicant consult a tuberculosis specialist .

On DATE the applicant was invited to undergo another X - ray , but he refused .

On DATE and DATE and on DATE , at the applicant ’s request , a dentist examined him . The diagnosis was chronic multiple complicated caries related to poor dental hygiene , as well as tongue candidiasis . The applicant was provided with some medication , ointment and vitamins , and had the decayed tooth roots removed .

On DATE the applicant was also examined by a specialist in infectious diseases and underwent a CDCARDINAL test . Its result was PERSON cells / cu . PERSON .

On DATE the applicant underwent X - rays , the findings of which were the same as on CARDINAL DATE .

On DATE the applicant was X - rayed again , with no pathological indications having been revealed .

On DATE the applicant was due to undergo X - rays , but was unable to because he was not feeling well .

On DATE a radiologist recommended ( it is not known in what circumstances ) that the applicant consult a tuberculosis specialist .

On DATE the applicant underwent further X - rays . He was diagnosed with pneumonia triggered by tuberculosis , post - tuberculosis residual changes in the form of focal consolidations in the lower lobe of the left lung , and bronchitis . The radiologist recommended that the applicant consult a tuberculosis specialist .

Although the applicant ’s medical file shows that he underwent in - patient treatment for pneumonia in the GPE medical unit from CARDINAL to DATE , on CARDINAL DATE ORG informed the Agent of the Government , who was collecting information for the purpose of preparing observations for submissions to ORG , that this information “ had turned out to be unconfirmed ” .

On DATE the applicant again underwent a CDCARDINAL test . Its result was CARDINAL cells / cu . PERSON .

DATE . On DATE another such test was undertaken , which showed the CDCARDINAL count as CARDINAL cells / cu . PERSON .

On DATE the applicant underwent another X - ray , which revealed post - tuberculosis focal consolidations in the lower lobe of the right lung . It was recommended that the applicant consult a tuberculosis specialist .

Following a complaint from the applicant ’s mother regarding the failure to administer antiretroviral therapy to her son , on DATE the PERSON administration informed her that the applicant was undergoing treatment for tuberculosis and that a consultation by an infectious diseases specialist was needed to decide about antiretroviral therapy .

On DATE the applicant was examined by a tuberculosis specialist , who found that he had no active - phase tuberculosis and that his general state of health was good .

On DATE the applicant ’s X - rays showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage .

On DATE the applicant was examined by a tuberculosis specialist , who prescribed him seasonal relapse prevention therapy with CARDINAL antibacterial drugs ( ethambutol and rifampicin ) for DATE , starting on DATE and also a special diet . According to the applicant , this prescription was not implemented in practice .

On DATE the applicant complained of moderate general weakness and heaviness in the right hypochondrium and was examined again by the tuberculosis specialist . As a result , his DATE relapse prevention therapy was slightly modified .

On DATE the tuberculosis specialist examined the applicant again , with no dynamics noted . The doctor recommended continuation of the treatment and a repeated CDCARDINAL test . It is not clear whether that test was carried out .

DATE . On DATE the applicant underwent X - rays which showed that he had infiltrative tuberculosis of the upper lobe of the left lung in the disintegration stage .

On DATE the applicant was examined by CARDINAL tuberculosis specialists , who diagnosed a recurrence of tuberculosis . They recommended a drug susceptibility test and prescribed isoniazid , rifampicin and ethambutol .

On DATE the applicant had his chest X - rayed . There was a limited fibrosis in the right lung and a suspected ring - shaped shadow on the left lung . The applicant was diagnosed with infiltrative tuberculosis of the upper lobes of both lungs .

On DATE he was examined by a tuberculosis specialist , who prescribed continuation of the treatment of DATE .

On DATE the applicant was transferred to the PERSON prison no . CARDINAL ( PERSON виправна колонія № CARDINAL ) in the GPE region – where there was a hospital specialising in tuberculosis – for the purposes of serving his sentence .

According to the applicant , during his detention in the ORG his weight dropped from QUANTITY to QUANTITY . He had previously indicated his height QUANTITY . The entry in his medical file in the LOC prison upon his arrival there stated his height as QUANTITY and his weight as still QUANTITY ( see also paragraph CARDINAL above ) .

On an unspecified date following the applicant ’s transfer to the LOC prison ( before DATE see paragraph CARDINAL below ) his drug susceptibility was tested . It revealed that the applicant was infected with strains of tuberculosis resistant to CARDINAL of the first - line drugs with which he had been treated before .

On DATE he was examined by an infectious diseases specialist , who diagnosed him with chronic persistent hepatitis in the remission stage .

On DATE the applicant was examined by the Head of the Phthisiology and ORG of ORG , who prescribed an individual scheme of chemotherapy for him , given his resistance to certain drugs .

On DATE the applicant underwent a CDCARDINAL test . Its result was CARDINAL cells / cu . PERSON .

On DATE an infectious diseases doctor from ORG examined the applicant and diagnosed tuberculosis , oropharyngeal candidiasis and chronic viral hepatitis .

Also on DATE the applicant was examined by a tuberculosis specialist from ORG , who reported positive developments as a result of the treatment and recommended its continuation .

According to the extract from the applicant ’s medical file issued by the PERSON prison administration , the applicant was released from detention on CARDINAL DATE on the ground of poor health . It was recommended that he register for monitoring in the local AIDS centre and that he continue his treatment for tuberculosis in the place of his residence .

None of the parties has submitted to the ORG any details as to the circumstances of and the reasons for the applicant ’s release . The applicant noted summarily that he “ was transferred for treatment in [ his ] place of residence as his treatment [ in detention ] had not been successful . ”


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently serving a prison sentence in GPE . He was represented before the ORG by Mr PERSON and Mr C. PERSON , lawyers practising in GPE .

NORP The facts of the case , as submitted by the applicant , may be summarised as follows .

On DATE , within the space of TIME , the mother and the father of CARDINAL different DATE girls separately contacted ORG on account of suspicions that their children had been sexually abused by the applicant , who was their psychomotor development teacher . They reported that their children had told them that the applicant had introduced his hand through their underwear and had touched their pubic region and their genitals while they were doing physical exercises .

On DATE the applicant was arrested . In his statement to the police , in which he was assisted by counsel , the applicant denied the accusations . On DATE , parents of CARDINAL other girls in the same school class reported similar facts to the police .

On DATE the applicant was brought before an investigating judge . In his statement to the judge the applicant confirmed his statement to the police . He was released on remand subject to certain conditions . A non - molestation order was issued against him for the protection of the minors . The applicant appointed counsel and a legal representative for his defence and representation before the courts .

On DATE and DATE the parents of CARDINAL other DATE girls contacted the police to report incidents involving their children similar to those reported by the above - mentioned parents . Their daughters had told them that the applicant had touched their genitals .

On DATE the investigating judge requested that the forensic psycho - social team in the NORP courts perform an examination of the first CARDINAL alleged under - age victims and of the applicant . On DATE the examination of the minors was extended to include the last QUANTITY girls whose parents had made a criminal complaint . The report on the minors was prepared by a forensic social worker and a forensic social psychologist . Their interviews with the minors were all video - recorded . The report on the applicant was prepared by a different forensic psychologist .

On DATE and DATE the psychological reports were submitted in writing to the investigating judge . They were added to the case file . The applicant was provided with a copy of the report on the minors .

On CARDINAL DATE the applicant made a request to the investigating judge that the forensic psycho - social team who had interviewed the minors submit all notes and documents which had been put at their disposal by the school personnel and cited in the report . The investigating judge requested those notes and documents from the members of the forensic psycho - social team with a view to providing the applicant with them .

On DATE the forensic psycho - social team informed the investigating judge that they had not kept notes of the interviews . All information deemed important had been included in the final report and the notes destroyed .

On DATE the investigating judge brought the investigative stage of the proceedings to a close and made the case file available to the parties with a view to holding a public hearing . The applicant did not appeal against that decision . The public prosecutor accused the applicant of CARDINAL counts of child abuse . The private prosecutor accused him of CARDINAL counts of child abuse . In his statement of defence the applicant denied the charges .

On DATE a public hearing took place before the NORP criminal judge no . CARDINAL . The applicant was defended by counsel of his own choice . The applicant , the parents and the alleged GPE CARDINAL school tutors were questioned . The video - recording of the forensic experts’ interview with the minors was played in its entirety and the members of the forensic psycho - social team were questioned in relation to the report they had produced . They confirmed the contents of their report . The alleged under - age victims were not questioned at the hearing since none of the parties to the proceedings had so requested .

On DATE the NORP criminal judge no . CARDINAL sentenced the applicant to DATE imprisonment as a principal on CARDINAL counts of sexual abuse of children . He was acquitted of CARDINAL count of sexually abusing a child . The judge found that on DATE the applicant , driven by an impulse to satisfy his lustful desires , had asked for volunteers to lead their classmates in the exercises ; that he had selected multiple volunteers , including the CARDINAL female victims , taking them away from the group in turn ; that he had brought the under - age victims close to him and that whilst practising the exercises he had touched their genitals , concealing his actions behind the ORG smocks .

NORP In reaching this conclusion the judge relied mainly on the statements given by the under - age victims to the CARDINAL members of the forensic psycho - social team . Those interviews had been video - recorded and played in their entirety at the hearing . The judge emphasised that CARDINAL of the CARDINAL minors interviewed had repeated in a spontaneous fashion what they had previously said to their parents and that the other CARDINAL had given their account of the facts after the experts had asked them whether anything particular had happened in the psychomotor development class on the specific date of the events . The answers provided by these CARDINAL minors were consistent with regard to both the circumstantial evidence and the way in which the events had taken place . The seventh child who had been interviewed had not given an account of the events .

The judge further relied on the expert psycho - social report on the minors , the findings of which the CARDINAL authors had confirmed at the hearing . The experts were available for cross - examination at the hearing . According to them , the reliability of the alleged ORG accounts ranged from “ indeterminate ” to “ most probably reliable ” on a scale consisting of CARDINAL different values of credibility : reliable , most probably reliable , indeterminate , probably not reliable and not reliable . The report contained a detailed assessment of each alleged victim ’s statement , of its consistency with other statements , and of the reasons supporting their conclusions . The judge also relied on hearsay evidence given by some of the LOC parents and the tutors of the CARDINAL classes to which the minors concerned belonged .

The judge rejected the applicant ’s submission that he should be acquitted for lack of direct evidence against him . The applicant had argued that he had not examined the minors either in the investigative stage of the proceedings or at the hearing and that therefore the LOC pre - trial statements should not be admitted as valid evidence against him because he had not been present during their examination .

The judge conceded that the minors had not been cross - examined by the applicant or his counsel either at the investigative stage of the proceedings or at the hearing . This fact , however , did not prevent the ORG statements being admitted as evidence against the applicant . The judge pointed out that neither of the parties to the proceedings had requested that the children attend the hearing as witnesses . She further referred to domestic case - law and to international instruments regulating children ’s rights , stating that in sex - related criminal cases involving minors it was possible to dispense with their cross - examination in open court if it was deemed inappropriate having regard to the ORG young age or its probably adverse psychological impact , and that their statements could be submitted at the hearing through other means .

In this connection , the judge emphasised that in the present case an expert report had been prepared by a forensic psycho - social team whose members had confirmed its contents in open court ; that for the preparation of that report the experts had conducted a series of interviews with the minors ; that the report had been passed on to the applicant during the investigative stage of the proceedings ; and that those interviews had all been video - recorded and played at the trial . The applicant had been able to prepare his defence and challenge the truthfulness of the ORG statements , submit evidence in his favour , and cast doubt on the accuracy or scientific value of the expert report . The fact that the full content of the interviews had not been transposed into the final expert report was irrelevant in so far as the video - recording of the interviews had been viewed in its entirety in open court .

The applicant appealed against the first - instance judgment before FAC . He invoked his rights to be presumed innocent and to a fair hearing .

On CARDINAL DATE the La Rioja Audiencia Provincial upheld the applicant ’s conviction . The appellate court emphasised that the applicant had requested the production of the evidence requested by the public and private prosecutors , who had asked that the interviews conducted with the minors be viewed and that the experts who had conducted those interviews be questioned in open court . The prosecutors had not requested that the minors be questioned and neither had the applicant . The court considered that in admitting those statements in evidence , the first - instance judge had struck a proper balance between the protection of the minors from secondary victimisation and the applicant ’s right to defence . The applicant ’s right had been respected in so far as the video - recording of the interviews had been played in its entirety at the hearing and the members of the psycho - social team had been available for cross - examination by the applicant .

The appellate court emphasised that the statements given by the CARDINAL under - age victims were consistent and that they were corroborated by hearsay evidence , by the expert report and by the statements made at the hearing by the experts who had prepared the report . As regards the expert report , the court pointed out that the applicant had been provided with a copy immediately after it was produced and that he had not raised any objection to or submitted an appeal against the investigating judge ’s decision to request its production and inclusion in the case file . The members of the psycho - social team had confirmed its contents at the hearing . The court praised the report for its completeness and accuracy and emphasised that its findings were based on a renowned scientific method called ORG ) , of which the core component was a criteria - based content analysis ( CBCA ) of the credibility of accounts . It was also pointed out that the applicant had failed to submit any evidence that raised doubts as to the reliability of the report .

On DATE the applicant lodged an amparo appeal with ORG , invoking his constitutional rights to a fair hearing and to be presumed innocent . He argued that he could not be blamed for not having requested the cross - examination of the minors at the hearing in so far as it was incumbent on the prosecution to prove him guilty and therefore to request the production at the hearing of all the evidence against him . This failure on the part of the prosecutors had prevented him from cross - examining the alleged victims , thereby breaching his right to a fair hearing . The applicant further argued that the only direct evidence on the basis of which the courts had found him guilty consisted of the statements given by the minors to the experts at the investigative stage of the proceedings but contended that those statements should have been excluded from the evidential material as they had been obtained in breach of his right to defence . The interviews with the minors had been conducted without his being present . The exclusion of that evidence would result in his acquittal of all the alleged offences for lack of sufficient evidence to override his right to be presumed innocent . The evidence against him was in any case insufficient to prove him guilty .

On DATE ORG dismissed the applicant ’s amparo appeal . It stated that the first issue raised by the applicant concerned the potential restrictions which could be placed on the right to defence of a person charged with sexual offences vis - à - vis his alleged victims , taking into account the undesirable emotional and psychological impact that cross - examination in open court might have on the latter .

ORG reiterated that as a general rule defendants should be afforded the opportunity to cross - examine their victims in open court . However , this rule allowed for certain exceptions . Making copious citations from the ORG ’s case - law , ORG referred to the special nature of criminal proceedings concerning sexual offences , which often represented an ordeal for the victims , and to the fact that this aspect was even more clearly apparent in cases involving minors . The courts were allowed to take measures for the purpose of protecting under - age victims , including the possibility of dispensing with their cross - examination . This measure should nonetheless be reconciled with the adequate and effective exercise of the rights of the defence . Courts were thus required to implement safeguards compensating defendants for the disadvantage of having been prevented from cross - examining the direct witnesses to the offences in open court .

The Constitutional Court went on to state that in sex - related offences the only direct evidence was frequently the victim ’s own statement , the other evidence normally being hearsay evidence or expert evidence assessing the credibility of the victim ’s account . In this connection , the legal debate usually turned on the legal safeguards surrounding the examination of the minor and the manner in which his or her statements could be used as evidence at the hearing . ORG stated that in cases such as the instant CARDINAL the constitutional standard of review coincided with the standard established by ORG in the case of GPE v. GPE ( no . CARDINAL , § DATE , CARDINAL DATE ) , according to which :

“ the suspected person shall be informed of the hearing of the child , he or she shall be given an opportunity to observe that hearing , either as it is being conducted or later from an audiovisual recording , and to have questions put to the child , either directly or indirectly , in the course of the first hearing or on a later occasion . ”

Turning to the instant case , ORG stated that the under - age girls had not been questioned by the police or the public prosecutor or the investigating judge . They had been examined by a social worker and a psychologist from the forensic psycho - social team from whom the investigating judge had commissioned a report . The relevant legislation provided for that possibility , which had been accepted as a constitutionally valid option by ORG in a previous judgment . The court emphasised that ‒ given the young age of the minors , all of whom were below DATE at the material time ‒ their examination by experts was advisable not only in order to prevent additional unnecessary damage but also to reinforce the reliability of their statements .

ORG stated that the investigating judge had made the psycho - social report available to the parties , including the applicant ’s counsel , shortly after its production by the experts . However , the applicant had limited himself to requesting some additional documents ( see paragraph CARDINAL above ) DATE . He had not requested that a fresh examination of the minors be conducted in his presence . The legislation by no means prevented such a course of action but the applicant had not availed himself of that possibility . In his subsequent statement of defence , the applicant had not requested the cross - examination of the alleged victims in open court , which reinforced the inference that his rights had been duly respected at the pre - trial stage of the proceedings . The applicant ’s failure to request the GPE cross - examination meant that the judicial authorities dealing with his case did not have to decide whether or not the applicant should have been given the opportunity to have his alleged victims cross - examined . In fact , the domestic authorities had not obstructed or in any way prevented such an examination since they had not been confronted with the issue to begin with .

In the light of the foregoing , ORG considered that the applicant ’s right to adversarial proceedings had not been restricted to an unacceptable extent . Its finding might have been different had the judicial authorities prevented the applicant from examining the under - age victims despite his having so requested ( the ORG cited ORG v. GPE , no . CARDINAL , § DATE , ORG CARDINALV ; PERSON GPE , no . CARDINAL , § DATE , DATE ; and Accardi and Others v. GPE ( dec . ) , no . CARDINAL , ORG CARDINALII ) or if the applicant had not been able to challenge effectively the examination conducted by the experts owing to a lack of sufficient information or some legal impediment .

As regards the assessment of the evidence conducted by the judicial authorities , the Constitutional Court emphasised from the outset that its role was not that of a court of third instance and that in cases such as the instant one it would intervene only if it could not be concluded ‒ or could be concluded only arbitrarily ‒ from the evidential material in the case file , which should have been obtained with due respect for the defendant ’s fundamental rights , that the defendant was guilty .

In this connection , ORG stated that the only direct evidence on which the trial courts had based the applicant ’s conviction comprised the incriminating statements given by the minors at the investigative stage of the proceedings , the video - recording of which had been viewed in its entirety at the hearing . The admission of those statements as evidence had been lawful and , from a constitutional standpoint , they could be considered sufficient evidence to override the applicant ’s right to be presumed innocent . The hearsay evidence provided by parents and experts had served exclusively as corroborating evidence . This complaint was dismissed .

ORG judgment was served on DATE .

DATE LAW provides :

“ CARDINAL . Every person has the right to the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests , and in no case may he or she go undefended .

Likewise , every person has the right of access to the ordinary judge predetermined by law ; to the defence and assistance of a lawyer ; to be informed of the charges brought against him or her ; to a public trial without undue delays and with full guarantees ; to the use of evidence appropriate to his or her defence ; to refrain from self - incriminating statements ; not to declare himself or herself guilty ; and to be presumed innocent .

The law shall determine the cases in which , for reasons of family relationship or professional secrecy , it shall not be compulsory to make statements regarding alleged criminal offences . ”

The relevant provisions of LAW are as follows :

Adult witnesses shall take an oath or promise to state all they know in reply to the questions put to them , the judge being obliged to inform them in clear and understandable language of their duty to tell the truth and of the possibility of their being held liable for false statements in a criminal case .

Minors may give a statement to experts , always in the presence of the public prosecutor . The person exercising parental responsibilities , protection or guardianship over the minor may be present unless he or she is an accused party , or if the judge , as an exceptional measure and through a reasoned decision , decides otherwise . The judge may instruct that the statement be video - recorded . ”

Statements from under - age witnesses shall be delivered in a manner that avoids their being visually confronted with the accused . The use of appropriate technological mechanisms shall be allowed for that purpose . ”

“ The only evidence that shall be produced [ at the hearing ] is that proposed by the parties ; the only witnesses who shall be examined are those included in the lists submitted [ by the parties ] . ”

“ In the event that any evidence can not be produced during the hearing , on account of circumstances outside the parties’ control , a record of the relevant investigation shall be read out if this is so requested by any of the parties . ”

ORG , which entered into force in respect of GPE on DATE , provides in LAW , concerning investigation , prosecution and procedural law :

“ CARDINAL . Each ORG shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child .

Each ORG shall adopt a protective approach towards victims , ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance , where appropriate ...

Each ORG shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial , in conformity with LAW . ”

“ CARDINAL . Each ORG shall take the necessary legislative or other measures to protect the rights and interests of victims , including their special needs as witnesses , at all stages of investigations and criminal proceedings , in particular by ...

g. ensuring that contact between victims and perpetrators within court and law enforcement agency LOC is avoided , unless the competent authorities establish otherwise in the best interests of the child or when the investigations or proceedings require such contact . ”

“ CARDINAL . Each ORG shall take the necessary legislative or other measures to ensure that :

a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities ;

b. interviews with the child take place , where necessary , in LOC designed or adapted for this purpose ;

c. interviews with the child are carried out by professionals trained for this purpose ;

d. the same persons , if possible and where appropriate , conduct all interviews with the child ;

e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings ...

Each ORG shall take the necessary legislative or other measures to ensure that all interviews with the victim or , where appropriate , those with a child witness , may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings , according to the rules provided by its internal law . ”

“ CARDINAL . Each ORG shall take the necessary legislative or other measures to ensure , according to the rules provided by its internal law , that :

a. the judge may order the hearing to take place without the presence of the public ;

b. the victim may be heard in the courtroom without being present , notably through the use of appropriate communication technologies . ”

LAW of DATE of ORG on the standing of victims in criminal proceedings ( CARDINAL ) provided :

“ CARDINAL . Each Member ORG shall ensure that victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances . ”

“ Each Member ORG shall safeguard the possibility for victims to be heard during proceedings and to supply evidence .

Each Member ORG shall take appropriate measures to ensure that its authorities question victims only insofar as necessary for the purpose of criminal proceedings . ”

“ CARDINAL . Each Member ORG shall ensure that , where there is a need to protect victims - particularly those most vulnerable - from the effects of giving evidence in open court , victims may , by decision taken by the court , be entitled to testify in a manner which will enable this objective to be achieved , by any appropriate means compatible with its basic legal principles . ”

The Directive of DATE of ORG and of the Council ( CARDINAL/CARDINAL/EU ) establishing minimum standards on the rights , support and protection of victims of crime , and replacing LAW CARDINAL/CARDINAL/JHA , provides :

“ ( CARDINAL ) This Directive respects fundamental rights and observes the principles recognised by LAW . In particular , it seeks to promote the right to dignity , life , physical and mental integrity , liberty and security , respect for private and family life , the right to property , the principle of non - discrimination , the principle of equality between women and men , the rights of the child , the elderly and persons with disabilities , and the right to a fair trial . ”

“ Without prejudice to the rights of the defence and in accordance with rules of judicial discretion , Member GPE shall ensure that during criminal investigations :

( b ) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation ;

“ CARDINAL . Member GPE shall ensure that victims receive a timely and individual assessment , in accordance with national procedures , to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings , as provided for under LAW and DATE , due to their particular vulnerability to secondary and repeat victimisation , to intimidation and to retaliation ...

For the purposes of this Directive , child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation , to intimidation and to retaliation . To determine whether and to what extent they would benefit from special measures as provided for under Articles DATE and DATE , child victims shall be subject to an individual assessment as provided for in paragraph CARDINAL of this Article . ”

“ CARDINAL . Without prejudice to the rights of the defence and in accordance with rules of judicial discretion , Member GPE shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in LAW , may benefit from the measures provided for in DATE and QUANTITY of this Article . A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible , or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings .

The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with LAW

( a ) interviews with the victim being carried out in LOC designed or adapted for that purpose ;

( b ) interviews with the victim being carried out by or through professionals trained for that purpose ;

( c ) all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice ;

( d ) all interviews with victims of sexual violence , gender - based violence or violence in close relationships , unless conducted by a prosecutor or a judge , being conducted by a person of the same sex as the victim , if the victim so wishes , provided that the course of the criminal proceedings will not be prejudiced .

The following measures shall be available for victims with specific protection needs identified in accordance with LAW during court proceedings :

( a ) measures to avoid visual contact between victims and offenders including during the giving of evidence , by appropriate means including the use of communication technology ;

( b ) measures to ensure that the victim may be heard in the courtroom without being present , in particular through the use of appropriate communication technology ;

( c ) measures to avoid unnecessary questioning concerning the victim ’s private life not related to the criminal offence ; and

( d ) measures allowing a hearing to take place without the presence of the public . ”

“ CARDINAL . In addition to the measures provided for in DATE , Member GPE shall ensure that where the victim is a child :

( a ) in criminal investigations , all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings ; ”

In a judgment of DATE ( Case C-CARDINAL/CARDINAL Pupino [ DATE ] ECRICARDINAL ) ORG of ORG held :

“ CARDINAL . ORG must thus be interpreted in such a way that fundamental rights , including in particular the right to a fair trial as set out in LAW and interpreted by ORG , are respected ( ... )

In the light of all the above considerations , the answer to the question must be that ORG , CARDINAL CARDINAL(CARDINAL ) of ORG must be interpreted as meaning that the national court must be able to authorise young children , who , as in this case , claim to have been victims of maltreatment , to give their testimony in accordance with arrangements allowing those children to be guaranteed an appropriate level of protection , for example outside the trial and before it takes place . The national court is required to take into consideration all the rules of national law and to interpret them , so far as possible , in the light of the wording and purpose of LAW . ”


FRÄNKLIN-BEENTJES AND CEFLU-LUZ DA FLORESTA v. THE NETHERLANDS

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The first applicant , PERSON , is a GPE national who was born in DATE and lives in GPE . The second applicant , ORG , is a religious association ( kerkgenootschap ) with legal personality under GPE law and its statutory seat in GPE . They were represented before the ORG by Mr T. van Kooten , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr R.A.A. PERSON of ORG .

NORP The facts of the case , as submitted by the parties and apparent from documents available to the public , may be summarised as follows .

The first applicant is an office - holder of the second applicant . The second applicant is a religious association .

NORP The applicant association claims affiliation to FAC PERSON ( ORG of the Universal Flowing Light PERSON , “ ORG ” ) , an organisation based in GPE . The aim of the applicant association as set forth in its statutes is to “ research , study and practise the teachings of FAC and to incite with its works and rituals its godly spark with a view to its integration with the divine ” . Its teachings are stated to be based on revelations by PERSON to the religion ’s founder , PERSON ( DATE , referred to by his followers as PERSON ( “ Master ” ) Ireneu ) . ORG was founded after the death of PERSON by PERSON ( DATE , alias ORG ( “ Godfather ” ) ORG ) .

An essential part of the applicant association ’s rites is the drinking of a particular hallucinogenic decoction , or brew , during the services . This decoction is stated to be produced in accordance with prescribed religious rituals ; its ingredients are taken from plants and vines unique to the ORG region . It is described as the “ GPE ” of the applicant association and is referred to by believers as “ PERSON ” ( from the NORP dai me , “ give me ” ) . In other circles it is more commonly referred to as ayahuasca ( from the NORP aya , spirit , and waska , liana or vine ) .

The plants that are used for the production of ayahuasca , and hence the decoction itself , contain , inter alia , N , ORG , also described chemically as ORG ( hereafter “ ORG ” ) .

ORG is a substance that can cause hallucinations if taken internally . When it is consumed in the form of ayahuasca , other possible effects include gastrointestinal reactions , such as nausea and vomiting . There is a possibility of more serious symptoms of acute toxicity , such as hypertension and increased body temperature , a rapid pulse rate and hyperventilation , sensory impairment in the limbs and difficulty walking .

On DATE police officers searched the first applicant ’s house . During this search the police found and confiscated , among other things , CARDINAL jerrycans each containing QUANTITY of an unknown liquid . ORG analysis performed by ORG ( ORG ) showed that the confiscated liquid contained ORG , which is CARDINAL of a number of banned substances featuring on List CARDINAL annexed to LAW ( PERSON , see below ) . The liquid was identified as ayahuasca .

On DATE ORG ( rechtbank ) found the first applicant guilty of , inter alia , the offence set out in section CARDINAL ( CARDINAL ) of LAW , namely the possession of a substance featuring on LAW annexed to that LAW .

On DATE the first applicant lodged an appeal with ORG ( gerechtshof ) , sitting in GPE .

On DATE ORG discontinued the criminal proceedings against the first applicant as it found that the length of the appeal proceedings had exceeded a reasonable time within the meaning of LAW .

On DATE the first applicant lodged a notice of complaint ( klaagschrift ) with ORG , sitting in GPE , requesting the return of the CARDINAL jerrycans that had initially been confiscated . She stated that she was a member of the “ PERSON church ” , within which ayahuasca is the most important sacrament . She further argued that the continued confiscation of the ayahuasca violated her rights under LAW as this interference with her right was not necessary in a NORP society : in her submission , scientific expert reports showed that there were virtually no health and safety risks related to the drinking of ayahuasca .

On DATE ORG held a hearing on the first applicant ’s case in the course of which she restated her arguments , claiming that , in her case , the protection of freedom of religion should outweigh the interests protected by LAW . According to the official record of the hearing the first applicant stated , in reply to a question from the court , that she could also practise her religion without the use of ayahuasca . The public prosecutor submitted that since the ayahuasca brew contained ORG , a substance featuring on LAW annexed to LAW , the jerrycans could not be returned to the first applicant .

On DATE ORG dismissed the first applicant ’s complaint . It considered that her religion , as practised by the applicant association , was protected by LAW . However , since expert reports indicated that the use of ayahuasca did constitute a threat to public health , the court found that the interference with the first applicant ’s rights had not been unreasonable as it was necessary in a NORP society . ORG further noted that it had also taken into consideration the first applicant ’s statement that the use of ayahuasca was not indispensable for the practice of her religion .

On DATE the first applicant lodged an appeal on points of law with ORG ( PERSON ) . She submitted that ORG had drawn the wrong conclusions from the expert report since , after listing the effects of drinking ayahuasca , the report continued by stating that ayahuasca was used in the PERSON church ’s services on such a small scale , and its consumption took place in such a controlled environment , that there existed virtually no risk to public health . According to the first applicant ORG had failed to explain why it had not included that part of the report in its reasoning . The first applicant further submitted that the comment she had made at the hearing before ORG had been taken out of context , since she had only meant to say that she would still adhere to her religious denomination even if she could not use ayahuasca . Accordingly , the confiscation of the ayahuasca did indeed interfere with her freedom to practise her religion following the church ’s own rules and rituals .

In his advisory opinion , the Procurator General ( ProcureurGeneraal ) at ORG expressed the view that the appeal on points of law should be dismissed . He considered that the judiciary was not empowered to set aside a general prohibition of the possession of the substance solely because of the particular circumstances in which it was used , i.e. the specific situation being judged not to constitute a threat to public health .

On DATE ORG dismissed the first applicant ’s appeal on points of law . It considered that ORG had established that ayahuasca contained ORG which was included amongst the banned substances appearing on LAW annexed to LAW . ORG further noted that it appeared from the parliamentary history ( wetsgeschiedenis ) of LAW that the substances included on LAW were banned , among other reasons , in order to comply with international treaty obligations concerning psychotropic substances that could cause damage to health . The fact that section CARDINAL of LAW banned the possession of substances included on LAW therefore constituted a measure for the protection of public health . ORG concluded that ORG had not made any errors of law in finding that the ban on the possession of ayahuasca was prescribed by law and necessary in a NORP society for the protection of public health . It further noted that this conclusion was not altered by the first applicant ’s arguments that ayahuasca , in the manner in which it was used during church services , caused virtually no danger to ( public ) health , nor by the suggestion that ORG had drawn the wrong conclusions from the scientific report . In relation to the first applicant ’s comments made at the hearing before ORG , ORG held that it had not been unreasonable for ORG to consider them in relation to its finding that the interference with the first applicant ’s freedom of religion was proportionate to the legitimate aim pursued .

On DATE the applicants brought proceedings seeking a declaratory judgment which was to hold that , firstly , the applicant association was a religious denomination under section CARDINAL:CARDINAL of GPE Code ( Burgerlijk Wetboek ) , secondly , that the members of the applicant association were excluded from section CARDINAL of LAW for the possession and the use during services of the “ GPE ” ( ayahuasca ) , and , thirdly , that the ORG was prohibited from prosecuting the members of the applicant association for the possession and use during services of the “ PERSON ” for as long as the ORG had not brought its policy into line with the rights protected by LAW .

On DATE ORG of The Hague dismissed the first request ( ORG ) , “ LJN ” ORG ) , holding that , although it was of the opinion that the applicant association was indeed a religious denomination within the meaning of section CARDINAL:CARDINAL of LAW , the applicant association had not substantiated its interest in such a declaration . ORG also dismissed the second and third claims , referring to ORG judgment of DATE ( see paragraph CARDINAL above ) .

The relevant sections of LAW read as follows :

“ It is prohibited to

NORP import to or export from the territory of the GPE ;

B. cultivate , prepare , modify , process , sell , deliver , supply or transport ;

C. possess ;

D. manufacture

the substances featuring on List I annexed to this LAW ... ”

“ CARDINAL . NORP The Minister [ of Health , Well - being and Sports ( NORP , ORG ) ] can ... grant an exemption from a prohibition as referred to in section CARDINAL ... ”

“ CARDINAL . An exemption can be granted only if the person requesting it has satisfied the Minister :

a. that it serves the interest of public or animal health ;

b. it is needed for carrying out scientific or analytical - chemical research or for educational purposes , in so far as the interest of public health is not harmed thereby , or

c. it is needed for carrying out an act as referred to in LAW ... pursuant to an agreement with :

NORP another person to whom an exemption has been granted under section CARDINAL ;

NORP a pharmacist , or a physician who keeps a pharmacy ;

a veterinary surgeon ;

an institution or person indicated under section CARDINAL(CARDINAL ) or ( CARDINAL ) [ i.e. specifically authorised medical , dental or veterinary institutions or practitioners , and their patients ] ;

a person holding a license or exemption granted in another country for the import of the substances in issue into that country , in so far as the interest of public health is not harmed thereby . ... ”

PERSON appears on List I annexed to LAW under the appellations N , N - dimethyltryptamine and GPE .

On DATE ( LJN : ABCARDINAL ) ORG held , in a case similar to the present one , that expert reports indicated that the PERSON church should be considered a legitimate religious association and that its teachings constituted a religious conviction ( geloofsovertuiging ) in themselves . It held that the prohibition contained in FAC should not be applied in view of the fact that the ritual use of ayahuasca in church services entailed virtually no risks to public health . ORG therefore considered that , since the drinking of the ayahuasca tea was such an essential part of the NORP religious practice , freedom of religion as guaranteed by LAW should attract greater weight than the prohibition contained in LAW . Subsequently , the accused was discharged from further prosecution of the criminal offence under LAW .

On DATE ( LJN : BHCARDINAL ) – i.e. after the decision of ORG in the present case – the Haarlem Regional Court ruled on a case involving a person who had been apprehended at FAC with a number of bags containing ayahuasca in his luggage , intended for use during church services as described above . ORG found that there were virtually no risks to public health involved in the consumption of the brew in the setting of the church services . ORG further considered that the import of ayahuasca was regulated by specific rules and regulations issued by the church . It concluded that in these circumstances the protection of freedom of religion guaranteed by LAW outweighed the prohibitions contained in LAW .

On DATE ( LJN : PERSON ) ORG upheld ORG judgment of DATE , against which ORG ( Openbaar Ministerie ) had appealed . ORG considered that there was a certain difference between the case before it and the case decided by ORG on DATE i.e. the first applicant ’s case ( see paragraph CARDINAL above ) . In this case , the accused had established that the drinking of ayahuasca was indeed an essential part of the practice of his religion . ORG held that this conclusion warranted an examination of the merits of the case and its specific circumstances , whereas ORG in DATE had only carried out an abstract examination of the merits of the case . Restating the judgment of ORG , it held that in this case the application of LAW was not “ necessary ” within the meaning of LAW .

On DATE the Government informed the ORG that an appeal on points of law had been lodged by ORG against ORG judgment of DATE . As far as the ORG is aware , the proceedings are still pending .

The Convention on Psychotropic Substances ( United Nations Treaty Series , “ ORG ” , volume CARDINAL , pages CARDINAL and following ) was adopted in GPE on DATE . It entered into force on DATE . The GPE acceded to it on DATE . Attached to that Convention are CARDINAL Schedules listing various categories of psychotropic substances .

As relevant to the case before the ORG , ORG provides as follows :


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the non - enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law .


Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE .


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Inhuman treatment)

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of having planned and carried out a murder and of having injured CARDINAL persons . DATE he was charged with murder and attempted murder committed within an organised criminal group . ORG of GPE ( “ the ORG ” ) authorised his pre - trial detention for DATE .

On DATE ORG examined an application by the investigating authorities to extend the applicant ’s detention . They relied on the seriousness of the charges , the applicant ’s de facto residence not being at his registered address , and the potential risk of intimidation of witnesses or victims , and the risk of obstruction of justice and reoffending . The defence argued that the applicant had no criminal record , that he lived at a known address , had a family with CARDINAL minor children , and that he suffered from severe diabetes . Having been fully satisfied with the prosecution ’s arguments , ORG extended the detention until DATE .

On DATE GPE ( “ the ORG ” ) upheld the decision on appeal .

On DATE ORG extended the applicant ’s detention until DATE citing the seriousness of the charges and the fact that the investigation had not yet been completed . The court found that if released the applicant could influence his co - accused or the victims . With reference to the medical report of DATE ( see paragraph CARDINAL below ) the court noted that the state of health of the accused was compatible with further detention on remand . The decision contained the following phrase :

“ The investigation has proved [ the applicant ’s ] guilt in that crime ”

The defence did not appeal against the extension order .

On DATE ORG ruled that the applicant should remain in detention until DATE . The court endorsed the reasoning of the decision of CARDINAL DATE and noted that there were still certain investigative actions to be taken . In particular , the authorities had to obtain an expert report , to investigate the applicant ’s alleged involvement in CARDINAL more criminal incidents and to finish examining evidence .

On DATE ORG upheld the order on appeal .

On DATE ORG examined another application for extension of the applicant ’s detention . The same judge as at the hearing of CARDINAL DATE presided . Relying on the wording of the court order of DATE ( see paragraph CARDINAL above ) the defence challenged the judge , alleging that he was biased .

ORG dismissed that application , having found that the hearing on DATE and the ensuing decision had not concerned the determination of the applicant ’s guilt and that there was no evidence of the judge ’s partiality .

The court extended the applicant ’s detention until DATE , repeating its earlier reasoning . It also concluded that his state of health was “ close to satisfactory ” and that he could be transferred to a prison hospital should his health worsen .

On DATE the applicant appealed against both the extension order and the court ’s decision regarding the impartiality of the judge . On DATE he amended his appeal .

DATE the applicant ’s lawyer was informed that the appeal hearing had been listed for DATE . Citing his busy schedule , the lawyer asked the court to adjourn the hearing . The court allowed the request and set the hearing for DATE .

On DATE ORG discovered that a copy of the decision of CARDINAL DATE dismissing the application for a change in the composition of ORG had not been served on the defence , which therefore had had no opportunity to challenge it . The case was remitted to ORG .

DATE ORG provided the defence with a copy of the impugned decision .

On DATE and DATE ORG postponed hearings owing to the applicant ’s inability to participate for health reasons .

At the hearing on DATE the applicant informed ORG of his wish to change lawyer . The hearing was adjourned again .

On DATE ORG upheld the extension order and rejected the applicant ’s challenge to ORG judge as unfounded .

On DATE ORG extended the applicant ’s detention until DATE , and dismissed a prior application for early release on medical grounds . The court decided that he was receiving adequate medical carecall for his release .

On DATE the applicant appealed against the extension order with reference to his frail health and the lack of adequate medical care . His appeal reached the court on DATE .

ORG upheld the extension order on DATE .

On DATE ORG held another detention hearing . The applicant and his lawyer were absent . According to a medical certificate , the applicant was unable to appear owing to ongoing inpatient treatment . A written statement from the investigator said that the applicant ’s counsel had been informed of the hearing by telephone on DATE . Noting the counsel ’s absence , ORG appointed a new lawyer for the defence . The appointed lawyer objected to the extension of the applicant ’s detention , referring to the latter ’s family situation , permanent residence at a known address and his poor health .

ORG extended the applicant ’s detention until DATE . In addition to the usual reference to the seriousness of the charges , it noted the complexity of the case and the need for the investigating authorities to look into recently obtained evidence suggesting that CARDINAL more people had been involved in the criminal offences . The court made a detailed list of the investigative steps taken since the most recent detention order , and declared reasonable the length of the investigation . The court also found that the applicant could not be released on medical grounds given the absence of a medical report assessing the compatibility of the applicant ’s health with prolonged detention .

On DATE the defence appealed against the extension . On DATE and CARDINAL DATE a supplement to the appeal was submitted by the applicant ’s lawyer , who , referring to the call records on her mobile telephone , argued that the investigator had not informed her of the hearing on DATE .

On DATE ORG held the appeal hearing in the absence of the applicant – who was still receiving inpatient treatment DATE and his counsel , who asked the court to examine the issue in his absence . The applicant was represented by court - appointed counsel , who supported the arguments put forward in the statement of appeal statement .

ORG upheld the extension order . As it was satisfied with the investigator ’s statements about the telephone conversation with the applicant ’s lawyer , the court dismissed the argument that the lawyer had not been notified of the hearing on DATE .

On DATE GPE extended the applicant ’s detention for DATE . The court reiterated that he had been charged with multiple counts of very serious crimes and that the case was very complex . It also cited the applicant ’s liability to abscond . As regards his state of health , the court found that in the absence of an expert report release was not warranted .

The applicant appealed . On CARDINAL and CARDINAL DATE his lawyer submitted supplements to the statement of appeal .

The appellate hearing was initially scheduled for DATE , but then adjourned until DATE owing to the applicant ’s ongoing medical treatment . On the latter date ORG upheld the detention order .

A number of additional orders followed , extending the detention until DATE . The extensions were authorised in view of the seriousness of the charges and the necessity for the applicant to study the case file . The applicant was found fit to stay in detention because the requisite treatment was available in prison . Other measures of restraint could not , in the court ’s opinion , secure his appearance before the investigating authorities or his law abidance .

On DATE ORG refused to extend the applicant ’s detention . It found that he was living in GPE at a known address , and that he was employed , and had CARDINAL minor children . There was no evidence confirming the risk of witness intimidation or reoffending . The court also took into account the applicant ’s poor health and his unequivocal intent to cooperate with the prosecution . It appears that on DATE the applicant was released . ORG upheld that decision on DATE .

There is no information about further developments in the criminal proceedings .

Since DATE the applicant had been suffering from insulin - dependent type - CARDINAL diabetes . In DATE he was certified as having a second - degree disability .

After the arrest in DATE he was taken to the medical unit of remand prison no . IZ-CARDINAL/CARDINAL in GPE . During DATE of detention his treatment was overseen by a prison endocrinologist .

On DATE , at the request of the applicant ’s wife , a panel of experts examined his medical condition . They confirmed the diagnosis of type - CARDINAL - diabetes and frequent instances of ketoacidosis complicated by concomitant diseases . The experts observed that his condition was aggravated by chronic pancreatitis and called for his constant supervision by an endocrinologist and a gastroenterologist of a specialised medical institution licensed to provide those types of medical assistance . The applicant needed a specific diet and insulin injections . A specialist was needed to monitor and correct the applicant ’s insulin level . A failure to comply with those recommendations could threaten the applicant ’s life . The experts further concluded that the remand prison medical unit was unable to provide adequate medical assistance .

At the investigator ’s request , on DATE a medical panel issued a report concluding that the applicant was fit to stay in the remand prison if he received specific medical care comprising : monitoring of blood sugar levels throughout DATE ; administration of the requisite medicines and adherence to a specific diet ; insulin injections ; and “ active supervision by an endocrinologist ” in order to ensure the correct insulin therapy . The experts noted that “ inappropriate ” insulin intake could lead to severe complications .

In DATE the prison endocrinologist was discharged from the medical unit . A resident general practitioner started supervising the applicant ’s treatment . According to the applicant , no checks of his insulin level were carried out in the medical unit . Medical documents show that he developed face and feet oedemas . On that account he was sent to ORG in GPE on DATE .

License no . FS DATE of DATE indicates that ORG was not authorised to provide endocrinological medical services . It did not employ an endocrinologist .

On DATE the applicant was seen by a civilian endocrinologist . The applicant ’s wife paid for the visit . The doctor noted that the patient was suffering from severe diabetes complicated by several concomitant conditions and that he needed “ dynamic supervision by an endocrinologist ” .

DATE the applicant was transferred from ORG back to the medical unit in the remand prison .

On DATE and CARDINAL DATE a medical board carried out an additional expert examination and repeated its earlier conclusion made in the report on DATE .

According to the applicant , the medical unit staff changed his insulin regimen because the prescribed medication was not available . No consolations with an endocrinologist preceded that decision . As a result his blood sugar level increased significantly .

In DATE and DATE he underwent short courses of inpatient treatment in ORG .

DATE . On DATE he was taken by ambulance to ORG in GPE and was admitted to the emergency department in view of his serious medical condition . He was diagnosed with type - CARDINAL severe diabetes ; diabetic ketoacidosis ; non - proliferative diabetic retinopathy ; cataracts in both eyes ; diabetic angiopathy of both feet ; encephalopathy of mixed origin ; diabetic sensory polyneuropathy ; and diabetic nephropathy . A special medical board stated that those illnesses were not on the list of medical conditions precluding detention ; accordingly , the applicant was not eligible for release on medical grounds . The board also called for “ dynamic supervision ” of the applicant ’s treatment by an endocrinologist .

DATE and DATE the applicant was moved several times between the medical unit in the remand prison and ORG . According to the Government , he was seen once , on DATE , by a civilian endocrinologist .

On DATE at the request of the applicant ’s lawyer CARDINAL medical experts prepared a report on the quality of his treatment in detention . It addressed the following questions :

“ CARDINAL . What does the necessity of dynamic medical supervision by an endocrinologist’ suggest ?

Does [ the applicant ] have an illness ... calling for continuous inpatient treatment in a specialised medical institution ?

How did the absence of ‘ dynamic medical supervision by an NORP between DATE and CARDINAL DATE affect [ the applicant ’s ] health ? ... ”

The doctors came to the following conclusions :

“ CARDINAL . Dynamic medical supervision by an endocrinologist involves regular medical tests and contact with a doctor ... In a case of stable diabetes with no changes in the insulin level , a medical examination by an endocrinologist must be performed once DATE ... [ However , ] if important changes are being introduced into a patient ’s insulin regimen , he or she must have a DATE consultation by an endocrinologist ... until the target glucose level is achieved and there is no risk of hypoglycaemia ...

Irregular examinations of [ the applicant ] did not constitute ‘ dynamic supervision’ , as their frequency was clearly insufficient for the assessment of the patient ’s wellbeing in its dynamic ... or for the adjustment of his treatment .

NORP ... The seriousness of [ the applicant ’s ] diabetes ... shows that inpatient treatment in a specialised medical facility was required .

NORP ... The lack of ‘ dynamic medical supervision by an LANGUAGE between DATE and CARDINAL DATE resulted in the deterioration of [ the applicant ’s ] health . Developed vascular disease ( vascular angiopathy of the lower extremities ) and encephalopathy , an irreversible brain damage ... were signs of his worsening health .

In the absence of dynamic medical supervision , improper adjustment of the medical treatment led to an increased risk of ketoacidosic / hypoglycemic comas ... ”