Preliminary objections joined to merits and dismissed (Article 35-3 - Ratione materiae;Ratione personae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE . She is the widow of Mr NORP Elberts ( “ the applicant ’s husband ” ) , a NORP national who was born in DATE and who died on DATE .

On DATE the applicant ’s husband was involved in a car accident in the ORG parish . An ambulance transported him to ORG but he died on the way there as a result of his injuries . He was placed in the mortuary at FAC . The applicant ’s mother - in - law , who worked at ORG and thereby learnt about her son ’s death immediately , stayed next to his body at ORG until it was transported to FAC ( NORP tiesu medicīnas expertīžu centrs ) ( “ the FAC ” ) in GPE .

At TIME on DATE the body was delivered to ORG in order to establish the cause of death . TIME and TIME an autopsy was carried out and numerous injuries were found to the deceased ’s head and chest , including several broken ribs and vertebrae . There were bruises on his right shoulder , thigh and knee . A forensic medical expert , GPE , classified the injuries as serious and life - threatening and established a causal link between them and his death .

According to the ORG , after the autopsy GPE had verified that there was no stamp in PERSON passport denoting his objection to the use of his body tissue and he had removed tissue from Mr Elberts’ body with a total area of QUANTITY – the outer layer of the meninges ( dura mater ) . According to the applicant , GPE could not have checked whether or not there was a stamp in Mr Elberts’ passport because at that time it had been at their home in GPE . The applicant submitted that the area of removed tissue was CARDINAL cm x QUANTITY and that it was not only dura mater that had been removed .

On DATE the prosecutor ’s office issued a permit to bury the body . According to the applicant , on CARDINAL or DATE her sister had arrived at FAC with a view to obtaining the certificate showing the cause of death , in relation to which she had signed ORG registration log . On DATE her sister submitted that document , together with Mr Elberts’ passport , to the relevant authority in ORG to obtain the death certificate .

According to the Government , on DATE the body of Mr Elberts had been handed over to a relative . According to the applicant , his body had been handed over to another person who was merely helping with its transportation prior to the funeral .

On DATE the funeral took place in GPE . The applicant first saw her deceased husband when his remains were transported back from FAC for the funeral . She saw that his legs had been tied together . He was buried that way . The applicant herself was pregnant at the time with their second child .

NORP The applicant was not aware that tissue had been removed from her husband ’s body until DATE , when the Security Police informed her that a criminal inquiry had been opened into the illegal removal of organs and tissue , and that tissue had been removed from her husband ’s body .

On DATE ORG ) opened a criminal inquiry into the illegal removal of organs and tissue for supply to a pharmaceutical company based in GPE ( “ the company ” ) DATE . The following sequence of events was established .

NORP In DATE the predecessor institution of ORG concluded an agreement with the company to cooperate for the purpose of scientific research . Under the agreement various types of tissue were to be removed from deceased persons ‒ selected by ORG in accordance with international standards ‒ and sent to the company for processing . The company transformed the tissue received into bio - implants and sent them back to GPE for transplantation purposes . ORG agreed to the content of the agreement , reviewing its compliance with domestic law on several occasions . ORG issued CARDINAL opinions on the compatibility of the agreement with domestic law and , in particular , with the PERSON on the Protection of the Bodies of Deceased Persons and ORG ( “ the LAW ” ) .

Any qualified member of staff ( “ expert ” ) of ORG was allowed to carry out the removal of tissue on his or her own initiative . The Head of ORG of FAC was responsible for their training and the supervision of their work . He was also responsible for sending the tissue to GPE . The experts received remuneration for their work . Initially , the tissue removal was performed at forensic divisions located in GPE , GPE , GPE , NORP and GPE . After DATE , however , tissue removal was carried out only at FAC in GPE and the forensic division in GPE .

Under the agreement , experts could remove tissue from deceased persons who had been transported to FAC for forensic examination . Each expert was to verify whether the potential donor had objected to the removal of organs or tissue during his or her lifetime by checking his or her passport to make sure that there was no stamp to that effect . If relatives objected to the removal , their wishes were respected , but the experts themselves did not attempt to contact relatives or to establish their wishes . Tissue was to be removed within TIME of the biological death of a person .

Experts were obliged to comply with domestic law but , according to their own testimonies , not all of them had read the PERSON . However , the content of it was clear to them as the Head of ORG of ORG had explained that removal was allowed only if there was no stamp in the passport denoting a refusal for organs or tissue to be removed and if the relatives did not object to the removal .

In the course of the inquiry the investigators questioned specialists in criminal law and the removal of organs and tissue . It was concluded that , generally speaking , CARDINAL legal systems exist for regulating the removal of organs and tissue – “ informed consent ” and “ presumed consent ” . On the one hand , the Head of ORG , the Head of ORG of FAC and the experts at ORG were of the opinion that at the relevant time ( that is to say , after the PERSON ’s entry into force on DATE ) there had existed a system of “ presumed consent ” in GPE . These persons were of the view that the system of presumed consent meant that “ everything which is not forbidden is allowed ” . The investigators , on the other hand , were of the opinion that section QUANTITY of the PERSON gave a clear indication that the NORP legal system relied more on the concept of “ informed consent ” and , accordingly , removal was permissible only when it was ( expressly ) allowed , that is to say when consent had been given either by the donor during his or her lifetime or by the relatives .

More particularly , as regards the removal of tissue from the applicant ’s husband ’s body , on CARDINAL DATE the expert GPE was questioned . Subsequently , on DATE the applicant was recognised as an injured party ( cietušais ) and she was questioned on DATE .

On DATE it was decided to discontinue the criminal inquiry into the activities of the Head of ORG , the Head of ORG of FAC and the Head of ORG in respect of the removal of tissue . The above considerations were noted down in the decision ( lēmums par kriminālprocesa izbeigšanu ) and differences concerning the possible interpretations of domestic law were resolved in favour of the accused . Moreover , the DATE amendments to the PERSON were to be interpreted to mean that there was a system of “ presumed consent ” in GPE . It was concluded that sections DATE and CARDINAL of the PERSON had not been violated and that no elements of a crime as set out in section CARDINAL of LAW had been established .

On DATE and DATE prosecutors dismissed complaints lodged by the applicant and held that the decision to discontinue the inquiry was lawful and justified .

On DATE a superior prosecutor of ORG examined the case file and concluded that the inquiry should not have been discontinued . He established that the experts at FAC had breached provisions of the PERSON and that the tissue removal had been unlawful . The decision to discontinue the inquiry was quashed and the case file was sent back to the Security Police .

On DATE the criminal inquiry , in so far as it related to the removal of tissue from the body of the applicant ’s deceased husband , was discontinued owing to the expiry of the statutory limitation period of DATE . However , the legal ground given for this discontinuation was the absence of any elements of a crime . On CARDINAL DATE the applicant was informed of that decision . On DATE and DATE , in response to complaints lodged by the applicant , the prosecutors stated that the decision had been lawful and justified .

On DATE another superior prosecutor of ORG examined the case file and concluded that the inquiry should not have been discontinued . She established that the experts at FAC had breached provisions of the PERSON and that the tissue removal had been unlawful . The decision to discontinue the inquiry was once again quashed and the case file was again sent back to the Security Police .

On DATE a new decision to discontinue the criminal inquiry was adopted , based on the legal ground of the expiry of the statutory limitation period . On DATE , in response to a complaint from the applicant , the prosecutor once again quashed the decision .

A fresh investigation was carried out . During the course of that investigation it was established that in DATE tissue had been removed from CARDINAL people ; in DATE , from CARDINAL people ; in DATE , from CARDINAL people ; and in DATE , from CARDINAL people . In exchange for the supply of tissue to the company , ORG had organised the purchase of different medical equipment , instruments , technology and computers for medical institutions in GPE and the company had paid for these purchases . Within the framework of the agreement , the total monetary value of the equipment for which the company had paid exceeded the value of the removed tissue that was sent to the company . In the decision of DATE ( see immediately below ) it was noted that the tissue was not removed for transplantation purposes in accordance with section CARDINAL of the PERSON but was actually removed for transformation into other products to be used for patients not only in GPE , but also in other countries .

On DATE the criminal inquiry was discontinued owing to the expiry of the statutory limitation period . In the decision it was noted that whenever an expert from ORG , for example , had interviewed the relatives prior to the removal of organs or tissue , he had never expressly informed them about such potential removal or indeed obtained their consent . According to the testimonies of all the relatives , they would not have consented to the removal of organs or tissue had they been informed and their wishes established . According to the experts’ testimonies , they had merely checked passports for stamps and had not sought relatives’ consent as they had not been in contact with them . It was also noted that with effect from DATE , information was to be sought from ORG , which the experts had failed to do . It was concluded that the experts , including GPE , had contravened section CARDINAL of the PERSON and had breached the relatives’ rights . However , owing to the fiveyear statutory limitation period ( which started running on DATE ) the criminal inquiry was discontinued , and on CARDINAL May and DATE the prosecutors upheld that decision in response to complaints lodged by the applicant . The applicant lodged a further complaint .

In the meantime , the experts , including GPE , lodged an appeal contesting the reasons for the discontinuation of the criminal inquiry ( kriminālprocesa izbeigšanas pamatojums ) . They contested their status as the persons against whom the criminal inquiry concerning unlawful tissue removal had been instigated because they had not at any stage been informed about this inquiry and argued that , accordingly , they had been unable to exercise their defence rights . On DATE in a final decision FAC upheld their appeal ( case no . DATE ) , quashed the DATE decision and sent the case file back to ORG . The court found as follows :

“ Notwithstanding the fact that a certain proportion of the transplants were not returned to be used for patients in GPE , there is no evidence in the case file that they were used for processing into other products or for scientific or educational purposes . Therefore , the court considers that there is no evidence in the case file that the removed tissues were used for purposes other than transplantation ...

There is no evidence in the case file demonstrating that the removal of tissue for transplantation purposes had been carried out disregarding the deceased person ’s refusal , as expressed during his lifetime and recorded in accordance with the law in force at the relevant time , or disregarding any refusal expressed by the closest relatives .

Taking into account the fact that legislative instruments do not impose any obligation on the experts who carry out the removal of tissue and organs from deceased ORG bodies to inform persons about their rights to refuse tissue or organ removal , the court considers that the experts did not have any obligation to do so ; by not informing the deceased person ’s relatives about their intention to remove tissue , the experts did not breach the provisions of the [ Law ] , as effective DATE . Section CARDINAL of the [ Law ] provides for the right of the closest relatives to refuse the removal of the deceased person ’s organs and/or tissue , but does not impose an obligation on the expert to explain these rights to the relatives . Given that there are no legislative instruments which impose an obligation on the experts to inform relatives about their intention to remove tissue and/or organs and to explain to the relatives their right to object by refusing their consent , the court considers that a person can not be punished for a failure to comply with an obligation which is not clearly laid down in a legislative instrument in force . Therefore , the court finds that the experts , by carrying out the tissue and organ removal from the deceased , did not breach ... the [ Law ] .

... The court finds that the experts’ actions did not constitute the elements of a crime proscribed by CARDINAL of LAW ; therefore , it is possible to discontinue the criminal proceedings for exonerating reasons DATE namely on the grounds of section CARDINAL ( CARDINAL ) of LAW ‒ owing to the absence of the elements of a crime . ”

On DATE the superior prosecutor responded to a complaint lodged by the applicant . She admitted that the inquiry had taken a long time owing to numerous complaints against the decisions . However , she did not find any particular circumstances which would indicate that it had been unduly protracted . At the same time , she informed the applicant that the court had quashed the DATE decision upon the appeal by the experts . She further stated that a new decision to discontinue the criminal inquiry had been adopted on DATE and that the applicant would soon be duly notified .

Indeed , the applicant received the DATE decision DATE . It was reiterated in that decision that the experts did not have any legal obligation to inform anyone about their right to consent to or refuse organ or tissue removal . Section CARDINAL of the PERSON provided for the right of the closest relatives to object to the removal of the deceased person ’s organs and tissue , but did not impose any obligation on the expert to explain these rights to the relatives . A person could not be punished for a failure to comply with an obligation which was not clearly laid down in a legal provision ; the experts had therefore not breached the PERSON . The applicant lodged further complaints .

On DATE the prosecutor replied , inter alia , that there were no circumstances indicating the desecration of a human body . At the same time , she explained that the experts had performed actions in connection with the unlawful tissue removal in order to use the tissue for medical purposes . After the removal of tissue , other material was commonly implanted to restore the visual integrity of dead bodies . Therefore , the criminal inquiry had concerned actions under section CARDINAL of LAW and not under LAW proscribing desecration of a dead body .

On DATE a superior prosecutor replied that there were no grounds for examining the actions of the persons who proceeded with the tissue removal under section CARDINAL of the Criminal Law as desecration of a dead body . The experts had proceeded in accordance with an instruction issued by ORG , implanting other material in the place of the removed tissue . According to the instruction , tissue was to be removed in such a way so as not to mutilate the body , and , if necessary , subsequent restoration was to be carried out .

On DATE another superior prosecutor of ORG replied with a final negative decision .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicants were born in DATE , DATE and DATE respectively . The first and second applicants live in PERSON and the third applicant lives in GPE .

On DATE at TIME they were implicated in a minor road traffic accident . Soon thereafter , the police arrived at the scene .

According to the applicants , the police immediately handcuffed them and took them to ORG where they were beaten up . However , according to the official reports on the use of force prepared by CARDINAL duty officers , the applicants were drunk and violent from the arrival of the police at the scene of the accident . As they tried to flee the scene and , moreover , attacked the officer who tried to stop them , the police decided to arrest them . At the police station , the applicants continued to behave violently . In order to subdue the applicants , the CARDINAL duty officers hit them a couple of times with truncheons and then handcuffed them . In the process , as they resisted being handcuffed , Mr PERSON and Mr PERSON struck their heads against office furniture .

Having spent TIME at the police station , the applicants were taken to the hospital . According to medical reports , Mr PERSON had a bruise on his right shoulder , Mr PERSON had bruises on his head , right arm and right shoulder , and Mr PERSON had bruises on his head , chest , abdomen , back and right shoulder .

On TIME the police lodged a criminal complaint against the applicants accusing them of the offence of obstructing a police officer in the discharge of his duty . At TIME the applicants were taken to the investigating judge . They complained that they had been beaten up by the police . However , the judge took no action in that regard . They were released at TIME

On DATE CARDINAL DATE newspapers with a large circulation published the ORG allegations that they had been beaten up by the police . DATE ORG of ORG issued an official denial . DATE , ORG ( the internal control service of ORG ) carried out an internal investigation into the ORG allegations . It interviewed the applicants , CARDINAL police officers and QUANTITY civilians ( while no civilians were present at the LOC of the police station when the police resorted to the use of force against the applicants , ORG interviewed a number of eyewitnesses to the applicants’ arrest and the doctor who had examined the applicants on the critical day ) . All of them except the applicants maintained that the applicants had been drunk and violent at the relevant time . ORG concluded in its report of DATE that the police had acted in accordance with law . The report was not made available to the applicants .

On DATE the public prosecutor charged the applicants with the offence of obstructing a police officer in the discharge of his duty . The applicants were ultimately convicted as charged and given suspended sentences .

On DATE the applicants lodged a criminal complaint against CARDINAL police officers accusing them of ill - treatment . Having obtained an official report finding that the police had acted in accordance with law , on DATE the public prosecutor decided not to prosecute . On DATE the applicants started a subsidiary prosecution by lodging a bill of indictment against the same officers . They did not file a civil - party claim .

The first hearing before ORG took place on DATE . Having heard the police officers accused of ill - treatment , some other officers , the applicants and some eyewitnesses to their arrest , on DATE ORG decided that the use of force against the applicants had been lawful . It therefore acquitted the accused police officers . On DATE ORG upheld that ruling . The last judgment of DATE was served on the applicants on DATE .

NORP In DATE the applicants applied to the public prosecutor to lodge a request for the protection of legality on their behalf . On DATE the public prosecutor decided not to do so .

The Criminal Code CARDINAL ( Official Gazette of GPE nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL ; and ORG nos . CARDINAL , CARDINAL , FAC , FAC , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) was in force from DATE until DATE . The relevant Article reads as follows :

“ Whoever acting in an official capacity ill - treats or insults another or otherwise treats such person in a humiliating and degrading manner , shall be punished with imprisonment of from DATE . ”

The Code of Criminal Procedure DATE ( Official PERSON of the FRY nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ; and ORG nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL and CARDINAL ) was in force DATE and DATE . Most criminal offences ( including ill - treatment by public officials acting in an official capacity ) were subject to public prosecution , but some minor offences were only subject to private prosecution . Pursuant to LAW , the public prosecutor had to prosecute when there was sufficient evidence that a person had committed a criminal offence which was subject to public prosecution . LAW provided that when the public prosecutor decided not to prosecute such an offence because of a lack of evidence , the victim of the offence had the possibility of starting a subsidiary prosecution within DATE from the notification of the public prosecutor ’s decision .

ORG of ORG was set up by ORG . The first Inspector General was appointed in DATE . As the Ordinance is not in the public domain , little is known about the work of that body in DATE of its existence . It is , however , certain that the Inspector General was answerable to the Minister of Interior . The ORG was reorganised and renamed ( it is now called the Sector for ORG ) in DATE , but this is irrelevant in the present case .

LAW DATE ( Official PERSON of ORG . CARDINAL , CARDINAL , CARDINAL and CARDINAL ; and ORG of the FRY no . CARDINAL ) has been in force since DATE . Section CARDINAL(CARDINAL ) thereof provides that anyone who has suffered fear , physical pain or mental anguish as a result of a breach of his human rights ( prava ličnosti ) is entitled to sue for damages . In accordance with section CARDINAL ) of the LAW , a legal entity , which includes the ORG , is liable for any tort committed vis - à - vis a third party by its organs in the course of , or in connection with , the exercise of their functions .

LAW ( Official Gazette of GPE nos . CARDINAL and DATE ) was in force from DATE until DATE . LAW provided that if a victim of a criminal offence had brought a civil action for damages against the offender , the civil court was bound by a final decision , if any , of the criminal court finding the offender guilty . The civil courts have persistently interpreted that provision so that a criminal conviction was not a condition for an award of damages ( see , for instance , judgment Gž . CARDINAL of ORG of DATE ; judgment Gž . CARDINAL of ORG of DATE ; judgment PERSON . CARDINAL of ORG of DATE ; judgment Gž . CARDINAL of ORG of DATE ; judgment PERSON . CARDINAL of ORG of DATE ; and judgment PERSON . CARDINAL of ORG of DATE ; in which civil courts awarded non - pecuniary damages for injuries sustained during an arrest operation and/or in police custody in the absence of a criminal conviction against any police officer ) .

LAW DATE ( ORG of ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ; and ORG of the FRY nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) , which was in force until DATE , contained the same provision ( see section CARDINAL(CARDINAL ) thereof ) .

LAW , adopted under the auspices of ORG on DATE , entered into force in respect of GPE on DATE . The “ concluding observations ” on GPE of ORG , the body of independent experts set up to monitor the implementation of this treaty , read , in the relevant part , as follows ( document CCPR / CO/CARDINAL/SEMO of DATE , § CARDINAL ) :

“ While taking note of the establishment in GPE of [ ORG ] in DATE , ORG is concerned that no independent oversight mechanism exists for investigating complaints of criminal conduct against members of the police , which could contribute to impunity for police officers involved in human rights violations . ORG party should establish independent civilian review bodies at the Republic level with authority to receive and investigate all complaints of excessive use of force and other abuse of power by the police . ”