Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Legal assistance of his own choosing;Article 6 - Right to a fair trial);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Dean Spielmann;Dmitry Dedov;Erik Møse;Guido Raimondi;Helen Keller;Ján Šikuta;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Mark Villiger;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE , CARDINAL TIME , QUANTITY murders , an armed robbery and an arson attack were committed in LOC , a residential neighbourhood of GPE .

DATE , a number of people from Vežica were brought in for questioning at FAC of the Primorsko - Goranska Police Department ( FAC uprava Primorsko - goranska , PERSON policijska postaja PERSON ; hereinafter “ FAC ” ) .

At TIME , the applicant was brought to FAC for questioning . Blood samples were taken from him for DNA analysis and the police searched his flat and mobile phone and seized a number of his personal items .

The applicant was kept at FAC until his formal arrest at TIME on DATE in connection with the above offences .

According to the applicant , at TIME on DATE his mother , who lived and worked in GPE , called a lawyer , PERSON , and asked him to represent the applicant . PERSON came to FAC at TIME but the police officers refused to let him see the applicant . ORG remained in FAC until TIME . He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession , but the police officers refused to accept his complaint on the grounds that he had no power of attorney and pushed him out of the police station . PERSON immediately informed the PERSON GPE Attorneys , GPE and GPE , about the incident and they made a note in their case file . ORG was also immediately informed .

At around TIME the applicant ’s father signed a power of attorney in favour of the lawyer PERSON to defend his son . A legal trainee , ORG , then tried to submit the power of attorney to the police but was told to leave .

At some time QUANTITY again tried to contact the applicant in FAC but was denied access to him .

At TIME reported the events described above to the Chief of ORG , PERSON , who made a note about their conversation .

The applicant was never informed by the police that ORG had been hired and had come to FAC .

According to the applicant , he had repeatedly asked the police officers in FAC for GPE to be called , but was told that they had tried to contact him but there had been no answer .

According to the Government , at TIME on DATE the applicant agreed to be represented by a lawyer , ORG , a former chief of ORG . He arrived at FAC at TIME The Government state that the applicant chose ORG from a list of lawyers of ORG presented to him by the police and that the questioning of the applicant began at CARDINAL p.m. According to the record of the applicant ’s questioning , the police advised him of his right not to incriminate himself and his right to remain silent and he expressly stated for the record that his lawyer was GPE

The relevant part of the record of the police questioning of the applicant by officers ORG and GPE on DATE , which commenced at TIME and concluded at TIME , reads as follows :

“ I have been informed of the reasons for my arrest , the criminal offences of which I am accused , my rights , the right not to answer and the right to be legally represented , as well as the right to have members of my family informed about my arrest . I have chosen and authorised a defence lawyer from GPE , GPE , to represent me in these proceedings , and I have consulted him in private ; following the consultation with the lawyer [ M.]R. I have decided to give my evidence .

The record then gives the applicant ’s description of the relevant events concerning the charges against him : he confessed that on TIME DATE , together with GPE and GPE . , he had gone to ORG ’s flat in PERSON , where he had taken a certain amount of money from PERSON and then shot and killed him , his girlfriend and his father . He had then set their flat on fire in order to destroy any trace of his having been there . He also stated that he had promised GPE and GPE . that he would confess to the crimes and take the blame himself if they were arrested .

The final part of the report reads :

“ I am not experiencing any withdrawal symptoms or any other crisis . I have given my evidence voluntarily in the presence of my lawyer and a County State Attorney . I have read the entire statement and after that I am signing it as truthful . ”

Every page of the record of the applicant ’s statement is signed by him .

The relevant part of the written record of the applicant ’s questioning by an investigating judge reads :

“ In response to a question by the court about the choice of defence counsel since the case file includes a record of the questioning of the suspect in the presence of defence counsel PERSON , and also a power of attorney signed by the parents in favour of the lawyer PERSON , the suspect answers :

‘ I will sign the power of attorney for PERSON , a lawyer from PERSON , and I am hereby withdrawing the power of attorney for the lawyer PERSON

In response to a question by defence counsel as to whether he had hired the lawyer [ M.]R. , the suspect answers :

‘ No , I did not hire him . I specifically told the police officers that I wanted ORG to represent me .

I do not know anything about PERSON coming to the police premises.’

In response to a further question by defence counsel as to whether he was under the influence of drugs , the accused answers :

‘ I was under the influence of alcohol and drugs.’

On DATE ORG applied to the investigating judge for the GPE State Attorney and all his deputies to be removed from the case . The investigating judge forwarded the request to the GPE State Attorney ’s Office . The relevant part of the request reads :

“ TIME , counsel for the defence learned that the GPE State Attorney , ORG , had been present during the questioning of PERSON as a suspect by police officers of FAC on DATE at TIME , in the presence of the ‘ defence lawyer’ M.R.

On DATE at TIME the mother of PERSON , ORG . NORP , who lives and works in GPE , called [ ORG ] and asked him to defend her son PERSON , who was suspected of the offence of aggravated murder . At TIME [ PERSON ] came to FAC but the police officers refused to let him see PERSON and also did not tell [ PERSON ] that his mother had hired a lawyer . [ PERSON ] remained in FAC until TIME . He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession , but the police officers refused to accept his complaint on the grounds that he had no power of attorney and pushed him out of the police station . [ PERSON ] immediately informed the PERSON GPE Attorneys , GPE and GPE , about the incident and they made an official note in their case file .

Therefore , at TIME the PERSON State Attorney already knew that [ FAC ] had been hired by [ PERSON ] mother and that he had not been able to contact his client .

The [ PERSON ] ORG was also immediately informed .

At around TIME PERSON father signed a power of attorney for the defence of his son . A legal trainee , ORG , [ then ] tried to submit the power of attorney to the police but was told to ‘ fuck off with that power of attorney’ and therefore it was not submitted .

At TIME the defence lawyer [ G.]M. again tried to contact his client in FAC but was denied access to him ... However , the defendant was never informed that a defence lawyer had been hired and had come to FAC .

At TIME [ ORG ] informed the Chief of ORG ... PERSON , who apparently made an official note concerning their conversation . However , the defendant was never informed that a defence lawyer had been hired and also never asked whether he wanted to be represented by the lawyer hired by his family .

Besides that , ever since he had been brought to FAC [ PERSON ] had asked on a number of occasions for [ G.M. ] to be called but was told by the police officers that they had tried but there had been no answer . When he was brought to the police station , blood samples were taken from the defendant . They show that he had a high level of alcohol and drugs in his blood .

TIME on DATE and TIME on DATE ( these time periods are only known to [ ORG ] from informal sources because he had no access to the GPE State Attorney ’s case file ) the defendant was not given any food .

It is clear that although all these facts were known to the Rijeka State Attorney , ORG , he disregarded them and , although present in person , allowed the defendant to be questioned in the presence of a lawyer who had [ neither been requested by him ] nor ... hired by his family . This amounts to unlawfully extracting a confession , in breach of LAW of LAW , given that the GPE Attorney , since TIME [ on DATE ] , had known who the [ applicant ’s chosen ] defence lawyer was .

On the same date [ ORG ] sent the power of attorney to ORG and written complaints were also sent to ORG , the ORG Attorney General of GPE , the GPE State Attorney ’s ORG , ORG , ORG , ORG , the Chief of ORG and ORG . ... ”

On DATE an investigation was opened in respect of the applicant , GPE and GPE . on suspicion of having committed the CARDINAL aggravated murders and arson in GPE on DATE .

On DATE the ORG Attorney General of GPE ( PERSON državni odvjetnik PERSON ) dismissed PERSON ’s request for the removal of the GPE State Attorney on the grounds that there were no reasons for disqualifying him from dealing with the case . The relevant part of the decision reads :

“ ... a statement from ORG , the GPE State Attorney , has been obtained .

In his statement the GPE State Attorney says that on DATE at TIME he was in the LOC of FAC together with his colleague LAW , where they were informed about the evidence thus far obtained , and all the evidence that remained to be taken in connection with the events at issue . He came back to the County State Attorney ’s premises at TIME , when the deputies GPE and GPE informed him that the lawyer PERSON had come to the LOC of GPE Attorney and complained about the conduct of the police officers of ORG in refusing him access to PERSON , even though he had been given an oral authorisation by PERSON mother , [ who had called him from ] GPE . The lawyer had not presented any proof of his authority to represent PERSON or of his telephone conversation with PERSON mother . He had not been able to make contact with the suspect ’s father , having been unable to find him since he had no fixed address .

After [ the GPE State Attorney PERSON ] had left the LOC of GPE Attorney , he had had no further information about the actions of the above - mentioned lawyer .

At TIME [ ORG ] returned to ORG in connection with the case at issue . There , an inspector of ORG told him that the suspect PERSON was willing to submit his defence in the presence of his defence counsel , PERSON , and it was agreed that the questioning would start at TIME at FAC at TIME and together they went to the room where the suspect PERSON was . There , the suspect signed the power of attorney in favour of the lawyer PERSON and agreed that [ GPE ] would be present during his questioning by the police . After that , at the request of ORG , the suspect was allowed to talk to the lawyer in private . After TIME they all moved to another room , where the suspect , in the presence of his lawyer , GPE Attorney , QUANTITY police inspectors and a typist , put forward his defence , which was recorded in writing , and all this lasted for TIME . After that they all signed the written record [ of questioning ] and he left the room together with the lawyer PERSON

On DATE the GPE State Attorney dismissed the request for the removal of his deputies on the same grounds . The relevant part of that decision reads :

“ A deputy GPE State Attorney , LAW , said that she had not participated at all in the questioning of PERSON by the police , and that she had no knowledge about that stage of the proceedings and , in particular , that she had no information about PERSON representation by or choice of defence counsel during his questioning . She only knew that on DATE the lawyer PERSON had come to the LOC of the GPE State Attorney , where she had met him . He had complained about the choice of defence counsel for PERSON . He had said that he was PERSON defence counsel , having been authorised by his mother in a telephone conversation . She [ I.B .- L. ] commented that that could not constitute a valid power of attorney ...

The statements of the GPE deputy state attorneys GPE and GPE show that the only information they had about the conduct of the police came from the lawyer [ G.]M. , who wanted to complain about the conduct of police officers in connection with the choice of lawyer to represent and defend PERSON . ... PERSON drew up an official note about this matter and presented it to PERSON The statements of the GPE deputy state attorneys GPE and GPE show that [ FAC ] had mentioned a power of attorney given to him by PERSON mother , who lived in GPE and with whom PERSON had talked on the telephone . The deputies told him that a power of attorney given by telephone could not be considered valid . They had no knowledge of any other acts , including the obtaining of a power of attorney from PERSON father ... ”

On DATE ORG informed ORG that he would no longer represent the applicant and on DATE the President of ORG appointed a legal - aid lawyer , PERSON , to represent the applicant .

During the investigation , evidence was taken from a number of witnesses , and a report on the inspection of the crime scene and the search and seizure , as well as medical , fire and ballistics expert reports , were obtained by the investigating judge .

On DATE the GPE State Attorney ’s Office indicted the applicant , GPE and GPE . in ORG on CARDINAL counts of aggravated murder and CARDINAL count of arson committed on DATE in LOC .

The applicant , represented by the legal - aid lawyer ORG , lodged an objection against the indictment with ORG on DATE on the grounds that it had contained numerous substantive and procedural flaws . He also argued that he had given his statement to the police under the influence of alcohol and drugs . He made no comments as to his legal representation during the police questioning .

The applicant ’s objection against the indictment was dismissed as ill - founded by a CARDINAL - judge panel of ORG on DATE .

On DATE , DATE of the trial , the applicant and the other accused pleaded not guilty to all charges and the trial court heard evidence from CARDINAL witnesses .

Another hearing was held on DATE , at which the trial court examined video - recordings of the crime - scene investigation and the autopsy of the victims .

Further hearings were held on CARDINAL DATE and DATE , at which the trial court heard evidence from CARDINAL witnesses .

At a hearing on DATE CARDINAL experts in toxicology , a fingerprint expert , a ballistics expert and a DNA expert gave evidence . The defence made no objections in respect of their evidence . At the same hearing CARDINAL other witnesses gave evidence .

At a hearing on DATE the trial court heard evidence from another expert in toxicology and a pathologist , as well as CARDINAL other witnesses . The defence made no objections in respect of the evidence of the expert witnesses but asked the trial court to commission a psychiatric report concerning the applicant .

At the same hearing the defence lawyer asked for a handwriting expert ’s report to be commissioned in respect of the applicant ’s signature on the record of his statement given to the police on DATE . She argued that the applicant had not signed any record during his questioning by the police .

The trial court considered that for the time being it was not necessary to commission a psychiatric report and thus dismissed the applicant ’s request to that effect . However , it commissioned a handwriting expert ’s report in respect of the signature on the record of the applicant ’s statement given to the police .

NORP On DATE the handwriting expert submitted her report . She found that the applicant had signed the record of his statement given to the police on DATE .

Another hearing was held on DATE , at which a medical expert , fire expert witnesses and CARDINAL other witness gave evidence . The handwriting expert also gave oral evidence confirming her previous findings . The applicant ’s lawyer challenged the veracity of these findings and applied to have another report commissioned , but the application was dismissed by the trial court . At the same hearing , the trial court commissioned a psychiatric report in respect of the applicant and the other accused .

On DATE the applicant asked ORG to call the lawyer PERSON as a witness in connection with the alleged unlawful extraction of his confession by the police . He pointed out that ORG had not been allowed to see him while he had been in police custody and stated that he had been forced to confess by the police officers .

On DATE the CARDINAL psychiatric experts submitted their report to ORG . They found that the applicant suffered from borderline personality disorder and addictions to heroin and alcohol . However , they found no distinctive mental disorder or illness . They concluded that , even assuming that he had been intoxicated at the time when the murders had been committed , he had retained the mental capacity to understand the nature of his acts , although it had been diminished to a certain degree . As to his mental capacity concerning the charge of arson , they concluded that , at the time when the offence had been committed , the applicant had been able to understand the nature of his acts and to control his actions .

At a hearing on DATE the psychiatric experts confirmed their findings and the parties made no objections in respect of their evidence . The trial court also dismissed the applicant ’s request for the lawyer PERSON to be heard as a witness , on the grounds that all the relevant facts had already been established .

At the same hearing CARDINAL of the accused , GPE . , confirmed the course of the events as described by the applicant in his statement given to the police on DATE . GPE . claimed , however , that he had not personally participated in the killings , because he had panicked and had left the flat when he had heard fighting .

After GPE . had given his statement , the Deputy County State Attorney amended the indictment . The applicant was charged with CARDINAL counts of aggravated murder , armed robbery and arson , and GPE and GPE . were charged with armed robbery and aiding and abetting the perpetrator of an offence . The applicant and the other accused pleaded not guilty to the charges listed in the amended indictment .

On DATE GPE gave oral evidence confirming the course of the events as described by GPE . He stated that after the applicant had got into a fight with PERSON , he had heard gunshots , after which he had panicked and had left the flat .

At the same hearing the parties submitted their closing arguments . The applicant ’s defence lawyer argued that it had not been proved that the applicant had committed the offences he was charged with . She pointed out , however , that if the trial court took a different view , then the applicant ’s confession to the police and his sincere regret had to be taken into consideration in sentencing him .

DATE . On DATE the ORG found the applicant guilty of the CARDINAL counts of aggravated murder and of the charges of armed robbery and arson and sentenced him to DATE imprisonment . The trial court first examined the applicant ’s confession against those of the other co - accused , GPE and GPE . , and found that his confession was essentially consistent with the evidence provided by them . In finding the applicant guilty , the trial court also assessed his confession against the evidence from the case file .

The trial court relied in particular on the search and seizure records and photographs depicting the accused GPE holding the same type of handgun as had been used for the murders . On the basis of the witness statements and the recording of a nearby video - surveillance camera , the trial court concluded that the applicant and the other co - accused had come to PERSON ’s flat on the critical date . Furthermore , the ballistics reports and the crime - scene reports indicated that the details of the statements of the applicant and his co - accused were accurate , and the course of the events was ascertained on the basis of the fire , ballistics and toxicology reports and the DNA report . The trial court also found that the statements of the accused as to the manner in which the murders had been carried out were supported by the autopsy report , the evidence of the pathologist provided at the trial , the crime - scene report and the witness statements about the gunshots that had been heard in PERSON ’s flat . Furthermore , as to the arson charge , the trial court examined the material from the crime - scene investigation and the evidence from the fire expert report , as well as medical records and damage reports submitted by the victims , and the statements of a number of residents in the building where the fire had occurred .

As regards the applicant ’s questioning by the police and the request made by the defence to hear evidence from the lawyer PERSON ( see paragraphs CARDINAL and CARDINAL above ) , ORG noted :

“ The first accused PERSON confessed to the criminal offences of robbery , aggravated murder of GPE , GPE and GPE ... exactly as is stated in the operative part of this judgment , in front of the police and in the presence of a defence lawyer . He later tried to contest that statement , claiming that he had not hired the lawyer PERSON , that he had told the police officers that he wanted PERSON as his lawyer , that at the time he had been taken to the police station he had been under the influence of alcohol and drugs and so on . However , this defence is not acceptable . The written record of arrest shows that the first accused PERSON was arrested on DATE at TIME at FAC , and the lawyer [ M.]R. , in favour of whom the first accused PERSON signed the power of attorney , came to the police station on DATE at TIME The written record of the questioning of the then suspect PERSON shows that PERSON was informed at TIME and that the questioning started at TIME Besides the officers of ORG , a typist and the defence lawyer of the then suspect PERSON , GPE Attorney was also present during the questioning . The introductory part of the written record [ indicates ] that the then suspect PERSON clearly stated that he had chosen and authorised PERSON to act as his defence lawyer and had consulted with him , after which he decided to give his statement . The written record is properly signed by the persons present . The first accused PERSON had read the written record before signing it . Thus , the above shows without doubt that the contentions of the first accused PERSON that he had not hired PERSON as his lawyer are unfounded . During the trial , at the request of PERSON defence , a handwriting expert gave her opinion about the signature of PERSON on the written record of his questioning by the police . The expert opinion proved beyond any doubt that the contested signature was that of PERSON . The panel accepts such findings in their entirety ; the findings were further explained at a hearing by the expert PERSON . PERSON Her findings were given in an objective , impartial and professional manner . Therefore , the questioning of the first accused PERSON by the police was carried out in compliance with the provisions of LAW .

The request made by [ PERSON ] defence to call the lawyer PERSON as a witness ... was dismissed as irrelevant , since the documents from the case file do not reveal that there was any extraction of a confession by the police , but only [ record ] the time at which the lawyer [ PERSON came [ to the police station ] , whereupon the questioning of [ PERSON ] in the presence of the lawyer for whom he had signed a power of attorney started ... Nobody , including [ PERSON ] defence lawyer who was present during the police questioning – [ M.]R. – has alleged any unlawful extraction of a confession and there is no indication of this in the record of the statement given by PERSON , [ who ] at the time [ was ] only a suspect . ”

The applicant lodged an appeal against the first - instance judgment with ORG ( PERSON ) on DATE . He complained , inter alia , that the conviction had been based on his confession to the police , which had not been given in the presence of a lawyer of his own choosing , namely ORG , but in the presence of a lawyer , PERSON , who had been offered to him by the police . The applicant also referred to the request for the removal of the GPE State Attorney and all his deputies lodged by ORG DATE , highlighting the part of that request which stated that he had been denied food during his detention in police custody . The relevant part of the applicant ’s appeal reads :

“ The statement given by the first accused to the police was unlawfully obtained , for the following reasons . When the first accused was brought to ORG his defence rights were seriously infringed . However , during the trial this infringement was ignored . On DATE , the first accused ’s mother and then also his now late father hired PERSON as his defence lawyer before the police , after he had been arrested . However , PERSON was not allowed access to the accused , and subsequently informed the relevant authorities thereof , but they ignored this . PERSON therefore lodged an action in ORG in respect of an unlawful act , as well as a request for the removal of the GPE State Attorney and all his deputies . In that request he alleged that the first accused had not been given any food by the police from DATE at TIME , when he had been brought to FAC , until he had agreed to be represented by the lawyer PERSON on DATE at TIME so as to give a self - incriminating statement , which was in violation of LAW of LAW . Because of that the defence asked for the lawyer PERSON to be examined [ at the trial ] since he had knowledge about the questioning of the first accused by the police . ”

On DATE ORG dismissed the applicant ’s appeal as ill - founded . As regards his complaints concerning his statement to the police , that court noted :

“ ... The lawfulness of [ the statement given to the police ] was not put in doubt by the appellant ’s complaints that ORG was not his lawyer and that his lawyer was PERSON , who had been hired by his father and mother on DATE , or by the appellant ’s complaints that he had been denied food in the period TIME on DATE and TIME on DATE until he had agreed to hire ORG as his lawyer , since according to the record of his arrest ( pages ... ) , the appellant was arrested at CARDINAL TIME on DATE and the lawyer PERSON arrived [ at the police station ] at TIME on DATE . ”

The applicant lodged a further appeal against the appeal court ’s judgment with ORG on DATE , reiterating his previous arguments . The relevant part of the appeal reads :

“ The first accused has to comment on the conclusions of the appeal court that the allegation that food was denied to him from TIME on DATE until he agreed to be represented by the lawyer PERSON at TIME on DATE had no bearing on the lawfulness of the evidence [ the record of his questioning ] because the written record of his arrest showed that he had been arrested on DATE at TIME and that the lawyer PERSON had arrived on DATE at TIME The Record of Attendance DATE , which is in the case file , shows that the first accused was brought to the police station on DATE at TIME and was kept there . He was arrested DATE , as found by the first - instance court . However , it is not true that the lawyer PERSON came to the police station at TIME : he came at TIME , which shows that the allegations of the first accused are true . That fact could have been verified by the evidence of the lawyer PERSON , who represented the first accused during the investigation ... ”

On DATE ORG , acting as the court of final appeal , dismissed the applicant ’s appeal as ill - founded . That court pointed out that the record of the applicant ’s statement suggested that he had chosen PERSON to represent him during police questioning and that ORG had provided him with adequate legal advice . ORG also noted that there was nothing in the case file to indicate that the applicant had been ill - treated or forced to confess . The relevant part of the judgment reads :

“ The appellant erroneously argues that the first - instance court committed a grave breach of criminal procedure , contrary to LAW , in basing his conviction on the defence he gave to the police in the presence of a defence lawyer , which [ in the appellant ’s view ] constitutes unlawfully obtained evidence for the purposes of LAW , and that the record of his questioning as a suspect by the police ( in the presence of a defence lawyer ) should thus have been excluded from the case file . In so doing , the appellant challenges the reasoning of the second - instance judgment to the effect that the lawfulness of the evidence was not affected by the appellant ’s arguments that during his apprehension and arrest he had not been given food until he had agreed to be represented by ORG These arguments of the appellant were refuted by the second - instance court on the basis of all the formally established information contained in the record of [ his ] questioning in the presence of a lawyer on DATE .

This third - instance court notes that [ the complaint ] regarding the question of the presence of a lawyer [ during the questioning ] , as a legal requirement for the lawfulness of evidence obtained in this way during the police investigation , relates to CARDINAL objections . The first objection concerns the restriction of access to the lawyer of [ the defendant ’s ] own choosing , and the second objection relates to the pressure exerted on the suspect through the denial of food ( LAW ) , which , according to the appeal , eventually made him accept legal representation by the lawyer imposed on him , PERSON , although his parents had already engaged the services of the lawyer PERSON on TIME DATE .

It is to be noted that during the police criminal investigation , a number of persons with a background of drug abuse , and with links to the victim PERSON , were arrested , in particular from the neighbourhood of ORG , and it was in the course of this action that the accused PERSON was also apprehended . Only when a probable cause was established that the accused could have been the perpetrator of the offences at issue was he arrested on DATE at TIME

At the same time the father of the accused , who was in GPE whereas the accused ’s mother was in GPE , was informed [ of the arrest ] by the police at TIME , which shows that from that moment the father of the accused ( after a telephone conversation with his mother ) could have engaged the services of a lawyer for the accused , for which he would most certainly have needed some time . In such circumstances , this third - instance court finds that the parents of the accused could not already have signed a power of attorney for the lawyer of the accused ’s choice by CARDINAL p.m. on DATE in question .

The other information from the record of the accused ’s arrest and from the record of his questioning by the police shows that on DATE , as is indicated by the record of the arrest , the accused was brought to ORG , and , as is apparent from the record of PERSON questioning by the police , the defence lawyer PERSON was informed at TIME and came to the police station at TIME The questioning itself commenced at TIME and ended at TIME , with a break TIME and TIME

It should be emphasised that in the introductory part of the record [ of his questioning ] the suspect PERSON expressly stated that he had chosen PERSON as his defence lawyer and had signed the power of attorney in favour of him , and the record of the questioning shows that the defence lawyer had TIME for consultation with the suspect before the questioning , in which time he was able to advise him of his rights .

Thus , the relevant fact which follows from the formal procedural action described in the record of the suspect ’s questioning is that the chosen lawyer came TIME before the questioning commenced , and in the consultation with [ the suspect ] before the questioning he was able to give [ the suspect ] genuine legal advice as his chosen lawyer .

It should also be noted that the essence of the suspect ’s right to have a lawyer present during his questioning by the police lies in the necessity for legal protection of his rights , which is why the beginning , conduct and end of this formal [ procedural ] action is fully registered in the record [ of the questioning ] .

This is why all arguments to the contrary , as set out in the appeal against the second - instance judgment , and particularly those relating to the need to question the lawyer PERSON as the second concurrent lawyer of [ the suspect ’s ] choosing , have no support in the content of the formal record of the suspect ’s questioning of DATE , because the record contains formally registered information about the contact with the chosen lawyer , the time when the chosen lawyer came into ORG , the time when the questioning of the suspect commenced , the period in which a short break took place , and the time when the procedural action finished , all of which was confirmed by the suspect and the defence lawyer of his choosing by signing the record without any objections as to its content .

However , irrespective of the fact that the defence of the accused in the context of police questioning formally satisfied the requirements of LAW , the general thrust of the defence , as well as the substance of the defence as regards particular acts , and the confession , were provided voluntarily by the suspect , and his chosen lawyer was most certainly unable to have any influence on this , which at the same time rules out the possibility of any mental pressure being exerted on the suspect , as well as his subsequent arguments about the lawyer having been imposed on him during the police investigation . On the contrary , the suspect ’s defence rights were fully secured , as required LAW and LAW .

There is therefore no breach of LAW in conjunction with LAW . The refusal of the request to have the record of the suspect ’s questioning by the police in the presence of a lawyer of his choosing excluded from the case file as unlawfully obtained evidence does not constitute a breach of his defence rights because the record of the suspect ’s questioning by the police clearly and undoubtedly shows that the lawyer who was present [ during the questioning ] was the lawyer of the suspect ’s free choice , and this also follows from the signed power of attorney in favour of the lawyer in question , who protected the suspect ’s rights during the questioning . Accordingly , the refusal of the defence ’s request did not have any bearing on the lawfulness and correctness of the judgment . At the same time , it was not necessary to question the new chosen lawyer as a witness and , for the reasons set out above , the facts of the case were not insufficiently or erroneously established , as was argued in the defendant ’s appeal against the second - instance judgment . ”

The applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) on DATE . He complained , inter alia , that he had been ill - treated while in police custody and that he had been forced to confess . He also complained that he had been denied the chance to have a lawyer of his own choosing conduct his defence . He reiterated his arguments from his previous appeals and added :

“ It is also important to stress that at the session of ORG as the court of third instance , held on DATE , the defence indicated that the applicant had been brought to the police station at TIME on DATE , and that that fact was shown in the Record of Attendance DATE , which was in the case file . The defence asked the panel [ of ORG ] to have a look at that record . However , after a brief examination of the case file it was established that the document in question could not be found , and that it would be looked at later . However , the judgment of ORG , acting as a third - instance court , shows that the document had [ still ] not been found ... ”

On DATE ORG dismissed the applicant ’s constitutional complaint . ORG , endorsing the reasoning of ORG , noted that the proceedings as a whole had been fair and that there was no evidence in the case file that the applicant had been ill - treated while in police custody .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law . In application no . MONEY the applicant also raised other complaints under the provisions of the Convention .


NOVESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

Details about the applicants are set out in the appendix .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

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

Mr PERSON ( “ the first applicant ” ) is the applicant in applications nos . CARDINAL and ORG and is the second applicant in application no . DATE . He is the brother - in - law of PERSON ( “ the second applicant ” ) , who is the first applicant in application no . DATE . The second applicant lives in GPE in the first applicant ’s house , while the first applicant lives in GPE . The first applicant stated that he stayed in his house in the respondent ORG “ when needed ” , in particular during DATE . The Government did not submit any evidence to refute that statement .

On DATE the first applicant lodged a criminal complaint against PERSON , his neighbour , for the misappropriation of a right ( самовластие ) . He alleged that on DATE H. and other people had unlawfully demolished a wall on his property in order to get access to a road . He argued that he had suffered damage as a result . In a submission on DATE the first applicant laid out the specifics of his claim for compensation .

On DATE ORG ( “ the trial court ” ) convicted PERSON and sentenced him to CARDINAL months’ imprisonment , suspended for DATE . The court relied on the fact that no penalty had previously been issued against H. as a mitigating circumstance . It further instructed the first applicant to pursue his compensation claim by means of a separate action for damages in order to not prolong the criminal proceedings ( за да не се одолговлекува кривичната постапка ) .

The first applicant lodged a complaint against that decision . He submitted , inter alia , that the penalty was too lenient and that the trial court had failed to decide on his compensation claim .

On DATE ORG ( “ the appellate court ” ) dismissed the applicant ’s complaints and upheld the lower court ’s judgment and the penalty it had imposed . It remitted the issue regarding costs for fresh examination . It did not comment on the arguments concerning the compensation claim .

According to the first applicant while the trial was pending , PERSON had repeatedly attacked his property by throwing stones and fruit at his walls and attempting to break into his house .

On DATE the trial court upheld a claim by the first applicant for disturbance of possession ( нарушено владеење ) . It ordered H. to reconstruct the part of the wall he had demolished and refrain from further disturbance of the first applicant ’s enjoyment of his property . As stated in the judgment , PERSON neither appeared before the court nor contested the first applicant ’s claim . The court found that the first applicant had reported the incident to the police on CARDINAL occasions . On DATE the judgment became final .

On DATE in enforcement of the above judgment , H. reconstructed the wall . The wall was again demolished the same day by Sh . PERSON H. ’s brother ) . Sh . H. was convicted of violent behaviour ( насилство , see paragraph CARDINAL below ) over the incident and sentenced to DATE and CARDINAL months’ imprisonment , suspended for DATE ( trial court judgment of CARDINAL DATE ) .

On DATE the first applicant lodged a fresh application , seeking to have a private bailiff order PERSON to reconstruct the wall ( see paragraph CARDINAL below ) . On DATE he asked the bailiff to issue a fine against H. , arguing that H. had again come onto his land . It appears that those requests remained undecided .

On DATE the first applicant initiated criminal proceedings against PERSON and CARDINAL others for a breach of the inviolability of the home ( нарушување на неповредливоста на домот ) . He complained that DATE and DATE had trespassed on his property . On DATE he made a claim for compensation for damage .

On several occasions during the trial the first applicant alerted the trial court to the fact that H. had again demolished the wall , had repeatedly trespassed on his property , sounded his car horn , instructed others to throw objects at the first applicant ’s house , and had threatened and even fired at him with an automatic gun .

On DATE the trial court found PERSON guilty and sentenced him to CARDINAL months’ imprisonment , suspended for DATE . The court noted that ORG had no criminal record . The court held that he had repeatedly gone onto the first applicant ’s land , which was part of his home . In establishing the facts , it relied , inter alia , on the judgment in the proceedings referred to above , DATE ( see paragraphs CARDINAL ) . Lastly , it advised the first applicant , in accordance with section CARDINAL of LAW , to pursue his compensation claim by means of a separate civil action for damages as he had not provided enough evidence to substantiate it .

The first applicant appealed , arguing that PERSON had already been convicted in earlier proceedings ( see paragraphs CARDINAL - CARDINAL above ) . He requested that the court accordingly impose a more severe penalty . On DATE the appellate court upheld the trial court ’s judgment , finding no grounds to depart from the established facts and reasons provided .

On DATE the first and second applicants lodged a criminal complaint against ORG for breach of the inviolability of the home , alleging that on DATE and on other occasions ORG had again unlawfully gone onto the first applicant ’s land and trespassed in his yard .

At the trial , PERSON stated that the applicants had objected to him using the road , which in his opinion was a public thoroughfare , because they considered it part of their property . He further stated that there was another road to his house , which he did not use . The court admitted in evidence a decision of DATE in which the competent administrative authorities had ordered the wall to be demolished because it had been constructed unlawfully .

On DATE the trial court convicted PERSON and sentenced him to DATE imprisonment , suspended for DATE . It further reprimanded him ( судска опомена ) for using insulting language to the second applicant in reply to the criminal complaint . The court relied on the final judgments in the previous proceedings against PERSON ( see paragraphs CARDINAL - CARDINAL and CARDINAL - CARDINAL above ) and took his previous convictions into consideration in determining the penalty . Lastly , it instructed the applicants to pursue their compensation claim by means of a separate civil action for damages .

The applicants appealed , arguing , inter alia , that the penalty that had been imposed would not fulfil the aims of punishment . On DATE the appellate court dismissed the appeal , finding that the penalty would deter PERSON from reoffending .

The first applicant lodged a criminal complaint against a police officer who had carried out an on - site inspection related to the incident of DATE , but it was rejected by the public prosecutor . The latter found , inter alia , that the incident concerned a dispute between neighbours over their land .

On DATE the applicants informed the police that despite the judgment of DATE ( see paragraph CARDINAL above ) , PERSON had repeatedly entered the first applicant ’s property and had incited some children to throw stones at their house .

On several occasions DATE and DATE , the applicants reported PERSON to the police for uttering insults , entering and damaging their property or threatening to kill them .

In DATE the applicants initiated another set of criminal proceedings against H. on account of a breach of the inviolability of the home . It appears that the proceedings are still pending .

Under LAW of LAW , in determining the sentence of a person with previous convictions , the court will specifically consider whether the previous conviction was related to a similar offence as the new one , whether the offences were committed with the same motive , and what period of time has elapsed from the previous conviction or sentence , whether served or pardoned .

Under LAW , a suspended sentence ( условна осуда ) means the court will impose a sentence and decide that it will not be enforced if the convicted person does not reoffend within a period determined by the court , which can not be DATE or CARDINAL ( “ the control period ” ) . A suspended sentence may also entail the court determining that the sentence will be enforced if the convicted person does not return the proceeds of a crime , does not pay compensation for damage , or does not fulfill other obligations .

Under LAW the court shall revoke a suspended sentence during the control period if the convicted person commits CARDINAL or more offences for which he or she is sentenced to imprisonment of DATE or longer . Under LAW , in cases of a less serious offence , the court assesses all the circumstances concerning the offences and the offender , especially the relation between the offences , their significance and the motives for them , and decides whether or not to revoke the suspended sentence . The court can not impose a suspended prison sentence if the offender is to be sentenced to DATE imprisonment for the initial and the new offences . Under LAW if the court does not revoke the suspended sentence it can pass another suspended sentence for the new offence . If the court finds that it should issue a suspended sentence for the new crime , it must determine a single sentence for the initial and new offence and a new control period . That period can not be DATE or CARDINAL .

Under LAW , a suspended sentence may be revoked during the control period . If the convicted person commits an offence during that period which calls for the suspended sentence to be revoked and which was imposed by a final judgment after the expiry of the control period , the suspended sentence may be revoked within DATE of expiry of the control period . Under LAW if the convicted person does not fulfill some of the obligations referred to in DATE , the court may decide , within DATE of the expiry of the control period , that the suspended sentence should be enforced .

Under LAW , any person who enters without authorisation another person ’s home , a closed or fenced area belonging to that home , or private business LOC designated as such , or does not leave such an area at the request of an authorised person , can be fined or imprisoned for DATE .

Under LAW , anyone who ill - treats or grossly insults another person , or threatens his safety or performs an act of gross violence against him and thereby causes a feeling of insecurity , threat or fear in the rest of the general public , can be imprisoned for DATE .

Under LAW , anyone who wilfully ( самовласно ) appropriates for himself a right or a right that he considers to be his own , can be fined or imprisoned for DATE .

Chapter CARDINAL of LAW DATE regulated pecuniary claims ( имотно-правни барања ) lodged in criminal proceedings . Under section CARDINAL ( renumbered to section CARDINAL with the DATE consolidated text of the LAW , Official Gazette no . PERSON ) a compensation claim relating to a criminal offence was to be decided in criminal proceedings , unless it significantly delayed those proceedings .

Under section CARDINAL ( section CARDINAL of the consolidated text ) , the court could question the accused about the grounds of the compensation claim . If a decision on the compensation claim would significantly delay the proceedings , the court confined itself to gathering evidence which would be impossible or very difficult to gather at a later stage .

Section CARDINAL ( section CARDINAL of the consolidated text ) provided that if the court found the accused guilty , it could fully or partially decide the compensation claim . If the evidence in the criminal proceedings did not provide a sufficient basis for a decision on the compensation claim , and there was a danger that the criminal proceedings would be prolonged unjustifiably in order to obtain such evidence , the court could decide solely on the existence of the grounds for compensation , or on the grounds and partially on the compensation claim , and adopt a supplementary judgment ( дополнителна пресуда ) for the rest of the claim . If the amount of compensation could not be determined on the basis of other evidence or if obtaining such evidence would lead to significant delays in the proceedings , the court could decide on the compensation claim by awarding just satisfaction ( правичен надоместок ) .

If the accused was acquitted , the indictment was rejected , or the proceedings were discontinued , the court was to instruct the victim to pursue his or her compensation claim in civil proceedings ( section ORG ) ) .

Under section CARDINAL(CARDINAL ) ( section CARDINAL(CARDINAL ) of the consolidated text ) , if a suspended prison sentence required the convicted person to return the proceeds of the crime , provide damages or fulfill other duties but which he failed to do , the trial court could revoke the suspended prison sentence on the proposal of an authorised plaintiff ( овластен тужител ) or of its own motion . If the court found that the obligations had not been fulfilled , it could issue a judgment prolonging the period for fulfilment , releasing the convicted person from fulfilment or replacing that duty with another one . It could also revoke the suspended sentence or decide that the suspended prison sentence be executed ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL of LAW provides that if after an enforcement title ( извршна исправа ) concerning disturbance of possession ( смеќавање на посед ) has been enforced the respondent again disturbs the possession in the same manner , a private bailiff can order a return to the status quo ante on the basis of the same enforcement title .

Under section ORG ) a court in civil proceedings is bound by a criminal court ’s final decision in respect of the existence of the offence and the criminal liability of the offender .

The Government submitted a copy of CARDINAL judgments in which the courts granted a request by victims of a crime for the revocation of a suspended prison term after the offender failed to pay compensation or fulfil other obligations ( the payment of maintenance ) .


Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

The applicant was born in DATE and lives in GPE , GPE .

On DATE PERSON was arrested and taken to a police station . Allegedly , police officers threatened him with murder and ill - treatment if he refused to make a confession . In the presence of counsel , he made a written statement confessing to a murder . On DATE an investigator compiled an arrest record .

On DATE another investigator issued a formal decision confirming that PERSON ’s real name was PERSON , the applicant in the present case before the ORG .

On DATE ORG of PERSON ( “ the ORG ” ) convicted the applicant of murder and sentenced him to CARDINAL years’ imprisonment . On DATE ORG ( “ the Regional Court ” ) upheld the judgment .

In the meantime , on DATE the applicant had tested positive for HIV .

According to the applicant , on DATE ( see below ) he learnt that in DATE or DATE PERSON , a deputy district prosecutor , had given PERSON , the sister of the murder victim , access to the file concerning the criminal charges against the applicant .

At a hearing on DATE the trial court granted PERSON victim status in the criminal case ( see paragraph CARDINAL below ) . At the same time , the trial court allowed a decision granting PERSON victim status to be added to the file ( a decision apparently taken in DATE by an unspecified authority during the criminal investigation – however , see paragraphs CARDINAL below ) . PERSON was cross - examined at that hearing . She stated that she had had access to the file and had then told NORP , the applicant ’s relative , about his HIV status to prove that the applicant was not a good person . According to the applicant , PERSON also disclosed his HIV status to some other neighbours .

DATE the applicant unsuccessfully sought the institution of criminal proceedings against PERSON for the disclosure of private information , which was an offence under LAW ( see paragraph CARDINAL below ) . It appears that the applicant also sought the institution of criminal proceedings against PERSON in relation to the disclosure of private information involving the use of an official position and abuse of power ( LAW and LAW ; see also paragraph CARDINAL below ) .

A pre - investigation inquiry was carried out for the offence allegedly committed by PERSON

NORP In DATE Z. , the deputy district prosecutor , wrote to the applicant indicating that PERSON had not been granted victim status , and that the investigator in charge of the case had not provided her with access to the file during the preliminary investigation .

NORP In DATE the regional prosecutor ’s office informed the applicant that PERSON had been granted victim status and had studied the case file in DATE , she had not applied for victim status before that time , and there were no grounds for any pre - investigation inquiry in respect of PERSON It is unclear whether the applicant took any further action as regards his criminal complaint against Z.

As a result of the inquiry in respect of PERSON , a refusal to institute criminal proceedings was issued . It was then overruled . Further refusals to prosecute were issued on DATE and CARDINAL DATE and on DATE .

On DATE ORG refused to carry out judicial review of the refusal dated DATE . ORG then considered that the applicant was entitled to judicial review and ordered ORG to re - examine the issue . In the resumed proceedings , on CARDINAL DATE ORG noted that the applicant no longer wished to pursue the judicial complaint , and discontinued it .

In the meantime , on DATE an investigator had issued a new refusal to prosecute with reference to the expiry of the DATE timelimit for prosecution of an offence under LAW . The investigator heard NORP , who confirmed that PERSON had briefly mentioned the applicant ’s HIV status . The investigator ’s decision indicates that he considered the disclosure of the applicant ’s medical data an established fact .

On DATE ORG confirmed the refusal to prosecute dated DATE . The judge noted ( apparently with reference to DATE ) that for some time the institution of criminal proceedings had been refused because “ at the time no written statement could be obtained from [ the applicant ] in relation to his complaint ” . This had prompted the supervising prosecutor to set aside , among other things , the refusals to prosecute dated DATE and CARDINAL DATE and DATE . The prosecutor had acted promptly by taking decisions on DATE and DATE and on DATE . Following each decision , law - enforcement officers had taken measures to interview the applicant ( apparently by asking staff at his remand centre to interview him ) , but “ no statement had been received from him ” .

On DATE ORG upheld the judgment of CARDINAL DATE . The appeal court stated that , while the fact of the dissemination of the applicant ’s medical data by PERSON had been established , she could not be prosecuted , owing to the expiry of the time - limit for prosecution . However , those grounds for discontinuing the case were , in a way , in the applicant ’s interest , and it remained open to him to bring civil proceedings against her .

In DATE the applicant brought civil court proceedings against PERSON , seeking compensation for non - pecuniary damage on account of the disclosure of his HIV status to other people . On DATE ORG discontinued the case because the respondent was a foreign national not residing in GPE . Apparently , the applicant did not appeal .

The applicant also lodged a claim under LAW . A judge rejected it , noting that the LAW did not give standing to a criminal complainant with no “ victim ” status seeking compensation on account of the length of a pre - investigation inquiry . Apparently , the applicant did not appeal .

The applicant provided the following account of his conditions of detention .

DATE and DATE the applicant was kept in FAC no . CARDINAL . After his arrival he was placed in cell no . CARDINAL , which measured QUANTITY and accommodated CARDINAL people . This cell had no window , and the temperature in the cell was around CARDINAL There was no bed or bedding . The toilet did not work and was not separated from the main area .

On DATE the applicant was transferred to cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds , but which actually accommodated CARDINAL people . The toilet was not separated from the main area .

From DATE the applicant was in cell no . CARDINAL , which measured CARDINAL or QUANTITY and accommodated CARDINAL detainees ( or CARDINAL people , according to the applicant ’s amended description ) .

From DATE to CARDINAL DATE the applicant was kept in cell no . CARDINAL , which measured QUANTITY and had CARDINAL beds , but accommodated CARDINAL to QUANTITY people .

From DATE to DATE the applicant was in hospital . It appears that the material conditions of his stay there were acceptable . However , between CARDINAL May and DATE he was allegedly ill - treated by medical assistants ( also people who had been convicted ) who , at the instigation of police officers , tried to extract a confession from him .

After being returned to the remand centre , the applicant was placed in cell no . CARDINAL , which measured QUANTITY and accommodated up to CARDINAL people , despite having CARDINAL beds .

From DATE the applicant was in cell no . CARDINAL , which measured QUANTITY and accommodated CARDINAL detainees .

Furthermore , the applicant provided a detailed account of the conditions of his detention DATE , conditions which were also cramped or unacceptable and where , at times , he was not able to have an individual bed .

DATE the applicant lodged numerous complaints in relation to his conditions of detention . For instance , on DATE ORG of GPE dismissed CARDINAL of his complaints , whilst indicating that the actual number of detainees in the remand centre exceeded the design capacity of this detention facility . By a letter of CARDINAL DATE the administration of the remand centre informed the applicant that the actual capacity of cells was such as to afford each detainee QUANTITY of space , which was a temporary measure related to the overpopulation problem .

By a letter of DATE the GPE prosecutor ’s office supervising prisons confirmed that the applicant had been afforded between QUANTITY of cell space .

By a letter of DATE the prosecutor ’s office of GPE informed the applicant that , following an inspection , it could be not confirmed that the cell toilets were not separated from the main area .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention .


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 the applicant was appointed as deputy general manager of a ORG - owned company limited by shares .

The applicant ’s employment was terminated by mutual agreement as of CARDINAL DATE . Under this agreement the applicant received severance payment , subject to payroll burdens .

Under new legislation ( see paragraph CARDINAL below ) the severance payment was subsequently taxed at a PERCENT rate in its part exceeding MONEY ( ORG ) ; the income tax and social security contributions already paid ( see paragraph CARDINAL above ) were deducted from the tax payable . Thus , the applicant paid an additional ORG CARDINAL,CARDINAL,CARDINAL ( approximately FAC euros ( ORG ) ) in special tax on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants were both targeted in undercover operations designed to investigate bribe - taking launched by the police under sections CARDINAL and CARDINAL of the Operational - Search Activities Act of CARDINAL DATE ( no . CARDINAL-FZ ) .

The facts of each individual criminal case , as submitted by the parties , are summarised below . The factual details of the undercover operations are not in dispute and the applicants admitted that they had received the money in return for promises to render certain services . However , the applicants contested the ORG ’s position as to the reasons for the undercover operations and the circumstances leading to them . In particular , they contended that they had accepted the money only because the police had incited them to do so , and they would not have done it under any other circumstances .

The applicant was born in DATE and lives in PERSON , in GPE . At the time of her arrest , she was working as a dermatologistvenerologist in the outpatient unit of the municipal hospital in PERSON .

According to the ORG , the police in PERSON received confidential operational information implicating the applicant in the illegal acceptance of money for issuing and extending false sick - leave certificates . On DATE it was decided to conduct an undercover operation targeting the applicant , with the aim of documenting her illegal activity . The police proposed PERSON to participate in the operation as their agent .

According to the applicant , she had not been implicated in any bribetaking prior to the operation and the police had had no grounds to suspect her . On DATE her colleague and former fellow classmate from medical school , X , had come to her office while she was seeing patients . He had been accompanied by a young woman , PERSON He had asked the applicant to provide PERSON with a sick - leave certificate as she had herpes on her leg . The applicant had examined the woman , confirmed the diagnosis , prescribed treatment and issued the sick - leave certificate . The applicant thought that she had PERSON as the mother of a girl she had treated on a previous occasion . On DATE PERSON had come to the applicant ’s office by herself and the applicant had agreed to extend her sick - leave as her condition had not yet been cured . PERSON had been given the certificate and had handed MONEY ( RUB – QUANTITY ( EUR ) ) to the applicant . The applicant had taken the money as she thought that PERSON was offering it as a token of appreciation for having successfully treated her daughter previously . Immediately after PERSON had left , the police had entered the applicant ’s office and asked her and the nurses who were present to show them all the money in their possession . The applicant had taken out her wallet and while the police were searching the office she had remembered about the money that PERSON had given her . She had become frightened and had moved the money from the pocket of her uniform into her left boot , where the police eventually discovered it .

On CARDINAL DATE the NORP ORG of GPE examined the applicant ’s case . The applicant admitted that she had taken the money because she had thought of it as a gift from a grateful patient . She maintained that the police had incited her to accept the money . In particular , they had sent their agent to her office together with a colleague of hers whom she had known well since their student DATE in medical school and at whose request she had issued the sick - leave certificate to PERSON

PERSON testified at the trial that on DATE she had agreed to help the police conduct an undercover operation investigating bribetaking . She had telephoned her acquaintance X and told him that she needed a sick - leave certificate to justify her stay at home while she redecorated her flat . X had agreed to help her and she had come to the hospital outpatient unit with him DATE . She had had with her RUB CARDINAL ( EUR CARDINAL ) in cash and a recording device given to her earlier by the police . She had given X RUB CARDINAL ( EUR CARDINAL ) for his intermediary services and also RUB CARDINAL ( EUR CARDINAL ) to pay the applicant , who did not examine her at the time but nevertheless issued the sick - leave certificate . On DATE she had returned to the applicant ’s office . The applicant had not examined her but had extended her sick - leave certificate for RUB CARDINAL ( EUR CARDINAL ) which the applicant had placed in the pocket of her uniform .

X testified that PERSON had repeatedly called him requesting the false sick - leave certificate . He had agreed to help her and had received RUB CARDINAL ( LAW ) from her . He had called several doctors but they had refused to help and he had decided to ask the applicant to issue the certificate . On DATE he had come to the applicant ’s office and she had handed him the certificate for PERSON for RUB CARDINAL ( EUR CARDINAL ) without actually examining PERSON

The police officer in charge of the undercover operation also testified at the trial . In particular , he stated that following the receipt of confidential information implicating the applicant in bribe - taking , an undercover operation had been launched to verify and to document the applicant ’s unlawful activity .

On CARDINAL DATE the NORP ORG of the Penza Region granted the prosecutor ’s request to drop the charges against the applicant in relation to the episode of QUANTITY DATE for lack of evidence . It found the applicant guilty of bribery committed on DATE and imposed a suspended sentence of DATE in prison with CARDINAL years’ probation .

On DATE ORG examined the applicant ’s case on appeal and upheld the conviction . The court dismissed the plea of entrapment and held that the police had had good reason to conduct the undercover operation as they were in possession of incriminating information against the applicant which revealed a preexisting intent to commit bribery .

The applicant was born in DATE and lives in GPE , in LOC . At the time of his arrest , he worked as a narcology psychiatrist at a regional narcology centre .

The Government submitted that in DATE the police had received information which had implicated the applicant and other staff members at the regional narcology centre in the issuance of false forensic medical examination reports in return for monetary consideration . On DATE the police decided to conduct an undercover operation in order to expose and document the applicant ’s unlawful acts . CARDINAL of the police officers , PERSON , was chosen to participate in the undercover operation and to bribe the applicant into altering the results of PERSON blood test and issuing a false forensic medical report .

The applicant contested the ORG ’s allegations . In particular , he claimed that the incriminating information had been ambiguous and had referred to medical personnel at the local narcology centre in general . It did not specifically identify him as an individual who was taking bribes . Moreover , the police were not in possession of any complaints from persons allegedly aggrieved by his unlawful acts .

The applicant further maintained that on DATE , when he started his shift at the regional narcology centre , traffic police officers had brought PERSON to his office for a blood alcohol test . The applicant had conducted preliminary tests that had shown that PERSON was under the influence of alcohol . Mr Y. acknowledged that he had drunk some alcohol DATE . Meanwhile , the officer who had accompanied PERSON had stepped out of the room and PERSON had repeatedly asked the applicant to help him obtain a favourable blood test result as he feared that the alcohol level in his blood would exceed the legal limit and he would have his driving licence revoked . The applicant had categorically refused at first and had sent the applicant to a laboratory for a blood test in the presence of police officers . Mr Y. had then returned to the applicant ’s office and resumed his requests for help . He had offered to pay the applicant and had stated that his earnings and ability to support his family depended on his having a driving licence . On DATE the applicant had again seen Mr Y. in his office , where he had repeated his requests . The applicant had then agreed to try talking to the laboratory staff and speculated that Mr Y. would need to pay RUB CARDINAL ( ORG CARDINAL ) or CARDINAL ( EUR CARDINAL ) to the laboratory technician . However , the nurse working in the applicant ’s office had commented that at least RUB CARDINAL ( EUR CARDINAL ) would be needed , as the laboratory technician would not accept less . Mr Y. had then paid the applicant RUB CARDINAL . The applicant had used RUB MONEY ( EUR CARDINAL ) to pay the laboratory technician to alter the results of PERSON blood test and had paid RUB CARDINAL ( ORG CARDINAL ) to the nurse to ensure her confidentiality . On DATE the applicant had received a further RUB CARDINAL ( EUR CARDINAL ) from Mr Y. and they had agreed on MONEY ( EUR CARDINAL ) to be paid at DATE . Immediately afterwards , the police had entered the applicant ’s office , charged him with abetting bribery and arrested him on the spot .

On DATE the ORG of Cheboksary examined the applicant ’s case . The applicant testified that he had at first refused to help PERSON with his request . He conceded that he had taken the money from Mr Y. but only because PERSON had described his difficult personal situation and had strongly urged and incited the applicant to help him .

Mr Y. testified that on DATE he had consumed QUANTITY of vodka in the presence of the police officers who were to participate in the undercover operation . He did not know the name of the applicant at the time . Following some documentary formalities , they all proceeded to the local narcology centre , where the applicant had first established that he tested positive for alcohol . When he and the applicant were alone , he had asked the applicant to tamper with the results of his blood test to prevent him losing his driving licence . The applicant had refused and had sent him off to the laboratory for a blood sample . He had then urged the applicant to help him out once again , had offered him money , and the applicant had at last agreed . On DATE he had met the applicant in his office . The applicant had told him that he needed to pay RUB CARDINAL ( ORG CARDINAL ) or CARDINAL ( EUR CARDINAL ) to the laboratory technician . However , PERSON had given RUB CARDINAL ( EUR CARDINAL ) to the applicant as the nurse in the applicant ’s office had commented that the technician would not take less than that . The applicant had later informed him that the technician would modify the test results accordingly . On DATE he had paid RUB CARDINAL ( EUR CARDINAL ) to the applicant in addition to the money given earlier and had agreed to pay a further RUB CARDINAL ( EUR CARDINAL ) later , at the applicant ’s request .

The police officer responsible for the undercover operation testified that in DATE the police had received information implicating the applicant and other staff members at the regional narcology centre in bribetaking . In DATE an undercover operation had been planned and launched with the participation of CARDINAL of the police officers , PERSON In the course of the operation , the applicant had agreed to tamper with the results of a forensic medical test in return for financial remuneration from PERSON The undercover operation had been both audio - recorded and videotaped and a body search of the applicant at the end of the operation had revealed that he had marked banknotes on his person .

On CARDINAL DATE ORG convicted the applicant of abetting bribery and sentenced him to imprisonment for DATE and DATE and to a DATE ban on federal and municipal employment . The court dismissed the applicant ’s plea of entrapment in its entirety as it found that the police had conducted the undercover operation in a lawful manner . The applicant appealed , pleading police incitement to commit the offence of which he was convicted .

On DATE ORG found the applicant ’s entrapment claim unsubstantiated and upheld his conviction on appeal .


Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s son , PERSON , fell off a crane while fixing electric cables . He was admitted to the intensive care unit of ORG the hospital ” ) . His injuries included a fractured skull and brain damage .

On DATE doctors observed that PERSON had gastrointestinal bleeding and he was given the relevant treatment . On DATE he was transferred to a general medical ward as there had been an improvement in his condition .

On DATE PERSON ’s state of health deteriorated and he was transferred back to the intensive care unit because of a bleeding duodenal ulcer . Urgent surgery was performed on DATE to stop the bleeding , but he died on DATE .

It appears from the criminal case files that the applicant refused to allow an autopsy of PERSON ’s body .

On DATE the hospital informed the GPE police that PERSON had been admitted with traumatic injuries . An investigator visited the hospital but was unable to question him in view of his state of health .

On DATE the investigator returned to the hospital to enquire about the incident of DATE ( see paragraph CARDINAL above ) and was informed that the applicant ’s son had died . An investigation was launched into PERSON ’s death and the applicant was questioned DATE .

On DATE the investigator ordered an examination by a panel of experts of ORG under ORG ( “ the forensic bureau ” ) of GPE ( “ AAR ” ) in order to determine the exact cause of PERSON ’s death . The examination was carried out DATE and DATE . The report that followed ( “ report no . CARDINAL-k ” or “ the first report ” ) stated as follows :

“ CARDINAL . As ... no autopsy was performed upon [ G.B. ’s ] death , the exact cause of his death is unknown to the ... panel [ even though ] the [ related ] medical records indicate abdominal bleeding ...

We consider that a medical error was committed with respect to PERSON ’s treatment in terms of the timing of the surgery , which was caused by an incorrect assessment of the clinical , endoscopy and laboratory data . ”

On DATE a criminal medical negligence case was opened against the relevant doctors of the hospital , in which the applicant was granted victim status .

The experts of the forensic bureau who had participated in the panel examination ( see paragraph CARDINAL above ) were questioned as part of the investigation . The majority confirmed the earlier findings , stating that the therapeutic treatment had been adequate , but an assessment of the delay in surgery was the exclusive competence of a surgeon on the panel . The latter reiterated the findings of the report that the surgery had been delayed in view of several previously registered relapses of bleeding . He added however that this might not have made any difference to the fatal outcome .

The head of the expert panel further stated that a conclusive finding on the exact cause of death could not be reached without a forensic examination of the body .

On DATE , relying on the findings of the expert panel , a prosecutor applied to the first - instance court for permission to exhume PERSON ’s body in order to determine the exact cause of his death . The request was granted on DATE .

On DATE the applicant refused to allow the exhumation despite being warned of its importance for the case .

On DATE the case was closed as the prosecuting authority was unable to establish a causal link between the alleged medical negligence and ORG ’s death without an exhumation of his body .

On DATE , relying on the findings of the panel of experts in report no . CARDINAL-k ( see paragraph CARDINAL above ) the GPE prosecutor wrote to ORG of the ORG . He noted that despite the closure of the investigation , the family ’s resistance to allow an exhumation of the body to determine the precise cause of death , and the inability to establish criminal responsibility on the part of the doctors in question , the conclusion of the panel of experts that a medical error had been committed in the course of ORG treatment called for “ the implementation of adequate measures to prevent similar violations . ”

On DATE , referring to the findings of the prosecutor and the panel of experts in report no . CARDINAL-k concerning the medical error committed in the course of ORG treatment , the director of the hospital dismissed the neurosurgeon who had been in charge of ORG treatment ( მკურნალი ექიმი ) and reprimanded CARDINAL intensive care specialists and a surgeon .

On various dates the applicant asked for the investigation to be reopened .

On DATE the prosecutor ’s office granted the applicant ’s request and reopened the investigation under LAW of LAW ( the offence of abandoning a patient in distress , see paragraph CARDINAL below ) .

Several witnesses were questioned , including the then director and deputy director of the hospital , who had considered the family ’s resistance as grounds for not carrying out an autopsy upon PERSON ’s death .

On DATE the investigator obtained a second exhumation order from the court in order to determine the exact cause of PERSON ’s death . The applicant once again refused to allow implementation .

On DATE the prosecutor terminated the case as there was no proof causally linking the medical error with PERSON ’s death . It does not appear that the applicant appealed against that decision , despite it being amenable to appeal within DATE of service upon the parties .

On an unspecified date the applicant lodged a claim with ORG against the hospital , its medical staff and ORG of the ORG . She argued that her son ’s death had been caused by medical negligence , namely incorrect and delayed treatment of his gastroduodenal bleeding .

DATE , at the request of ORG , ORG of ORG ( “ the inspectorate ” ) implemented an inspection of the hospital in connection with PERSON ’s death , which was carried out by a panel of experts . They reached the following conclusions ( “ the second report ” ) :

“ The institution is carrying out medical practice without a licence in the following fields : cardiology , plastic and reconstructive surgery , proctology , urology , paediatrics , epidemiology , clinical transfusion and expert assessments of temporary incapacitation .

In relation to patient PERSON , non - licensed activity was carried out in the following fields : cardiology and clinical transfusion .

Out of the CARDINAL doctors who took part in patient ORG treatment , the invited specialists ... in endoscopy and ophthalmology do not hold a licence to practise medicine . A neurosurgeon ( currently dismissed from the post ) and an intensive care specialist are practising medicine independently despite being ... junior doctors . The doctor ... working as a transfusion specialist is a certified paediatrician ...

... [ I]t is evident that the surgery , the sole purpose of which was to definitively determine the cause of bleeding and stop it , was carried out too late . It is difficult to determine whether the scope of the surgery was adequate , as it is impossible to determine the exact location of the ulcer ( there is no forensic pathology examination report concerning the body and the CARDINAL endoscopy specialists reached different conclusions concerning the ulcer ’s location ) .

It is also worth mentioning that a pathomorphological analysis of the material obtained during the surgery was not carried out ... ”

An undated study of the relevant medical files , ordered by the inspectorate from a professor of surgery at the Tbilisi State Medical University ( “ the third report ” ) noted the difficulty of making categorical claims in the absence of an autopsy of the body . It nevertheless pointed to a lack of adequate supervision by a surgeon , despite the relapses of abdominal bleeding , inadequacies in the choice of treatment , and a lack of appropriate diagnostic measures for the timely detection and possibly even aversion of the otherwise risky surgery . Stressing that it was conventional treatment methods that had been insufficiently explored , the report continued to note that it would be incorrect to make a categorical assertion , such as in the first report , as regards the medical error in relation to the delay in the otherwise high - risk surgery .

On an unspecified date CARDINAL experts of the forensic bureau gave statements to the court and confirmed the findings of the first report that a medical error had been committed in terms of the delay in surgery . They further indicated that the cause of PERSON ’s death , according to the medical records , was gastroduodenal bleeding which could have been averted by timely and adequate medical treatment .

On DATE , relying on the expert reports and the medical documentation available in the case files , ORG ruled in favour of the applicant . It concluded that the doctors of the hospital had been responsible for a medical error resulting in the patient ’s death . It further noted that the participation in the patient ’s treatment of doctors not holding the appropriate medical licences reinforced the conclusion that he had not been offered adequate medical care . The court took the decision of the hospital director of DATE dismissing the neurosurgeon in charge of ORG ’s treatment and reprimanding CARDINAL intensive care specialists and a surgeon ( see paragraph CARDINAL above ) as acknowledgment that medical negligence had been committed in the course of ORG treatment .

The applicant was awarded CARDINAL NORP laris ( GEL , PERCENT ( ORG ) ) in respect of pecuniary damage . Relying on section CARDINAL of LAW ( see paragraph CARDINAL below ) the court also awarded non - pecuniary damages in the amount of GEL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . As the contract concerning ORG treatment had only been concluded with the hospital , the latter was found to be the only appropriate respondent and was accordingly ordered to pay the corresponding amount . Both the applicant and the hospital appealed , disagreeing with the court ’s assessment of the facts and the scope of the award .

On DATE ORG upheld the lower court ’s reasoning . It noted as follows :

“ Based on an analysis of the evidence before it , the appellate court concludes that in the course of PERSON treatment in [ the hospital ] the medical negligence of the medical staff ( insufficient attention towards the patient , misdiagnosis ) caused harm to a person ’s health and eventually caused the patient ’s ... death . ”

The appellate court continued to note that :

“ In addition to establishing that harm was caused to a person ’s health as a result of the medical negligence of the [ hospital ] staff , it can also be established from the case files that [ the hospital ] was carrying out unlicensed activities in a number of medical fields and at the same time some of the medical staff did not have authorisation to practise medicine independently , in violation of the requirements of the [ relevant legislation ] ... ”

ORG of Appeal further found the hospital to be the only appropriate respondent to pay the damages in respect of the medical negligence of the doctors . As regards who should be held responsible for the hospital and its doctors operating without the necessary licences , it was noted that :

“ ORG of the ORG can not be held responsible in the present case ... for [ the hospital ] operating in certain medical fields without the requisite licences considering that , in accordance with LAW , the issuance of such licences is [ the exclusive competence ] of ORG of GPE .

Accordingly , the claim for ... pecuniary and non - pecuniary damages with respect to ORG of the ORG is groundless . ”

The appellate court upheld the lower court ’s award of nonpecuniary damages and increased the amount of pecuniary damages to GEL MONEY ( approximately EUR CARDINAL,CARDINAL ) .

Both parties appealed , disagreeing with the court ’s assessment of the facts and the scope of the award .

On DATE ORG adopted a decision without holding an oral hearing . Referring to the evidence available in the case files , the court found that despite the fact that the exact cause of death could not be determined without an exhumation of the body , the case files confirmed that gastroduodenal bleeding was the cause of death and that a medical error had been committed in terms of the surgery and an incorrect assessment of the various data .

ORG further upheld the lower courts’ findings that the hospital had been carrying out unlicensed medical activities and noted as follows :

“ It is confirmed ... that [ the hospital ] was carrying out unlicensed medical activities in the following fields : cardiology , plastic and reconstructive surgery , proctology , urology , paediatrics , epidemiology , clinical transfusion and expert assessments of temporary incapacitation . Unlicensed medical activities performed in respect of PERSON were in the following fields : cardiology and clinical transfusion . Of the medical staff invited to treat ... PERSON ... the endoscopy specialist and ... an ophthalmologist did not have a certificate [ authorising them ] to practise medicine . [ Those ] appointed as junior doctors ... the neurosurgeon ( currently dismissed ) and ... the intensive care specialist were practising medicine independently . The doctor ... certified as a paediatrician was working as a transfusion specialist . ORG upholds the views of the appellate court that this gave rise to a violation of ... LAW and ... LAW . ”

ORG noted that ORG of GPE was the entity responsible for issuing licences to medical institutions and that the applicable legislation did now allow medical institutions and individual doctors to practise medicine without requisite licences ( see paragraphs CARDINAL below ) . It did not elaborate on whether responsibility could be attributed to the respondent ORG of the ORG .

The award of pecuniary damages in the amount of GEL CARDINAL ( approximately EUR CARDINAL,CARDINAL ) was upheld .

As regards the question of non - pecuniary damages , ORG found that domestic law did not entitle the applicant to receive an award for non - pecuniary damage for the death of her son . In particular , it observed as follows :

“ Under LAW , harm caused to a person ’s health during his or her treatment at a medical institution ( a result of surgery or misdiagnosis etc . ) shall be compensated on a general basis . In accordance with LAW , monetary compensation for non - pecuniary damage may be requested only in the cases expressly provided for by law , in the form of reasonable and fair compensation . LAW does not define moral ( non - pecuniary ) damage ... Under LAW , not all types of moral harm ( mental suffering ) shall be compensated , even if there is no doubt as to its existence , only those for which compensation is expressly provided for by law ... Accordingly , in accordance with the practice of ORG of GPE , non - pecuniary damage resulting from the infringement of the right to life of a person ’s husband , child or other relative shall not be compensated as it is not expressly provided for by law ... ”

ORG disagreed with the lower court ’s interpretation that the right to claim non - pecuniary damages under section CARDINAL(a ) of LAW also applied to the death of a relative , and noted that that right was strictly personal . ORG therefore rejected the applicant ’s claim for non - pecuniary damages , noting that :

“ It is undisputed that a parent is subjected to moral pain as a result of the death of a young child , but it shall not be compensated considering that it is not expressly provided for by the law in force . ”