Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

In DATE a series of thefts from individual garages was committed in LOC of the GPE region . The LOC police department ( ORG по PERSON ) initiated a criminal investigation into the thefts .

During TIME police officers NORP and PERSON from the LOC police department were patrolling an area of GPE in which there was a garage cooperative where some of the thefts had been committed . At TIME they stopped the applicant , who had entered one of the garages .

According to the applicant , that TIME he had gone to GPE searching for abandoned scrap metal which he could then sell . He entered a garage , the door of which was allegedly open . He was then stopped by QUANTITY police officers , who asked him to accompany them to a police station to check his identification documents . He explained that he had the documents with him and suggested that they check them right away . They insisted that he should go with them to the police station and he obeyed .

According to the reports of police officers PERSON and PERSON to the head of the LOC police department of DATE and their statements as witnesses to an investigator in the garage - thefts case of CARDINAL DATE , they were patrolling the garage cooperatives on the outskirts of GPE in order to detect persons involved in the garage thefts that had been committed previously . They heard metallic sounds and saw the applicant , who had opened and entered CARDINAL of the garages . They apprehended him and took him to the GPE police station in order to check his identity and to establish whether he had been involved in the garage thefts . The applicant refused to accompany them to the police station , “ swinging his arms ” and trying to escape . Therefore they “ used physical force ” and handcuffs , in accordance with LAW CARDINAL of LAW . At the GPE police station his identity was established and he was found to be in possession of homemade lock - picking tools .

According to the search record drawn up at the GPE police station , the police seized , in particular , QUANTITY metal items made of screws which the applicant had on him .

According to the applicant , he was coerced by police officers into confessing to the garage thefts . He described his illtreatment as follows .

A police officer , who arrived after the applicant had been searched , took him to CARDINAL of the offices and tied him up with a rope so that his head was between his legs while he was sitting on the floor with his legs crossed and his hands shackled behind his back . The police officer pressed on his back and legs . After TIME of such treatment he was untied and placed in a cell for detainees .

TIME another police officer arrived and the applicant was taken to the same office and tied up again in the same way , with his hands shackled behind his back . The second police officer had a box with a handle and CARDINAL wires , TIME QUANTITY of which were bare . The police officers tied the wires to the applicant ’s little fingers and the second police officer started rotating the handle . The applicant felt a sharp muscle contraction and screamed . The police officers gagged him . They took turns to rotate the handle . The wires kept falling off and the police officers had to attach them again and again . At some point they poured water over the applicant ’s hands to exacerbate the electric shocks . The applicant lost consciousness several times . The electric shocks left burn wounds on his hands .

NORP The police officers’ first names were NORP and ORG on information which the applicant received later , he deduced that those police officers were operational officers ORG from the criminal investigation unit of the LOC police department .

At TIME the applicant was placed back in the cell . At his request the officer on duty took him to a lavatory where he could hold his hands , which were swollen after the electric shocks , under cold water . He remained in the cell for TIME .

Then he was taken again to the same office , where he saw CARDINAL police officers , each of whom asked him questions about the circumstances of different criminal cases . CARDINAL of them kicked him in the chest and then punched him in the left ribs . That police officer took the applicant outside to participate in the examination of the applicant ’s ORG truck conducted by a female investigator .

Thereafter the applicant was taken back inside the police station , where the police officers questioned him again , from time to time slapping him on the back of his head . When the applicant could no longer resist their pressure , they took him to some garages , where he acted in accordance with ORG instructions , showing them the garages from which he had allegedly stolen certain property . That was recorded as an on - site verification of his statements .

The police officers took the applicant to the Justice of the Peace for an examination of an administrative charge against him ( see paragraphs DATE , DATE and DATE below ) . He confirmed before the judge that he had committed the administrative offence as alleged by the police . The police officers thereafter took him to the LOC police department in GPE for questioning as a suspect in the garage - thefts case . The investigator gave him a readytosign record of his examination with his confession to the garage thefts , which he signed .

At TIME on DATE the officer on duty at the GPE police station , PERSON , drew up a record of the applicant ’s administrative arrest . It stated that the applicant had been arrested in connection with his disobedience to police ORG lawful demands , and that a visual examination of the applicant had not revealed any injuries . According to the record , the applicant requested that his wife be notified about the place of his detention . However , the section of the record indicating who was notified about the applicant ’s place of detention , and when , was not filled in .

At TIME police officer PERSON drew up a record of the applicant ’s administrative offence in which he described the circumstances of the applicant ’s apprehension at TIME in the same way as in his report ( see paragraph CARDINAL above ) . He also stated that the applicant had used coarse language and had not reacted to his and his colleague ’s demands to stop his disorderly behaviour . The record contains the applicant ’s explanation that on his way to the police station he had only stopped once and had not tried to break away from the police officers or to escape .

From TIME a senior investigator , PERSON , of the investigation division of LOC police department carried out an examination of the applicant ’s ORG truck in GPE .

From TIME to TIME in GPE investigator PERSON examined the applicant as a suspect in the presence of a lawyer on duty , Ya . According to the record of his examination , the applicant was suspected of having committed “ thefts from garage cooperatives in GPE , GPE and NORP ” . He confessed to having committed , starting from DATE , thefts from CARDINAL garages in GPE , CARDINAL garages in GPE and QUANTITY garages in GPE . No information was entered in the record about the specific garage which the applicant had entered immediately before his apprehension .

From TIME , in the course of the on - site verification of the applicant ’s statements , the applicant showed the police the garages in which he had committed the thefts .

At some point the head of the GPE police station ordered that the materials concerning the administrative case against the applicant ( see paragraphs CARDINAL above ) be transferred to LOC for examination .

According to a judgment of DATE of the Justice of ORG no . CARDINAL of LOC , the applicant , who pleaded guilty , was found to have committed an administrative offence under LAW disobedience to a police officer ’s lawful demand ( in particular , on account of his having used coarse language and having ignored the police ORG requests to discontinue such behaviour ) . He was sentenced to CARDINAL days’ administrative detention , to run from TIME of that day .

Investigator PERSON thereafter ordered that the applicant , as a suspect in the garagethefts case , should be subjected to a measure of restraint in the form of an undertaking not to leave his place of residence and to behave properly . It was stated in that decision that the applicant had fully acknowledged his guilt .

A group of police officers took the applicant to PERSON where they carried out a search of his flat , as ordered by investigator ORG According to an official record , the search was carried out from CARDINAL p.m. to CARDINAL p.m. by operational agent ORG of the criminal investigation unit of LOC police department in the presence of the applicant ’s wife and CARDINAL witnesses .

From TIME operational officer PERSON seized some items from the applicant ’s other car found near his block of flats , in the presence of his wife and CARDINAL witnesses .

After their return from PERSON , police officers took the applicant to a detention facility for administrative offenders at police station no . CARDINAL of the GPE Town police department to serve the CARDINAL days’ administrative detention ( see paragraph CARDINAL above ) . According to the detention facility records , he was placed there at TIME on DATE . The records did not mention any injuries on the applicant .

In TIME of DATE the applicant was visited by his wife and brother . At TIME a police officer on duty called an ambulance at the applicant ’s request .

According to the medical records , the applicant was examined by an ambulance doctor , Ms ORG , at TIME He complained of pain in the left side of his chest whenever he made the slightest movement or breathed , pain in the neck and heaviness in his head and explained that he had been beaten up and kicked . An examination revealed that he was suffering sharp pain around the eighth and ninth ribs on the left side , abrasions on his cheekbones and on CARDINAL of his shoulders , and swelling and hyperaemia of both hands . The applicant was diagnosed with a closed fracture of the left ribs , abrasions on his face and back , and arterial hypertension . He was provided with first aid . The ambulance doctor considered that his condition was incompatible with detention and necessitated his further examination at a traumatology centre .

The applicant was therefore released from the detention facility and taken by ambulance to the GPE traumatology centre , where he was examined at TIME and diagnosed with multiple soft - tissue bruises on his face , contusions of the rib cage and abrasions on his wrists . He explained that he had been beaten up by police officers .

The applicant ’s brother then took him to a hospital in GPE . At TIME he was admitted to LOC hospital no . DATE . He was diagnosed with concussion , contusions of the rib cage and neck , and burns on his hands . The latter diagnosis was made on the basis of several circular lesions under scabs measuring QUANTITY in diameter on his hands .

On CARDINAL DATE the applicant was examined by an expert in forensic medicine , PERSON . from ORG , in accordance with ORG decision of DATE ( see paragraph CARDINAL below ) . The expert found the following injuries on the applicant : CARDINAL circular abrasions on the back of each hand measuring QUANTITY in diameter ; similar abrasions on the right side of the lips , notably CARDINAL on the upper and CARDINAL on the lower lip ; and an abrasion measuring CARDINAL to QUANTITY on the back of the left hand near the wrist . The above - mentioned wounds had similar characteristics . The applicant also had a circular bruise on his left wrist , a bruise measuring QUANTITY on the left side of his rib cage and bruises on each side of his face , notably a bruise measuring CARDINAL on the right side and a bruise measuring QUANTITY on the left side .

On DATE the applicant was released from hospital and prescribed outpatient treatment , which he underwent at polyclinic no . CARDINAL .

On CARDINAL DATE the forensic expert , PERSON . , issued report ( акт судебномедицинского освидетельствования ) no . DATE on the basis of the applicant ’s examination on DATE and his medical records from hospital no . CARDINAL . The expert considered that , given the morphological characteristics of the injuries , they could have been inflicted as alleged by the applicant .

On DATE the applicant was examined by another expert in forensic medicine , Dr S. from the ORG Novgorod Regional Forensic Medical Examination Bureau . The applicant had several circular scars on both hands . Having also examined the applicant ’s medical records from hospital no . CARDINAL , and relying on PERSON description of his injuries of CARDINAL DATE , PERSON concluded in report ( акт судебномедицинского освидетельствования ) no . CARDINAL-D of DATE that the applicant ’s injuries , notably the abrasions on his hands and lips , the bruises on his face , left hand and the left side of his chest , and his concussion , had been inflicted by a blunt object and could have originated as a result of his having been punched and kicked . It was not excluded that the injuries could have been inflicted on DATE . Based on the existing data , it could not be categorically confirmed that the applicant had been subjected to electric shocks . However , it was not excluded that the abrasions and scars on his hands could have been caused as a result of their contact with a currentcarrying conductor . Taking into account the nature of the scars , it was not excluded that the injuries ( from which the scars had originated ) could have been inflicted on DATE .

On DATE a psychotherapist , PERSON , examined the applicant and diagnosed post - traumatic stress disorder , complicated by reactive depression in connection with his alleged ill - treatment by police officers on DATE . In particular , his recollection of those events provoked involuntary crying . Following the doctor ’s recommendation , the applicant received outpatient psychotherapy . As of DATE his condition improved and he refused further treatment .

On DATE the applicant solicited an opinion from Dr GPE about the origin of the injuries on his hands . PERSON opinion , which was based on the applicant ’s medical records , was similar to that of PERSON

A letter of CARDINAL DATE , signed by the head of the organisational and methodological department of hospital PERCENT DATE , stated that the lesions on the applicant ’s hands looked more like “ old burns ” .

Forensic medical expert opinion ( заключение специалиста , судебномедицинское исследование ) no . CARDINAL of DATE was prepared by an expert in forensic medicine , Dr Sh . from ORG , on the basis of the previous forensic medical expert opinions of DATE and DATE , another expert opinion ( CARDINAL DATE , no . MONEY ) and the applicant ’s other medical records . It stated that the medical records did not contain the necessary objective clinical symptomatology to confirm the diagnosis of the closed fracture of the ribs , the contusion of the neck and the burns on the applicant ’s hands . As regards the lesions on the applicant ’s hands , they lacked objective morphological characteristics typical of lesions caused by electric current . The diagnosis could not , therefore , be the subject of forensic medical assessment . The applicant ’s other injuries recorded in connection with the events of DATE , notably his concussion , the bruises on his face , the abrasions on his lips and on the back of his hands , the circular bruise on his left wrist and the contusion of the left side of his rib cage , were objectively supported by the medical documentation . The circular bruise on the left wrist could have been caused by a handcuff . The remaining injuries had been inflicted as a result of an impact with a blunt hard object . This could have been a fist , a shod foot or any other blunt hard object with a limited surface , given the form , small size and isolated character of the injuries . The lesions on the applicant ’s face and hands could not have been caused as a result of the applicant ’s rubbing his face with his denim jacket and sitting on his hands ( as had been suggested by police officers PERSON . and PERSON , see paragraphs DATE and CARDINAL below ) . The injuries could have been inflicted on DATE . They had caused a short - term – not exceeding QUANTITY days – health disorder and should therefore be classified as minor health damage .

On DATE the applicant lodged an appeal against the judgment of the Justice of the Peace of DATE ( see paragraph CARDINAL above ) and asked for an extension of the deadline for the appeal . He argued that the administrative case against him had been fabricated by the police .

On DATE the Volodarskiy ORG heard the applicant , who recounted the events of DATE and explained that he had pleaded guilty before the Justice of the Peace because he had been intimidated as a result of his ill - treatment at the GPE police station and because a police officer had been present at that hearing .

ORG found no good reasons for the applicant ’s failure to lodge his appeal earlier and rejected his request for an extension of the deadline for appealing .

On DATE the applicant was charged with CARDINAL counts of theft from garages committed in DATE . When questioned as an accused in the presence of a lawyer of his choice on DATE , he denied having committed the thefts and stated that his earlier selfincriminating statements had been given as a result of illtreatment by the police .

At a hearing before LOC of ORG , the victims asked the court to terminate the proceedings since the applicant had fully compensated them for the damage and apologised . The applicant pleaded guilty of CARDINAL counts of theft and asked that the GPE request be granted . On DATE ORG granted the GPE request and terminated the criminal proceedings against the applicant for reconciliation between the parties .

At TIME on DATE the GPE traumatology centre reported to the LOC police department about the medical assistance administered that morning to the applicant , who had allegedly been beaten up by police officers in GPE on TIME DATE ( see paragraph CARDINAL above ) . The LOC police department transferred the report to the GPE inter - district investigation division of the investigative committee at the ORG NORP regional prosecutor ’s office ( Дзержинский межрайонный следственный отдел следственного управления PERSON комитета при прокуратуре ORG по PERSON области , “ the Dzerzhinsk Investigative Committee ” ) on DATE .

At TIME on DATE , hospital no . CARDINAL reported to the LOC police department of GPE Novgorod that the applicant had been hospitalised with injuries allegedly sustained as a result of beatings by police officers in LOC ( see paragraph CARDINAL above ) . On DATE the applicant , who resided in LOC , lodged an application with the head of the same police department requesting that criminal proceedings be brought against the police officers who had illtreated him at the GPE police station on TIME DATE .

DATE . On DATE the LOC police department transferred the materials concerning the applicant ’s alleged ill - treatment to LOC police department , which in its turn transferred them to ORG on DATE .

In the meantime , on DATE the LOC investigation division of the investigative committee at the GPE NORP regional prosecutor ’s office also received the applicant ’s complaint of illtreatment . The applicant stated that he could identify the police officers who had ill - treated him , including those who had done so on the instructions of the investigator in charge of the garage - thefts case .

On DATE an investigator of ORG started a pre - investigation inquiry into the applicant ’s allegation and ordered his forensic medical examination ( судебномедицинское освидетельствование ) . In her decision she stated that during TIME from DATE the applicant had allegedly been gagged , tied up with a rope , punched and kicked , and electric current had allegedly been applied to him leaving burns marks .

On DATE the head of ORG granted the investigator ’s request for an extension of the timelimit for the preinvestigation inquiry to DATE , in order to receive the applicant ’s “ explanations ” ( see paragraph CARDINAL below ) .

The applicant ’s wife and the applicant gave “ explanations ” to the investigator on CARDINAL and DATE , respectively . In describing his illtreatment at the GPE police station the applicant stated , in particular , that police officers PERSON and PERSON had locked the door of the office from the inside . They had tied his legs with a rope , which they pulled over his shoulders to shackle his hands behind his back , and attached them to handcuffs , thereby bending his head below the level of and between his knees , which were pulled aside . O. had stepped and jumped on his knees , causing him severe pain . O. had also slapped him in the back of his head several times . They had demanded that he confess to the thefts which had been committed in the district . Later in the same office , he had been questioned about the thefts by O. , PERSON and other police officers . CARDINAL of them had kicked him in the chest and punched him under the left armpit , making it difficult for him to breath . They had mocked him , hit and slapped him . The applicant stated that he could identify police officers PERSON , ORG and the third police officer who had kicked and punched him . He described their appearance and how they had been dressed on DATE .

On DATE “ explanations ” were also received from a neurosurgeon of hospital no . CARDINAL , who had supervised the applicant ’s treatment . He confirmed the information in the hospital medical records .

On DATE the investigator ordered that the applicant ’s allegation of ill - treatment by LOC police department officers , whose actions revealed elements of a crime under Article MONEY ( a ) of LAW , be transferred for investigation to ORG .

On DATE an investigator of ORG received an “ explanation ” from police officer PERSON , who stated , inter alia , that following the applicant ’s refusal to accompany him and police officer PERSON to the police station , physical force had been applied to the applicant , notably his arms had been twisted behind his back and he had been handcuffed . U. denied using any other physical force .

On DATE the deputy head of ORG , like in the proceedings before ORG , granted the investigator ’s request to extend the initial threeday timelimit for the pre - investigation inquiry to DATE in order to examine the applicant , to identify and examine the police officers who had allegedly beaten him up , and to carry out a medical examination of the applicant after his recovery .

On DATE the investigator received “ explanations ” from senior operational officer Sh . from the criminal investigation unit of the LOC police department , who had seen the applicant in a cell at the GPE police station . PERSON . stated that the applicant “ had been sitting on his hands and , therefore , when taken out of the cell his hands had been swollen ” . PERSON . further stated that the applicant “ had been rubbing his face with his denim jacket ” . According to PERSON . , this had caused an irritation to the skin on the applicant ’s face . PERSON . denied any violence or threats towards the applicant . In PERSON . ’s opinion the applicant had inflicted his injuries on himself in order to complain afterwards that police officers had used unlawful investigative methods .

On DATE “ explanations ” were received from the investigator , PERSON She stated that operational support in the garage - thefts case had been provided by officers ORG She had arrived at the GPE police station as a member of an investigative task force set up in connection with the series of thefts from garages , questioned the applicant and carried out an onsite verification of his statements . The applicant had had no visible injuries . She denied that she had instructed the police officers to beat the applicant up and considered the applicant ’s allegation a slander with a view to avoiding liability for his crimes .

On DATE the head of the criminal investigation unit of the LOC police department , PERSON , explained that a report had been received from LOC police department officer on duty about the apprehension of the applicant , who had forced open a garage door in GPE . As thefts in the proximity of GPE had become more frequent , an investigative task force had been sent to the scene of the incident . When PERSON had arrived at the GPE police station , he had seen the applicant , who “ had been sitting on his hands and , therefore , when taken out of the cell his hands had been swollen ” . The applicant had had an irritation on the skin of his face as though he had rubbed it . The applicant had indeed been rubbing his face with his denim jacket . PERSON had rebuked the applicant for rubbing his face in order to injure himself . PERSON denied any violence or threats towards the applicant . He considered that the applicant had inflicted his injuries on himself in order to complain afterwards that police officers had used unlawful investigative methods .

On DATE the investigator ’s request for an extension of the timelimit to twenty days for the pre - investigation inquiry was granted . On DATE the pre - investigation inquiry was extended for DATE .

On DATE “ explanations ” were received from operational officer ORG He stated that he and operational officer ORG had interviewed the applicant after his arrest on DATE . He alleged that the applicant had refused to communicate with them and had been placed back in a police cell . PERSON had taken the applicant to PERSON to carry out a search of his flat . There had been no visible injuries on the applicant except for some redness around his temples .

On DATE operational officer GPE explained that on TIME DATE he had been informed by phone about the applicant ’s apprehension . He had gone to the GPE police station in order to check whether the applicant had been involved in thefts from garages committed recently in GPE . After his arrival he had joined PERSON , who had been interviewing the applicant . The applicant had had no visible injuries , except for some redness on his face . The applicant had denied his involvement in the crimes and had not wished to talk to them . He had therefore been placed in a police cell .

Both GPE and GPE denied any use of violence against the applicant at the GPE police station . They supposed that the applicant had either inflicted his injuries on himself in order to compromise the police and thereby avoid liability for his crimes , or could have sustained the injuries during his apprehension .

Relying on the above “ explanations ” by the police officers and forensic medical report no . CARDINAL-E ( see paragraph CARDINAL above ) , the investigator of ORG concluded in his decision of DATE that the applicant ’s allegations had not been confirmed . He ordered , pursuant to LAW ( “ CCrP ” ) , that no criminal case be opened for lack of the elements of a crime , under ORG CARDINAL and CARDINAL of LAW , in the acts of investigator PERSON and police officers NORP and PERSON , who had acted in accordance with LAW , and officers of the criminal investigation unit of the LOC police department , ORG , PERSON . and PERSON

NORP The investigator stated that the time at which the applicant ’s injuries had been inflicted , which the forensic medical expert had estimated in report no . CARDINALE as the night from CARDINAL to DATE , did not match the time of the applicant ’s apprehension and the ensuing investigative activities . The allegation concerning burns as a result of torture by electric current had not been confirmed by the applicant ’s medical examination . Lastly , the investigator held that the applicant ’s allegation of illtreatment by the police had been used as a defence aimed at avoiding liability for the crimes committed by him .

On DATE the decision of DATE was revoked as unfounded by an acting head of ORG . He ordered an additional pre - investigation inquiry , in particular another forensic medical examination of the applicant with a view to determining whether his injuries could have been caused in circumstances as suggested by police officers PERSON , PERSON and PERSON The time - limit for the preinvestigation inquiry was extended to DATE .

DATE . On DATE an investigator of ORG issued a new decision refusing to open a criminal case on the grounds that it followed from “ explanations ” received from Dr Ya . that the applicant could have sustained his injuries “ in circumstances as suggested by the LOC police department officers , that is in the course of his apprehension ” . The decision did not quote or describe in detail either PERSON . ’s “ explanations ” or “ the circumstances as suggested by the LOC police department officers ” . It referred to the initial reports and previously received explanations by U. , PERSON and other police officers ( see , in particular , paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG revoked its decision of DATE and ordered an additional preinvestigation inquiry to rectify the defects identified in ORG decision of DATE ( see paragraph CARDINAL below ) .

There followed a series of refusals by investigators of ORG to open a criminal case on the same grounds and for the same reasons as those in the decision of CARDINAL DATE , with some new information added . Each time , the decisions were revoked by the investigative committee itself in view of the unsatisfactory and incomplete inquiry . They were delivered on the following dates :

- third refusal on DATE , revoked on DATE ;

- fourth refusal on DATE ( “ explanations ” from the ambulance staff who examined the applicant on DATE , consistent with the relevant medical records , were added ) , revoked on DATE ;

- fifth refusal on DATE , revoked on DATE ;

- sixth refusal on DATE , revoked on DATE ;

- seventh refusal on DATE ( a statement by PERSON , a witness during the search of the applicant ’s flat on DATE , was added ; she stated , in particular , that during the search the applicant had looked bad , his face had been “ greenish ” and he had asked for water ) , set aside by the main department of procedural control of the investigative committee at ORG of GPE ( ORG управление процессуального контроля ORG комитета при прокуратуре ORG ) on DATE ;

- eighth refusal on DATE ( information about the outcome of the criminal proceedings against the applicant added ) , set aside on DATE by the main department of procedural control of the investigative committee at ORG which noted , in particular , the following defects : the failure to question police officer ORG and the police officers on duty at the GPE police station about the circumstances of the applicant ’s apprehension ; the inconsistencies between the applicant ’s and the police ORG statements about the origin of the injuries ; and the inconsistency between the forensic medical report , according to which the alleged ill - treatment had taken place during TIME from DATE ( see paragraphs CARDINAL , DATE and DATE ) , and the statements by the applicant and the police officers , according to which the incident had taken place during TIME DATE ;

- ninth refusal on DATE ( it was added that no elements of crimes , under ORG CARDINAL and CARDINAL of LAW , had been established in the applicant ’s actions during his arrest ) , revoked on DATE .

On DATE the investigator of ORG took a new decision in which he held – as in the previous decisions – that pursuant to LAW ORG , no criminal case should be opened into the applicant ’s allegation of illtreatment by police officers . The decision cited new “ explanations ” by some police officers about the events of DATE , which are summarised below . The decision cited the same “ explanations ” by police officer NORP as before ( see paragraph QUANTITY above ) .

Police officer PERSON stated , in particular , that on their way to the police station the applicant had attempted to run away . PERSON had managed to grab him by the sleeve of his jacket . PERSON and U. had pushed him face down on the asphalt , twisted his hands behind his back and handcuffed him . They had retained him on the ground for TIME until he had stopped resisting and insulting them . No other physical force had been used on him . At the police station the applicant had been unshackled and searched . Thereafter , operational agent PERSON had arrived at the police station and taken the applicant to his office . PERSON had not seen the applicant since then . Later operational agent GPE had stayed with the applicant in that office , while PERSON , U. and PERSON had searched for the applicant ’s car .

Police officers PERSON and PERSON . explained , in particular , that they had arrived in GPE together with the investigator , PERSON , and police officer PERSON from LOC police department in connection with the applicant ’s arrest and their work on a series of unsolved garage thefts . They had arrived at the GPE police station at TIME The applicant had been taken to ORG office for questioning .

NORP The decision also referred to police officer PERSON , who had stated , in particular , that he had arrived at the GPE police station following a telephone call from an officer on duty , PERSON , about the applicant ’s apprehension . PERSON had told PERSON about the circumstances of the applicant ’s apprehension . In particular , PERSON had seen , in the garage being opened by the applicant , some things that he had collected and was preparing to carry away . PERSON had said that the applicant had had a bunch of metal picklocks on him . PERSON had believed that the applicant had been involved in the series of garage thefts . The type of lock on the garage which the applicant had opened was the same as those on the other garages from which thefts had been committed . He had taken the applicant to his office and questioned him until TIME No one else had been present in his office . The applicant had stated that he had had no previous criminal convictions . PERSON had phoned the information centre of the NORP regional police department , which had informed him that the applicant had previously been convicted of garage thefts in LOC of GPE Novgorod . According to the records of the information centre , the applicant ’s mobile phone had been registered as missing in connection with a garage theft in GPE . At CARDINAL a.m. police officer GPE had arrived and started interviewing the applicant in PERSON ’s office . The applicant had not wished to communicate with them and they had taken him to the officer on duty .

K.O. had also explained that he , GPE , ORG had searched for the applicant ’s car , which they had found in CARDINAL of the streets in GPE . When looking inside PERSON had seen a spade resembling one which had been stolen from CARDINAL of the garages . Afterwards they had returned to the police station and waited for the arrival of the investigative task force of the LOC police department . The task force consisted of PERSON , PERSON . and PERSON , investigator PERSON and an expert criminologist , I. They had arrived at TIME and carried out investigative measures . In particular , investigator PERSON had questioned the applicant and then conducted the onsite verification of his statements . The applicant was then taken to the Justice of the Peace .

DATE . Police officer ORG ’s new “ explanations ” were largely similar to those of PERSON , with some discrepancies in respect of the time of the events . According to ORG , the investigative task force arrived at the GPE police station at TIME The group that carried out the searches in GPE PERSON returned to GPE together with the applicant at CARDINAL a.m. on DATE , after which ORG and another police officer took the applicant to the GPE detention facility to serve his administrative sentence .

B. , an officer on duty at the GPE police station on DATE , explained that at TIME police officers PERSON and PERSON had taken the applicant to the police station . He had not seen any injuries on the applicant . The applicant had been searched . PERSON had called PERSON , who had arrived TIME later and had taken the applicant to his office . He had not heard any shouts or noise from ORG office . B. did not remember the applicant being brought back and had left at TIME when his shift had ended .

The decision of DATE also cited the forensic medical expert report no . CARDINAL of DATE ( see paragraph CARDINAL above ) . The investigator concluded that the applicant ’s medical examination had not confirmed his allegation that he had sustained burns on his hands as a result of torture by electric current . His other injuries – the abrasions on his face , the bruise on his chest and concussion DATE could have been caused by police officers PERSON and PERSON in the course of his apprehension when they had pushed him face down on the asphalt and retained him in that position . The lesions on his wrists could have been caused by handcuffs , which had been used by NORP and PERSON at the time of his arrest . The actions of NORP and PERSON had not violated the provisions of LAW and , therefore , did not carry the elements of a crime under LAW and QUANTITY of LAW . The investigator concluded that the applicant ’s allegation of illtreatment by the police officers from the criminal investigation unit had not been confirmed by the results of the pre - investigation inquiry .

The applicant appealed against the investigator ’s decision of DATE ( see paragraph CARDINAL above ) , arguing , in particular , that he had not been personally interviewed by the investigator , the origin of his injuries had not been established and detainees at the GPE police station on DATE had not been identified and interviewed .

On DATE the ORG dismissed the applicant ’s appeal . It noted that a criminal case against the applicant on charges of garage thefts had been pending before ORG since DATE . ORG held that any assessment of the applicant ’s allegation that physical force had been used against him during questioning would inevitably lead to an assessment of the evidence on which the indictment against him was based . ORG had no jurisdiction over that matter , which had to be dealt with at a hearing in the applicant ’s criminal case .

On DATE the Nizhniy ORG rejected an appeal lodged by the applicant against ORG decision and fully endorsed ORG findings .

On DATE the ORG dismissed an appeal lodged by the applicant against the investigator ’s decision of DATE ( see paragraph DATE above ) . It held , in particular , that it had been established during the preinvestigation inquiry that the police officers had used physical force and handcuffs lawfully in order to apprehend the applicant . It followed from Dr Ya . ’s “ explanations ” that the applicant ’s injuries could have been received in the course of his apprehension , as had been suggested by the LOC police department officers .

On DATE the ORG granted an appeal lodged by the applicant against ORG decision . It found that ORG had failed properly to assess the applicant ’s arguments about the investigative authority ’s omissions in collecting evidence . Thus , by confirming that the forensic medical experts had not been questioned about the applicant ’s burns , ORG had in fact acknowledged that the applicant ’s version of events had not been properly assessed . It had also failed to assess the police ORG statements in respect of the applicant ’s injuries and their origin , in particular his concussion . ORG finding that the applicant could have sustained the injuries during his apprehension had not been based on a proper assessment of PERSON . ’s “ explanations ” . Those “ explanations ” did not contain any detailed information which would allow the court to come to such a conclusion .

On DATE ORG declared the investigator ’s decision of DATE unfounded in view of the incomplete preinvestigation inquiry , noting the same defects as those highlighted by ORG . The decision came into force on DATE and was served on the investigative committee on DATE .

On DATE the ORG examined an appeal lodged by the applicant against the investigator ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) . The applicant argued that the preinvestigation inquiry had not met the requirements of an effective investigation according to the ORG ’s case - law under LAW . He also argued that the investigator ’s repeated refusals to institute criminal proceedings were unlawful and lacked reasons ( he referred to LOC v. GPE , DATE , § CARDINAL , Reports of Judgments and Decisions CARDINAL-VI ; ORG v. GPE , DATE , § CARDINAL , Reports CARDINALVI ; and ORG v. GPE , no . GPE , § CARDINAL , DATE ) . In particular , the investigator had not interviewed the applicant and his wife and had failed time and again to make a legal assessment of the applicant ’s injuries , a failing which had been established by the courts in the course of a previous LAW review ; the police ORG suggestions that the injuries had been selfinflicted had been refuted by the expert conclusions in report no . CARDINALE ; the allegation concerning the infliction of electric shocks had been found groundless despite the fact that the expert opinions had not excluded that possibility ; the investigator had communicated the wrong time ( TIME instead of CARDINAL to DATE ) of the alleged illtreatment to the medical experts ; and PERSON . ’s “ explanation ” that the applicant could have sustained his injuries in “ circumstances as suggested by police officers PERSON , NORP and PERSON was not precise and lacked information as to what those circumstances were and which injuries were concerned .

The applicant further argued that the facts of the case could only be established as a result of investigative measures within the framework of a criminal case , such as the identification of the police officers responsible for the illtreatment , a confrontation between him and the police officers and their questioning . LOC assistant prosecutor had submitted to the court that the applicant ’s arguments were lawful and reasoned , and that ORG decision ought to be set aside as unlawful .

ORG found the applicant ’s submissions well founded and the investigative committee ’s decision unlawful and unreasoned . It ordered that the shortcomings revealed be corrected by the head of ORG .

On DATE the ORG dismissed the applicant ’s appeal against the investigator ’s decision of DATE ( see paragraphs CARDINAL - CARDINAL above ) . It considered that all instructions for correcting the defects of the previous preinvestigation inquiries , in particular those set out in the decision of the investigative committee ’s main department of procedural control of DATE ( see paragraph CARDINAL above ) , had now been fulfilled ; the preinvestigation inquiry had therefore been thorough and the decision lawful and reasoned .

The applicant appealed against ORG decision , relying on the PERSON case - law and arguing , in particular , that in order to take a lawful and reasoned decision it was necessary to carry out investigative measures such as identification , confrontation , questioning of the police officers , investigative experiments and on - site verification of statements . That would only be possible within the framework of a criminal case , which the investigative committee had never opened .

On DATE the Nizhniy ORG rejected the applicant ’s appeal . It stated that the examination of a refusal to institute criminal proceedings within the meaning of Article CARDINAL of the ORG required a court to examine whether the procedure for taking such a decision had complied with the legal requirements and whether an applicant ’s rights and freedoms had been observed in the course of the collection of evidence which served as the basis for such a refusal . The assessment of that evidence fell outside the scope of the examination under LAW . It endorsed ORG findings and upheld its decision .

The applicant lodged a civil action for damages incurred as a result of ORG failure to conduct an effective investigation into his allegation of ill - treatment by the police , claiming compensation for non - pecuniary damage in the amount of MONEY ( RUB ) .

On DATE the ORG of PERSON held that the investigative committee ’s decisions refusing to institute criminal proceedings against the police officers , which were taken on the basis of incomplete inquiries and subsequently revoked by the investigative committee ’s own officials or quashed by the courts , had violated the applicant ’s right to an effective investigation under the Convention . The investigative committee ’s decision of DATE to refuse the applicant ’s representative access to the materials of the pre - investigation inquiry had violated his constitutional rights . ORG found that as a result of such actions and decisions on the part of the investigative committee , the applicant had suffered non - pecuniary damage .

It further noted , having regard to the investigative committee ’s decision of DATE ( see paragraph CARDINAL above ) , that the applicant ’s allegations of ill - treatment had not been confirmed by the pre - investigation inquiry , despite its “ thoroughness , completeness and length ” . ORG also stated that the applicant was also responsible for the revocation of the decisions not to institute criminal proceedings , which had been triggered by his complaints .

In its judgment of CARDINAL DATE ORG awarded the applicant compensation in the amount of RUB CARDINAL for the nonpecuniary damage suffered by him , to be paid by the federal treasury . The judgment came into force on DATE .

The applicant ’s alleged ill - treatment in police custody and the investigative authority ’s response to his complaint was reported by the NORP mass media . Information about his alleged ill - treatment by the police was included in ORG report of DATE on “ The state of the world ’s human rights ” .


SINFIELD AND OTHERS v. THE UNITED KINGDOM

George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The CARDINAL applicants are either former servicemen or personal representatives or dependents of deceased former servicemen . A list of the applicants is set out in the appendix . They are represented before the ORG by Mr PERSON , a solicitor practising in GPE .

ORG For ease of reference , the term “ applicants ” in the following statement of facts should be taken to mean both the present applicants and the deceased former servicemen who are represented by their estates .

DATE the GPE carried out a series of atmospheric tests of thermonuclear devices in the region of LOC . All CARDINAL branches of the armed forces took part , involving CARDINAL servicemen , including the applicants . Some contemporaneous monitoring was carried out of radiation levels to which individual servicemen were exposed at the moment of detonation , but no monitoring took place of subsequent exposure to radiation in the form of fallout through ingestion of contaminated water or fish , for example .

NORP In medical and scientific circles it was known since DATE that exposure to ionising radiation was capable of causing many forms of cancer , although the risk was generally associated with fairly high levels of exposure caused by “ prompt ” or “ instantaneous ” radiation . Subsequently , the effects of lower levels of radiation caused by fallout were studied . In GPE , public interest in the possibility that NORP servicemen might have suffered ill effects as the result of exposure during the nuclear tests was aroused following a series of items on a ORG television news programme broadcast in DATE and DATE . These ventilated the possibility that test participants were suffering unusual levels of ill health of various forms . This interest appears to have stemmed from publicity in GPE generated by concerns raised in ORG by CARDINAL of the applicants , Mr PERSON . Mr PERSON publicly claimed that he was CARDINAL of a number of nuclear test veterans who had suffered ill health as the result of exposure to radiation .

Soon after this publicity , a group of veterans , all of whom had served in the LOC during the tests , formed the NORP LAW BNTVA ) . Mr PERSON was their Chairman . Their objectives were to gather information about their exposure to radiation and its likely effects , to press for further research and to seek financial recompense for any harm suffered , either by claiming for war pensions or by making claims for damages .

As a result of the publicity described above , in DATE , questions were raised in ORG about the possibility that the veterans had been injured by exposure to radiation . The attitude of ORG ( ORG ) was , and is , that the men had not been exposed to excessive levels of ionising radiation . However , the ORG commissioned a health survey of the men involved in the tests , to be conducted by ORG ( FAC ) .

NORP The survey sought to identify all the men who had been present in the area at the time of the tests and to compare them with a similar sized cohort of men of similar backgrounds who had not attended the tests . CARDINAL nuclear test veterans were identified . The survey examined death registration documents for causes of death and also the incidence of cancer using ORG . The report , issued in DATE , disclosed that , among the veterans , there was no excess mortality either from all causes or from all cancers . However , there was a significantly higher level of deaths from leukaemia and multiple myeloma among the participants than among the controls . The report expressed the view that this was probably a chance result , to be explained by the very low level of deaths from these causes among the control group . When the deaths among the participants were compared with the national mortality figures for those conditions , the excess among the participants was only slight . It was concluded that participation in the nuclear tests was not associated with any detectable effect on expectation of life or the risk of developing cancer . It added :

“ that there may well have been small hazards of leukaemia and multiple myeloma associated with participation in the programme , but their existence is certainly not proven and further research is desirable ” .

The LAW carried out CARDINAL more surveys and reported in DATE and DATE , but the later conclusions did not differ significantly from the earlier ones . The methodology and conclusions of all CARDINAL surveys were criticised by the BNTVA and subsequently by the claimants in the group action , principally on the ground that they looked only at deceased , but not living , veterans .

Meanwhile , in DATE an action for damages was begun by a veteran named PERSON . He developed a lymphoma in DATE and alleged that it had been caused by exposure to ionising radiation during the tests . The allegations of negligence in ORG v. The Secretary of ORG [ DATE ] ORG CARDINAL were based on both exposure to prompt high dose radiation ( that is , as a result of proximate presence at CARDINAL or more of the nuclear tests ) and delayed , low dose , exposure ( as a consequence of ingesting radionuclides from fallout while swimming in contaminated waters or eating contaminated fish ) . It was also alleged that the ORG had deliberately exposed the men to radiation as an experiment to see what the effects were . The ORG denied liability and sought to rely on immunity from suit provided by LAW . It did not plead LAW . The issue of immunity was treated as a preliminary issue and in due course went to ORG which held in the Mr Pearce ’s favour , leaving him free to proceed to trial . However , soon afterwards , the claim was discontinued , because the Mr PERSON ’s team concluded that it could not prove a causal link between the exposure to radiation and the development of cancer .

In DATE , the results of a study carried out by a team of scientists led by PERSON of ORG were published as “ Elevated chromosome translocation frequencies in GPE nuclear test veterans ” ( “ the Rowland Study ” ) . Using a technique called “ mFISH ” , which involved “ painting ” chromosomes enabling breaks and rearrangements to become visible , the team had examined the damage to the chromosomes of CARDINAL GPE veterans who had served on board CARDINAL frigates positioned CARDINAL nautical miles upwind from certain explosions which were part of the GPE nuclear test programme . The ORG study found that the CARDINAL crew members examined had on average CARDINAL times as many chromosomal aberrations than CARDINAL controls who had not taken part in the tests . This finding was regarded as significant and probably attributable to long term genetic damage resulting from ionising radiation during and after the nuclear test . An attempt was made to estimate the radiation dose from the level of translocations . The median dose for the veterans was estimated to be far in excess of the median estimated dose of the controls . However , the study made no claim for any correlation between the raised levels of chromosomal aberrations and the incidence of any illness .

Meanwhile , in DATE , several veterans instructed CARDINAL different firms of solicitors with a view to bringing claims for damages . ORG was granted for the investigation of the claims . On DATE a claim form was issued in respect of a group action brought by or on behalf of CARDINAL former servicemen , including the applicants , against the MOD . Damages were sought in respect of injury , disability or death alleged to have occurred in consequence of the exposure of the former servicemen to ionising radiation as a result of their presence near , or involvement in the aftermath of , the nuclear tests .

In DATE public funding was withdrawn from the claimants on the ground that the legal merits were insufficient to justify the case being pursued at public expense . It was agreed between the parties to stay the proceedings , until the ORG study had been published . The stay was lifted on DATE and a different firm of solicitors took over , after arrangements had been made for the matter to proceed on a conditional fee basis . Under the conditional fee arrangement , the solicitors would be paid only if the claimants were successful . The claimants purchased an insurance policy , known as “ ATE ( after the event ) insurance ” , to cover the ORG ’s costs , should they be ordered against them .

NORP On DATE Master Particulars of Claim , containing more detailed allegations , were served . It was alleged that the nuclear tests had been negligently planned and executed , in that , inter alia , protective clothing and equipment was not supplied , to prevent the exposure of the servicemen to ionising radiation both at the time of each blast and subsequently , in the form of fall - out , and steps were not taken to prevent servicemen from swimming in contaminated water and eating contaminated seafood in the aftermath of the tests . In addition , it was alleged that the authorities failed properly to monitor the extent to which each serviceman was exposed to ionising radiation , both during and after each test . The claimants further claimed that they had suffered a variety of illnesses known to result from radiation exposure and relied in particular on the mFISH methodology , used by the ORG study ( see paragraph CARDINAL above ) , as a reliable and specific indicator of genetic damage caused by exposure to ionising radiation . The Master Particulars of Claim included a partial list of the illnesses which the claimants , as a group , contended to have suffered as a result of their exposure to radiation , but individual medical reports were not included . In connection with the question whether the claims were timebarred , the applicants contended that it was only with the availability of the results of the ORG study in DATE that “ scientific evidence became available that indicated that the conditions suffered by the veterans were attributable to exposure during the tests ” . Furthermore , they argued that where delay had occurred , which in most cases was not great , this was explicable by funding difficulties and the ORG ’s attitude of denial , and that the cases should be allowed to proceed under LAW of LAW ( “ the DATE LAW : see paragraphs CARDINAL below ) .

The ORG denied liability , alleging that all proper precautions were taken to protect service personnel from exposure to ionising radiation and that , in most cases , the actual exposure of the men was no more than the background radiation they would have experienced in GPE . In addition , the ORG contended that the claimants would be unable to prove , individually or as a group , that their illnesses were attributable to their presence during the nuclear tests , rather than other factors . The ORG also argued that the claims were time - barred under the terms of LAW , which requires a claimant to institute proceedings within DATE of the date on which the cause of action accrued or “ the date of knowledge ( if later ) of the person injured ” . It was contended on behalf of ORG that the claimants had relevant knowledge prior to DATE ( that is , before the DATE period preceding the institution of proceedings ) . In relation to the discretionary power under LAW of LAW , it was argued that the passage of time since the tests had eroded the cogency of the evidence and that the overall merits of the claim were weak , particularly in relation to causation .

A group litigation order was made , which decided inter alia that the issue of limitation should be tried as a preliminary point . On the agreement of the parties , CARDINAL test cases were selected by each side for the purpose of the preliminary hearing to determine the limitation issues . On DATE the ORG informed the ORG solicitor that it intended to serve expert evidence going to the weakness of the claims on causation . The following day the ORG was granted leave to serve limited expert evidence in the fields of radiobiology , epidemiology and nuclear physics . The applicants were subsequently granted leave to serve expert evidence in the same disciplines . The selection of the test cases was completed by DATE . Disclosure was provided by the parties , but was limited to documents relevant to the limitation issues only .

The hearing took place over DATE in DATE and DATE before Foskett J , who heard and considered expert evidence in relation to the development of scientific knowledge of the effects of ionising radiation as well as evidence from the claimants about their knowledge and belief about the cause of their injuries . He delivered his judgment on DATE . Although the claimants had complained in their Particulars of Claim of exposure to prompt radiation , it was agreed early in the trial that none of the veterans had been sufficiently close to the explosions to have been affected by prompt radiation .

At the hearing , without issuing any application , the ORG invited the judge to strike out the claims or , in the alternative , to give summary judgment in favour of the ORG , on the ground that the claims had no prospect of success . PERSON declined to do so , ruling that these requests were premature , since causation was essentially a question of fact and since the facts , dependent on lay and expert evidence , had not been established at the current stage of the proceedings . Moreover , he did not accept that the PERSON case on causation was so weak that the claims were bound to fail . However , he accepted that , if any of the cases were to clear the limitation hurdle and proceed to trial , there was a risk that they might subsequently be abandoned because of difficulties in establishing causation , and stated that , if invited to do so by the defendant , he would consider how ORG could be protected in terms of costs and other adverse consequences should this occur .

On the limitation issue , the judge considered himself bound by previous case - law to hold that “ knowledge ” within the meaning of section CARDINAL ) of the DATE Act in effect meant “ belief ” , so that each claimant acquired the relevant knowledge at the moment in time when he formed the belief that his injury was capable of having been caused by exposure to radiation . Following this approach , he examined each case to determine the moment at which the veteran had manifested not merely suspicion but a firm belief that his illness was attributable to exposure to radiation . He found that CARDINAL of the lead claimants had not had knowledge of their claims , within the meaning of section CARDINAL of LAW , until DATE before they began proceedings , so they were entitled to proceed with their claims as of right . He further considered that the claims of the other CARDINAL test claimants were prima facie statute barred , but exercised his discretion under section QUANTITY so as to allow the actions to proceed . In particular , he emphasised that the need to avoid an apparent injustice , both in the minds of the claimants and of the general public , was a weighty factor to be taken into account . The judge awarded the claimants their costs , estimated at GBP CARDINAL , to be paid by the MOD .

The ORG appealed to ORG , which gave judgment on DATE ( ORG v. A.B. and Others [ DATE ] EWCA Civ CARDINAL ) . ORG upheld the trial judge ’s refusal to strike out the case , but on different grounds . They considered that the pleadings disclosed reasonable grounds for bringing the case and that as there had been no abuse of process nor failure to comply with procedural rules , it would be wholly inappropriate to strike the cases out . ORG considered that the ORG ’s application for summary judgment should be rejected on procedural grounds , because no formal notice had been given .

With regard to the limitation issues , ORG applied broadly the same test as PERSON , although it considered that in relation to CARDINAL of the CARDINAL test cases , he had applied too high a threshold . In ORG view , CARDINAL case , that of PERSON ( the first applicant ’s husband ) , who was diagnosed with non - Hodgkin ’s lymphoma in DATE , had been brought in time . In relation to the discretion under LAW , ORG held that the trial judge had erred in law in holding that the need to avoid an apparent injustice , both in the minds of the claimants and of the newspaper - reading public , was a weighty factor to be taken into account . The court further held that the broad merits test should be a prominent consideration when deciding whether or not to exercise the discretion . The resource implications both for the ORG and ORG solicitors and for the courts would be enormous , and it would be inappropriate to allow an expensive and resource - consuming trial to take place if the prospects for the claimants’ success were slight . On the other hand , if the prospects of success “ were even reasonable , those resource considerations fade into relative insignificance ” . ORG next examined the likely strength of the applicants’ case on causation . They observed that the burden of proving that the alleged tort caused the alleged injury lay on the claimant , on the balance of probabilities . In order to determine whether the section CARDINAL discretion should be exercised , the court had to assess the broad merits of the material put before . The claimants had not produced evidence of how they intended to estimate the doses of radiation to which they were exposed and the court considered that the best they could hope for would be to show low but significant exposure . In addition , on the state of the evidence before the court , there was no prospect that the claimants would be able to satisfy the “ but for ” test of causation by showing that their illnesses were at least twice as likely to have been caused by their exposure to radiation during the tests than by other causes , for example , smoking . Nor was there any possibility , on the evidence as it stood , that the claimants would be able to rely on the synergistic inter - action of CARDINAL different causative agents . The foundation of medical evidence had not been laid . The court therefore concluded that the PERSON case on causation faced very great difficulties . They accepted that there was a theoretical possibility that further evidence might become available if the case were permitted to proceed , but nonetheless underlined that they had to apply the broad merits test under section CARDINAL on the basis of the evidence which the claimants had put before the court . When considering , in relation to each of the CARDINAL time - barred test cases , whether to exercise its discretion under LAW , ORG found that the merits of each case were weak on causation and that the prospects of success were therefore weak . In addition , the delay in bringing the claims would be prejudicial to the ORG , through the loss of available witnesses . In consequence , the court declined to exercise its discretion to allow the time - barred cases to proceed .

ORG concluded with the following words :

“ We recognise that these decisions will come as a great disappointment to the claimants and their advisers . We readily acknowledge the strength of feeling and conviction held by many of the claimants that they have been damaged by ORG in the service of their country . The problem is that the common law of this country requires that , before damages can be awarded , a claimant must prove not only that the defendant has breached its duty of care but also that that breach of duty has , on the balance of probabilities , caused the injury of which the claimant complains . These can be heavy burdens to discharge .

If we look back to DATE , PERSON won a significant victory in ORG , which established that the ORG could not rely on the immunity of the ORG from suit . Yet , within DATE of that victory , PERSON abandoned his claim because his advisers recognised that they could not satisfy the burden of proving that Mr PERSON ’s cancer had probably been caused by radiation exposure ; for his personal position , the victory was entirely pyrrhic . As we noted earlier , the abandonment of that case comprised a warning to those who wished to follow after . Causation would be a potentially difficult issue and would have to be addressed if any such actions were to have a prospect of success . Thus , it was no surprise that CARDINAL of the first steps taken by [ the solicitors ] originally instructed by ORG , was to seek evidence to establish causation ( which was not forthcoming ) . Further , although the ORG raised the issue of causation both generically and , later , in the individual cases , no attempt was apparently made when the lead cases were identified to obtain specific evidence on this topic . It may be that it is not yet possible for a doctor to say that a condition such as cancer has probably been caused by radiation as opposed to any of the other possible causes but , until such evidence is available , claimants will face the difficulty which caused PERSON to abandon his claim .

We have no doubt that it will appear that the law is hard on people like these claimants who have given service to their country and may have suffered harm as a result . No doubt partly with this background in mind , ORG has provided that servicemen who have been exposed to radiation which might have caused them injury will be entitled to a war pension . Of course , a war pension is not as financially beneficial as common law damages but it is some compensation . Of particular importance on this issue , on an application for a war pension , the burden of proving causation is reversed ; thus , the ORG has to exclude the possibility that the applicant has been harmed by radiation . We can not say that any of these claimants who have , so far , not been awarded pensions will succeed in their attempts to do so but their chances of success must be far greater with the ORG having to prove the absence of causation than they ever were while the claimants had to establish it . ”

The claimants were ordered to pay PERCENT of the ORG ’s costs of the first instance trial on the preliminary issues of limitation , and all of the ORG ’s costs of the appeal . These costs , in excess of MONEY , were paid by the ORG ATE insurers .

The CARDINAL lead claimants who had lost before ORG appealed to ORG , which gave judgment on DATE ( ORG v. A.B. and Others [ DATE ] UKSC CARDINAL ) . ORG was divided by CARDINAL judges to CARDINAL as to the application of the CARDINAL Act in this case . The minority ( Lord PERSON , PERSON and PERSON ) held that ORG had confused knowledge with belief and that , although the claimants believed that their injuries were caused by exposure during the nuclear tests at the time they issued their claim , they lacked knowledge of attributability because at that time there was no available scientific evidence . The majority ( ORG , ORG ) agreed with ORG that “ knowledge ” should be equated to belief held “ with sufficient confidence to justify embarking on the preliminaries of the issue of a writ , such as submitting a claim to the proposed defendant , taking legal and other advice and collecting evidence ” . The majority found that each of the CARDINAL appellants had believed that his exposure to radiation had put his health at risk and , on becoming ill , had believed that his illness was attributable to his presence during the nuclear tests , on that each had attained the requisite state of knowledge DATE before the commencement of proceedings . It was conceded before ORG by counsel for the claimants that they lacked evidence with which to establish a credible case that the injuries were caused by the tests . The majority also agreed with ORG approach to the exercise of discretion under LAW of LAW and upheld the refusal to allow the claims to proceed .

All members of ORG agreed that the claims had no real prospects of success . Lord PERSON observed that :

“ The current difficulties facing the veterans in relation to causation appear to me to be very great indeed . The ORG report assists them a little but it does not have the significance that [ their counsel ] has sought to attach to it .

The PERSON report shows that many of the GPE veterans had a raised incidence of chromosome translocation that suggested exposure to abnormal , albeit low level , fall - out radiation . But this was not true of all the veterans assayed . The assays of some show no abnormalities . This is no more than one would expect . Exposure to radiation results from inhalation or ingestion of fall - out . It may result from swallowing sea water while swimming or eating contaminated fish . Thus it can vary from CARDINAL man to the next . The most that can be deduced from the ORG report is that it is probable that individual veterans were exposed to low level fallout . There is currently no evidence that there is any correlation between the raised incidence of chromosome translocation of individual GPE veterans and the incidence of cancer or any of the other conditions of which the claimant veterans complain . ... The PERSON report results simply constitute a biomarker suggesting exposure to radiation .

The most the veterans as a group are currently in a position to establish is that there is a possibility that some of them were exposed to a raised , albeit low level , of fall - out radiation and that this may have increased the risk of contracting some at least of the injuries in respect of which they claim . This falls well short of establishing causation according to the established principles of LANGUAGE law . ...

For these reasons I do not believe that the veterans’ claims have a reasonable prospect of success . ”

Lord PERSON accepted that ORG had wrongly elevated the issue of causation to be the determining factor under section CARDINAL , but nonetheless concluded :

“ It is undesirable that a court which conducts an inquiry into whether a claim is time - barred should , even at the stage when it considers its power under LAW , have detailed regard to the evidence with which the claimant aspires to prove his case at trial . But the CARDINAL claims placed before Foskett J were of particular complexity ; and the nature of the submissions made to him on behalf of the appellants about the meaning of knowledge for the purpose of section CARDINAL ) of the DATE Act led him to undertake , over DATE of hearing and expressed in CARDINAL paragraphs of judgment , a microscopic survey of the written evidence available to the parties , in particular to the appellants , in relation to causation . At all events the result was to yield to ORG an unusual advantage , namely a mass of material which enabled it with rare confidence to assess the appellants’ prospects of success . It expressed its conclusions in terms of the ‘ very great difficulties’ which confronted the appellants in that regard . But , in line with the realistic concession made by [ counsel for the appellants ] in this court , the fact is that , for the reasons set out by Lord PERSON ... their claims have no real prospect of success . In my view it would have been absurd for ORG to have exercised the discretion to disapply CARDINAL so as to allow the appellants to proceed in circumstances in which the next stage of the litigation would be likely to have been their failure to resist entry against them of summary judgment ... ”

On DATE ORG made an order relating to the costs of the appeal , which provided that the applicants should pay the ORG ’s costs of the appeal and that the stay of execution in respect of the previous costs orders should be removed .

Following the above proceedings , CARDINAL of the applicants ( Ms Sinfield ) had an absolute right to go forward to trial , since her case had not been found to be time - barred . The other applicants ( whose cases had been stayed while the CARDINAL test cases went ahead ) had to consider whether , in the light of ORG judgment , their claims were time - barred . A certain number of the applicants’ claims were not time - barred , because , like Mr PERSON , they had become ill within DATE of the commencement of proceedings . This group of applicants therefore wished to proceed to trial . The other applicants , whose claims were prima facie time - barred , took the view that much of the assessment of ORG , in relation to the question whether to exercise the discretion under section CARDINAL of LAW , had been concerned with the difficulties that the claimants would face in establishing causation . However , the applicants considered that there was increasing evidence establishing that the illnesses they suffered were caused by exposure during the tests . This group of applicants also wished to proceed to trial .

Under the terms of the group litigation order , the ORG ’s costs of the preliminary limitation proceedings were paid by all the claimants within the group , in equal proportions , whether or not their claims had been brought out of time . In a letter dated DATE , the ORG insisted that , before pursuing further litigation , the applicants had to obtain ATE insurance to cover them for the ORG ’s costs should their claims fail . It proved impossible for the applicants to obtain such insurance , since the ATE insurers had already made large payments following the costs orders made by ORG and ORG . Legal aid , which was withdrawn in DATE , will not be re - awarded . None of the applicants is in a position to contribute to the funding of the litigation on a private basis . In consequence , none of the applicants’ claims proceeded to trial .

The background to the adoption of LAW ( “ the LAW ” ) is set out in detail in the ORG ’s judgment in ORG and Others v. GPE , DATE , § § DATE , Reports of Judgments and Decisions DATE .

Section QUANTITY of the DATE Act deals with special time limits for actions in respect of personal injuries and , in its relevant parts , reads as follows :

“ CARDINAL ( CARDINAL ) This section applies to any action for damages for negligence , nuisance or breach of duty ( whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision ) where the damages claimed by the plaintiff for the negligence , nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person . ...

( CARDINAL ) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection ( CARDINAL ) or ( CARDINAL ) below .

( CARDINAL ) Except where subsection ( CARDINAL ) below applies , the period applicable is DATE from—

( a ) the date on which the cause of action accrued ; or

( b ) the date of knowledge ( if later ) of the person injured ... ”

Section CARDINAL of the DATE Act further provides for discretionary exclusion of the time limit for actions in respect of personal injuries or death in the following terms :

“ ( CARDINAL ) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

( a ) the provisions of LAW or CARDINAL of this Act prejudice the plaintiff or any person whom he represents ; and

( b ) any decision of the court under this subsection would prejudice the defendant or any person whom he represents ;

the court may direct that those provisions shall not apply to the action , or shall not apply to any specified cause of action to which the action relates .

( a ) the length of , and the reasons for , the delay on the part of the plaintiff ;

( b ) the extent to which , having regard to the delay , the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by LAW or ( as the case may be ) by CARDINAL ;

( c ) the conduct of the defendant after the cause of action arose , including the extent ( if any ) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff ’s cause of action against the defendant ;

( d ) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action ;

( e ) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant , to which the injury was attributable , might be capable at that time of giving rise to an action for damages ;

( f ) the steps , if any , taken by the plaintiff to obtain medical , legal or other expert advice and the nature of any such advice he may have received .

( CARDINAL ) In a case where the person injured died when , because of LAW , he could no longer maintain an action and recover damages in respect of the injury , the court shall have regard in particular to the length of , and the reasons for , the delay on the part of the deceased .

( CARDINAL ) In a case under subsection ( CARDINAL ) above , or any other case where the time limit , or CARDINAL of the time limits , depends on the date of knowledge of a person other than the plaintiff , subsection ( CARDINAL ) above shall have effect with appropriate modifications , and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit .

( CARDINAL ) A direction by the court disapplying the provisions of section CARDINAL ) shall operate to disapply the provisions to the same effect in section CARDINAL ) of LAW DATE ... ”


Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

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

On DATE the applicant attacked a classmate and caused the victim permanent injuries by cutting her face . DATE after the attack , the applicant voluntarily committed herself to a psychiatric facility . On DATE a panel of psychiatrists concluded after an inpatient examination of the applicant ’s mental health that despite having symptoms of a psychopathic disorder she was able to control her actions on DATE of the attack and was competent to stand trial .

On CARDINAL DATE she was convicted of aggravated hooliganism by ORG of GPE ( Выборгский районный народный суд г. PERSON ) and sentenced to CARDINAL years’ imprisonment . In DATE she was released from prison .

DATE the applicant ’s name was on the hospital register of persons suffering from psychiatric disorders . It was removed after remission , with the final diagnosis being disinhibited psychopathy .

On DATE the Primorskiy ORG of GPE ( ORG районный суд г. ORG ) ( “ the ORG ” ) dismissed an application by psychiatrists for a psychiatric examination of the applicant without her consent because there was no evidence she was suffering from a severe psychiatric disorder . In the course of those proceedings , the municipal healthcare authorities , psychiatric facilities and domestic courts exchanged information on the applicant ’s mental health in internal communications .

In DATE the applicant , represented by a lawyer , brought a libel action in ORG against CARDINAL psychiatric facilities and the municipal healthcare authorities . She challenged the validity of her medical records , the fact that DATE she had been on the hospital register of persons suffering from psychiatric disorders , as well as references to various aspects of her mental health in the internal communications between the healthcare institutions and in their submissions to the courts . She also brought other , accessory claims .

The defendants applied to the court for an order for a psychiatric report to confirm the validity of the applicant ’s medical records . However the court refused to grant such an order because the applicant was categorically opposed to it . At the same time , the trial court took account of the provision in LAW that a fact which needs to be proven by an examination by experts is considered to be proven without such an examination when a party to a dispute refuses to take part in the examination or furnish necessary materials .

On DATE ORG dismissed the applicant ’s libel action . The court highlighted that it was for the medical professionals to give any diagnosis about the applicant and concluded that she had failed to prove that there had been any errors in her medical records and or that there had been no grounds to keep her on the hospital register DATE . Accordingly , the references to her medical history and state of mental health in the internal communications between the healthcare institutions had not been libellous . At the same time , ORG ruled in favour of the applicant ’s claim for damages for the failure by CARDINAL of the psychiatric institutions to provide her with a copy of her medical records and awarded her the amount she had claimed of MONEY ( ORG ) .

On CARDINAL DATE the judgment was upheld on appeal by GPE ( ORG городской суд ) .

According to the applicant ’s submissions to the ORG , in DATE there was a criminal investigation against her on suspicion of theft . After spending DATE in detention , the criminal case against her was terminated by the domestic courts because she was ruled incompetent to stand trial . On DATE she was transferred to a psychiatric facility for treatment , without her consent . No documents were provided by the applicant in relation to any of those proceedings .


Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

NORP The applicant , Mr ORG , is a NORP national who was born in DATE and lives in PERSON . He was represented before ORG by Ms P. Borzymowska , a lawyer practising in GPE .

The NORP Government ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant was an activist for the political party “ PERSON . During CARDINAL of the party meetings he met a certain ORG , who had been a member of the same party DATE .

NORP In DATE GPE had some financial problems and was seeking employment opportunities . She asked the applicant whether he could find a job for her . The applicant put ORG in contact with ORG , a deputy in the NORP parliament ( poseł na PERSON ) who was a member of the same party . In DATE ORG went to GPE to meet PERSON They met at first in the PERSON building and subsequently went to the PERSON hotel , where GPE and GPE had sexual intercourse . GPE told GPE that she would have to obey his orders if they were to work together .

In DATE a so - called “ sex scandal ” erupted in GPE . It involved public figures , including activists of the PERSON party who had offered and accepted personal benefits of a sexual nature in connection with exercising public functions .

On DATE the applicant telephoned ORG to ask her whether she had given any information to the press . He referred to an article “ Praca za seks ” ( “ Work for sex ” ) published in the daily PERSON on DATE .

On DATE PERSON was heard as a witness by the prosecutor in the investigation into the scandal . In the course of her interview she described her relationship with PERSON and with the applicant .

On DATE the applicant again phoned ORG to ask her whether she had been heard as a witness by ORG . ORG said that she had not . The applicant also told ORG had experienced difficulties as a result of the investigation into the so - called “ sex scandal ” and the sexual conduct of some PERSON party members . The applicant asked PERSON if he could talk to her again DATE . Their phone conversation was recorded by journalists from the TV channel “ TVN ” , who had invited ORG to participate in CARDINAL of its popular programmes .

The applicant did not telephone ORG again DATE . PERSON tried to reach him CARDINAL times without success and finally left a message on his voice mail .

The applicant phoned ORG on DATE and asked her if she had been heard by the prosecutor DATE . ORG replied that she had not .

On DATE E.Z. phoned the applicant using the telephone number provided by the ORG channel . The conversation was recorded by journalists working for the station . The applicant again asked ORG whether she had been heard by the prosecutor and when she confirmed that she had , he started to instruct her as to how she should testify when she was questioned again . He told her not to accuse anyone and not to disclose that she had had sexual intercourse with PERSON activists . He also suggested that she testify that relations between employees were “ normal ” at FAC . ORG understood these words as amounting to a form of incitement to give false testimony and a form of protection for GPE by withholding information about his sexual affairs with women who were members of ORG .

On DATE the applicant was heard as a suspect by ORG .

On DATE a bill of indictment against the applicant was prepared and lodged with ORG on DATE .

On DATE ORG issued a decision allowing minidiscs containing recordings of the telephone conversations with GPE to be included in the applicant ’s case - file as evidence . The applicant was informed of his right to appeal against this decision within DATE . He did not appeal .

On DATE the ORG found the applicant guilty of attempted obstruction of criminal proceedings and incitement to give false testimony and sentenced him to CARDINAL months’ deprivation of liberty suspended for DATE . The court heard several witnesses including ORG , the journalists who had recorded the conversations , and the applicant himself .

The testimony of ORG given in the investigation phase of the proceedings was consistent with the contents of the recorded telephone conversations . However , in the proceedings before the trial court GPE decided to change her version of events and submitted that the applicant had in fact only requested her not to disclose to the prosecutor that they had had sexual intercourse . The court found the testimony given by GPE in the judicial phase of the proceedings to be not credible . It held that , “ the witness ’s ( ORG ) submissions as regards the change of her version of events as well as her explanation of some of the accused ’s statements made in the telephone conversation are illogical and naïve ” .

The court went on to say that the applicant ’s conviction had been based on the “ entire evidentiary material , in particular on the contents of the telephone conversations with ORG recorded DATE ” . However from the court ’s reasoning it is evident that , after it had found PERSON ’s statements not to be credible , the actual basis for the conviction was the recording of the telephone conversations .

On DATE the applicant ’s lawyer appealed against the firstinstance judgment . He claimed , in particular , that the first - instance court had not respected the principle of free assessment of evidence . He further asserted that there had been a violation of LAW ( see relevant domestic law , below ) since the firstinstance court had based its judgment exclusively on evidence which weighed against him and ignored facts which weighed in his favour . Moreover , it had done so without any detailed reasoning and without indicating which facts it had found to be proved and on what evidence it had based its findings .

In the reasoning set out in the appeal , the applicant ’s lawyer explained that :

“ the court had wrongly assessed the testimony given by ORG and her motivation ; her behaviour was not spontaneous ; it was inspired by journalists who exercised pressure on her and manipulated her ... ”

NORP The applicant ’s lawyer concluded his appeal by the following words :

“ the overall assessment of evidence leads to the clear conclusion that the accused is a victim of carefully planned and precisely executed journalistic provocation and the prohibited acts referred to in the bill of indictment are groundless and find no support in the collected evidence ” .

On DATE ORG upheld the challenged judgment , finding that the first - instance court had assessed the evidence properly , “ in accordance with personal experience and LAW , which sets out the principle of free assessment of evidence ( see relevant domestic law below ) .

A cassation appeal was not available in the present case .

Article CARDINAL § CARDINAL provides as follows :

“ Whoever with the intent to commit a prohibited act directly attempts its commission through his conduct which , subsequently however does not take place , shall be held liable for an attempt ” .

“ Whoever , willing that another person should commit a prohibited act , induces the person to do so , shall be liable for incitement ” .

“ Whoever , in giving testimony which is to serve as evidence in court proceedings or other proceedings conducted on the basis of law , gives a false testimony or conceals the truth shall be subject to the penalty of deprivation of liberty of DATE . ”

“ Whoever obstructs or frustrates penal proceedings by aiding a perpetrator to evade penal liability and especially whoever hides the perpetrator or obliterates physical evidence of the offence or undergoes penalty for a sentenced person shall be subject to the penalty of deprivation of liberty for a term DATE . ”

Article CARDINAL provides as follows :

“ The authorities conducting the proceedings shall make their decisions on the basis of their own conviction , upon all evidence taken assessed at their own discretion , with due consideration to the principles of sound reasoning , knowledge and personal experience . ”

Article CARDINAL provides , in so far as relevant , as follows :

“ The reasoning [ of a judgment ] should contain :

indication which facts have been found by the court to be proven or unproven , on what evidence it based its findings in this respect and reasons for which it did not accept the evidence to the contrary . ”