CASE OF TSARTSIDZE AND OTHERS v. GEORGIA

Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 14+9-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion)

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

The applicants , Mr PERSON , Mr PERSON , Mr PERSON ( applicants ORG . CARDINAL , case no . CARDINAL ) ; Mr PERSON , Mr PERSON ( applicants nos . CARDINAL - CARDINAL , case no . CARDINAL ) ; Mr PERSON , Mr PERSON ( applicants nos . CARDINAL - CARDINAL , case no . CARDINAL ) ; Mr PERSON , PERSON , PERSON ( applicants nos . CARDINAL , case no . CARDINAL ) ; and PERSON , Mr PERSON and Mr PERSON ( applicants nos . CARDINAL - CARDINAL , case no . CARDINAL ) are all GPE ’s Witnesses . Their application to the ORG relates to CARDINAL cases of religiously motivated aggression to which they were allegedly subjected in GPE at various times . The events described in cases CARDINAL . CARDINAL and CARDINAL were the subject of the ORG ’s examination in the case of GPE and Others v. GPE ( no . CARDINAL , DATE ) .

The following account of the facts is based on the ORG submissions .

NORP This part of the application concerns the applicants Mr PERSON , Mr PERSON and Mr PERSON ( applicants nos . CARDINAL ) .

On DATE nineteen coaches and several cars with ORG headed to PERSON to attend the convention at Mr PERSON ’s premises . The police set up checkpoints along the route and blocked the roads , preventing the GPE ’s Witnesses from reaching their destination . At the same time , the police authorised a coach containing extremist members of ORG , led by PERSON , also known as Father PERSON ( see Members of the Gldani Congregation of GPE ’s Witnesses and Others v. GPE , no . CARDINAL/CARDINAL , LAW , CARDINAL DATE ) , to continue their journey to ORG in order to attack and damage the site within Mr PERSON ’s property where the GPE ’s Witnesses were to gather . The attackers destroyed objects for religious use and seized items belonging to others . The police officers who were in attendance refused to intervene . Property belonging to ORG , including CARDINAL tonnes of religious literature was confiscated . The religious literature was burnt in the street . Other items ( tents , CARDINAL benches , and other items ) were distributed to local residents by Father PERSON ’s supporters ( see GPE and Others , cited above , LAW DATE ) .

According to estimates made on DATE and DATE , the stolen and destroyed equipment and material was worth QUANTITY ( ORG ) and the QUANTITY of stolen and burnt religious literature was worth QUANTITY .

On DATE applicants nos . CARDINAL , other ORG , the representation of ORG in GPE and ORG , lodged an administrative complaint with ORG in GPE against ORG , the governor of GPE , the PERSON chief of police and his deputy and CARDINAL other police officers involved in the case . The applicants sought compensation for the pecuniary and non - pecuniary damage caused by the ORG ’s agents .

On DATE the FAC decided to consider ORG as a third - party intervener and referred the case to ORG for examination .

On DATE ORG dismissed the ORG complaint as ill - founded . The court considered it to have been shown that individuals acting under the orders of Father PERSON had attacked Mr PERSON ’s property and ORG . As to the GPE police , the court held that they had not been informed that a convention was due to be held on DATE at Mr PERSON ’s home and had been taking part on that date in an anti - drugs operation in the area bordering GPE . The court found that the defendants who were police officers had gone to the scene only after the attack in question and had only been able to observe the damage that had already been done . They could not therefore have contributed by being passive or taking part in the acts of religious aggression against the applicants .

On DATE the applicants lodged an appeal with ORG complaining that the court of first instance had ignored the fact that the police had turned back the GPE ’s Witnesses but had allowed Father PERSON and his supporters to go through the same checkpoints . The applicants argued that their witness statements had been disregarded by the first - instance court in favour of unsubstantiated statements by the police officers . The applicants also challenged the status of third - party intervener granted to ORG in spite of the fact that it had been cited as a defendant .

On DATE the regional court dismissed the applicants’ appeal on the same grounds as the first - instance court .

On DATE an appeal on points of law by the applicants was dismissed by ORG , which considered that the applicants had not demonstrated an “ intentional ” or “ negligent ” breach of professional obligations by the police officers .

This part of the application concerns Mr PERSON and Mr PERSON , applicants nos . CARDINAL and CARDINAL .

On DATE , when CARDINAL members of ORG of GPE ’s Witnesses were preparing to hold a meeting in GPE at Mr PERSON ’s home , CARDINAL plainclothes police officers entered the property . They included QUANTITY . and PERSON , who , DATE , had allegedly taken part in the attack on the Jehovah ’s Witnesses at Mr PERSON ’s property ( see case no . CARDINAL ) , and ORG The police officers stated that the meeting could not go ahead . Using insulting language towards the participants , they ordered them to leave the LOC . They confiscated religious books and PERSON belonging to ORG .

Mr PERSON and Mr PERSON , a pastor , were taken to the police station . There , they were insulted by Officer PERSON , who ordered Mr PERSON to leave PERSON and never to return , otherwise he would face serious problems . PERSON . ordered Mr PERSON not to hold any more religious gatherings at his home if he wished to avoid problems with the police . Mr PERSON was then forced into a car and driven away from PERSON .

On DATE the CARDINAL applicants , together with the representation of ORG in GPE and ORG , lodged an administrative complaint with ORG against ORG and the police officers involved . As well as identifying the QUANTITY police officers , the applicants also gave the number plates of the QUANTITY vehicles in which the police officers had arrived . They asked that ORG make a public apology , in accordance with LAW , and bring disciplinary proceedings against its staff . The applicants also asked that they be paid compensation in respect of non - pecuniary damage and that a directive be sent to all police stations in the country , saying that the rights of GPE ’s Witnesses were to be respected .

On DATE the case was sent to ORG , which sent it in turn to ORG on DATE .

Questioned by that court , the applicants and other people who had attended the meeting confirmed the above - mentioned facts . Officers S.Kh . and ORG denied the accusations . While ORG claimed that he had never entered Mr PERSON ’s property on the date in question and was seeing the applicants for the first time , LANGUAGE . stated that he had DATE seen ORG and other police officers , who were his subordinates , in front of Mr PERSON ’s house . He had gone to see what was happening . PERSON had explained that a group of people had informed the police that a meeting of ORG was due to be held and had asked the police to intervene before they did so themselves . The police officers had therefore been obliged to go to the LOC . According to QUANTITY . , ORG had entered Mr PERSON ’s property in order to ask him not to hold the meeting , so as to avoid a clash with the group of individuals in question . PERSON . stated that he had then continued his journey and denied having taken the CARDINAL applicants to the police station . He acknowledged , however , that GPE , Mr PERSON and Mr PERSON had been taken together “ somewhere ” . According to QUANTITY . , if the applicants had been taken to the police station on DATE concerned they would have been questioned , and their visit to the police station duly registered . He criticised the applicants for failing to lodge a complaint with the police chief if they had indeed been taken unlawfully to the police station .

The CARDINAL applicants , on the contrary , submitted that they had been taken to GPE . ’s office and that he had ordered that they be required to give written undertakings , respectively , to leave PERSON and for Mr PERSON not to allow religious meetings at his home . S.Kh . denied those allegations also .

On DATE the proceedings brought by the applicants were dismissed as ill - founded . In the court ’s opinion , it had not been established that the police officers in question had prevented the religious meeting from being held at Mr PERSON ’s home , confiscated the religious books and taken the CARDINAL applicants to the police station in order to forbid them from performing religious rites in accordance with their faith . With regard to the statements made by CARDINAL eyewitnesses , the court held that they were not reliable because they had been made by people taking part in the meeting , who had an interest in supporting the ORG complaint . Moreover , the statements made by the complainants had been completely rejected by the police officers . Consequently , the court found that there was nothing to prove that the police officers had failed in their professional obligations , within the meaning of LAW .

On DATE the ORG upheld the judgment of DATE , on the same grounds as those used by the lower court .

On DATE ORG , ruling in written proceedings , dismissed an appeal by the applicants on points of law . It concluded that the applicants had failed to prove either an intentional or a negligent breach of duties by the respondent police officers .

This part of the application concerns Mr PERSON and PERSON ( applicants nos . CARDINAL and CARDINAL respectively ) .

On DATE , while in possession of religious tracts , Mr Dzamukov was stopped in the street in GPE by CARDINAL uniformed police officers , GPE and GPE . His bag with religious literature was confiscated and he was taken to the police station . The applicant was struck by several police officers , including GPE . , before being released . Before leaving the police station , the applicant asked that his belongings be returned to him . In reply , PERSON . came up to him and attempted to strangle him with his tie , ordering the applicant to get out of his sight . Outside the station , police officers blocked his path and threatened to beat him with their truncheons . Seeing that the applicant refused to leave and insisted that the confiscated religious literature be returned , a police officer came up and threw his Bible in his face .

On returning home , the applicant and his wife noticed that his chest was red . He also found it painful . His wife immediately went to the police station , protesting about the way her husband had been treated , and asking for the return of the confiscated belongings . She was , in turn , insulted and chased out of the LOC .

On DATE , Mr Gabunia , applicant no . CARDINAL , was walking in the street in LOC with religious tracts . He gave one to GPE , who was accompanied by another police officer . In response , ORG reprimanded him , stating that his conduct was not worthy of a NORP . PERSON , the second police officer , punched him in the stomach and , after he had fallen to the ground , pulled his bag away from him . The police officers emptied the bag and tore up the religious literature inside . They kept CARDINAL Bibles for themselves . When the applicant insisted that they return his Bible , PERSON threatened to put him in his car and dump him in LOC .

On DATE the applicants lodged an administrative complaint with ORG against ORG , the chief and deputy chief of LOC police and police officers PERSON and GPE Claiming that their rights guaranteed by LAW and CARDINAL of the Convention had been breached , they asked that ORG issue a public apology and bring disciplinary proceedings against CARDINAL of its staff who , in their opinion , had failed to comply with their professional duties , as provided for in LAW . The applicants also asked to be compensated in respect of pecuniary and nonpecuniary damage , in application of LAW .

Questioned by the court , the applicants confirmed the abovementioned events . Mr PERSON described in detail the place where he had met the QUANTITY police officers , and stated that they had been in uniform and wore badges . He also provided information about the make , colour and registration number of their car . Mr Dzamukov provided the registration number of the car in which he had been taken to the police station . His wife gave the registration number of the vehicle in which GPE . had followed her . , while PERSON , a witness to the incident at the police station , confirmed that she had seen Mr Dzamukov there . PERSON . denied the allegations , stating that he had been on leave on DATE in question and had not been in GPE . PERSON and ORG also denied the allegations , claiming that they were seeing the applicants for the first time .

On DATE the ORG complaint was dismissed as illfounded . The court pointed to the rights guaranteed by LAW and noted that , historically , no religion had ever been persecuted in GPE . It further noted the following :

“ It is also well known that many of GPE ’s Witnesses blatantly violate the requirements of LAW and frequently impose their opinion and belief on others , thus violating their rights . ”

Then the court set aside the CARDINAL witness statements in favour of the applicants on the ground that those people had not been eyewitnesses . In addition , it noted the following :

“ The first CARDINAL witnesses are GPE ’s Witnesses and the LOC friends , and they have an interest in having the case decided in the ORG favour . ”

As the applicants had not submitted any other valid evidence ( medical reports , torn - up religious literature , or other items ) , their allegations were held to be ill - founded . Lastly , the court noted that PERSON had waited DATE before adding PERSON . ’s name to his complaint .

The applicants lodged an appeal , stating that submitting the destroyed religious literature to the court would have had no valid evidential value , since it would not have sufficed to prove that the police officers concerned had torn up the literature on the date in question . The applicants also explained that it had not been necessary to obtain a medical report , given that they had not received serious wounds or injuries . That did not , however , alter the fact that they had been struck by the police officers . Furthermore , in their opinion , the insults directed against them on account of their faith had been sufficient to establish that the police officers had been negligent in carrying out their professional duties .

On DATE ORG dismissed the applicants’ appeal on the same grounds as the first - instance court . In particular , it took account of the fact that the police officers had denied the allegations and that the applicants had suffered no physical injuries . It concluded that , in the absence of sufficient evidence to the contrary , there had been no damage to the applicants’ dignity or any infringement of their right to freedom of religion , which ruled out the application of LAW and the granting of compensation .

According to the applicants , the appeal court took into consideration an oral statement by ORG , who had claimed that he did not recognise a white car with the registration number DAQ CARDINAL , which Mr PERSON had nonetheless identified as being that in which the CARDINAL police officers had been patrolling at the time of the incident in question . After the hearing , however , ORG had left in that same vehicle , which had been parked in front of the regional court . The applicants took a photograph , and attached it to their appeal on points of law . They complained , in particular , that ORG ’s denial had been accepted by the first - instance court and on appeal without any supporting evidence .

After postponing the hearing several times on account of the absence of the defending parties , ORG examined the ORG appeal on points of law in written proceedings , and dismissed it on DATE . It criticised the applicants for failing to bring criminal proceedings against the police officers . ORG stated that acknowledging that the police officers had failed in their professional obligations in the impugned manner ( attacking and assaulting the applicants ) would be equivalent to recognising , in the context of administrative proceedings , their criminal guilt , which would be contrary to the law . At the same time , if the accusation against the police officers had indeed been confirmed in criminal proceedings , the applicants would have been entitled to compensation , and also to a public apology .

ORG judgment was served on the applicants on DATE .

This part of the application concerns Mr PERSON , PERSON PERSON and PERSON ( applicants nos . CARDINAL respectively ) .

On DATE a group of ORG was returning from a religious meeting in the village of GPE , GPE region . At a bus stop they met PERSON . , the deputy governor of the town of PERSON , PERSON , the governor of PERSON , and CARDINAL local residents . CARDINAL of the latter , assaulted Mr PERSON , wounding him on the cheek , and tore a bag containing religious literature and other personal effects from his hands . Then he struck the CARDINAL applicants on the head with a shoulder strap ripped from Mr PERSON ’s bag . The CARDINAL governors , who watched the attack , directed insults at the victims . In the end they asked the assailant to desist and left with him ( see GPE and Others , cited above , § PERSON ) .

On DATE the applicants filed an administrative complaint with ORG against the PERSON regional administration , the local police chief and the CARDINAL governors concerned . The applicants asked that the officials apologise publicly and that the regional administration take disciplinary proceedings against them . They also claimed compensation in respect of non - pecuniary damage ( Article CARDINAL § CARDINAL of LAW ) .

On DATE the court dismissed the ORG complaint on the grounds that the governors had not been under a legal obligation to ensure the maintenance of public order . It concluded that it had not been shown that they themselves had organised the attack in question or had personally attacked or assaulted the applicants . The decision was upheld on appeal by ORG on DATE . The regional court held that ensuring the maintenance of public order did not amount to a “ pressing obligation ” on the governors .

On DATE ORG dismissed an appeal on points of law by the applicants , using the same grounds as the regional court .

This part of the application concerns Mr PERSON , PERSON and PERSON ( applicants nos . CARDINAL - CARDINAL ) .

On DATE a group of NORP religious extremists led by PERSON PERSON , a leader of the GPE movement , burst into PERSON ORG ’s flat , where a congregation of ORG was holding a meeting . The assailants ordered ORG , whom they described as NORP - insulters and NORP , to hand over their religious literature and to leave the LOC . The GPE ’s Witnesses protested , referring to provisions of the LAW , but were nonetheless obliged to comply . PERSON was insulted by Mr PERSON , who then pulled on his tie to strangle him .

After confiscating religious literature from the people present in the flat , the attackers opened the cupboards and took out similar literature , first throwing it on the floor , and then out of the window . The benches used by the Jehovah ’s Witnesses during the meeting were also thrown out of the window .

The attack was recorded on video . Moreover , an individual wearing civilian clothes , who , according to the applicants , was a police officer named PERSON , appears on the screen . He stands in the courtyard , observes the Jehovah ’s Witnesses being chased from the flat and allows a child to leave , carrying a bench that has been thrown from a window .

The applicants assessed the pecuniary damage caused by the attack in question at about ORG CARDINAL ( audio - visual equipment , religious literature , benches , and other items ) . They submitted an audit report , dated DATE , in support of their claim .

On DATE after the above incident the same group of attackers publicly burned the religious literature taken from PERSON home at the main market in GPE . That scene was also captured in the abovementioned recording . According to the applicants , the police officers patrolling the market did not react .

DATE . On DATE the Jehovah ’s Witnesses who had been victims of the attack , including the CARDINAL applicants named above , as well as the representation of ORG in GPE and the Union of GPE ’s Witnesses , filed an administrative complaint with ORG against ORG , Mr Th . A. , the chief of NORP police , Mr GPE , the head of the police station involved in the case , and Mr GPE , a police officer . They alleged that the officials had failed in their professional obligations and had breached ORG CARDINAL , CARDINAL and CARDINAL of the Convention .

NORP In particular , the applicants asked that ORG issue a public apology , in accordance with section CARDINAL(CARDINAL ) of LAW , and bring disciplinary proceedings against the above - named police officers . The applicants also claimed compensation in respect of pecuniary and non - pecuniary damage , in application of LAW , and asked that a directive be sent to all police stations in the country , stating that the rights of GPE ’s Witnesses were to be respected . Drawing the court ’s attention to the spread of violence against ORG Witnesses throughout the country , they asked that it rule on their case in accordance with the law , as , in their opinion , a proper judicial decision could help to halt such violence .

The court heard the CARDINAL applicants and other GPE ’s Witnesses who had been victims of the attack . They all complained about the passivity of the police officers present at the scene . PERSON stated that when the attack had begun , he had gone to a police station located CARDINAL metres from his building . After some delay , CARDINAL police officers had accompanied him back to the scene . He had seen that books and furniture were being thrown out of the window . The police officers had taken no action . He had then run up the stairs to his flat to retrieve some money that he kept in a cupboard . He had found that the cupboard door had been broken and that CARDINAL had been stolen . Mr PERSON complained that the police officers had not intervened to prevent the violation of his private property or to protect the victims .

PERSON stated that immediately after leaving the flat on the attackers’ orders , he had gone to the police station , where he had learned that the alarm had already been raised . He had asked that police officers return with him , in order to “ intimidate ” the attackers . The officers had refused to accompany him .

Mr PERSON stated that during the attack he had telephoned the police from the flat , but that the person on the other end of the telephone had hung up immediately . He had then been obliged to comply with the orders to leave the flat . He had managed to grab his bag back from an attacker who had taken it .

On DATE the court decided to strike the case out of its list of cases , on the basis of a letter , allegedly signed by the applicants , withdrawing their complaint . On DATE they lodged an appeal , stating that the signatures on the letter in question had been forged and that they had never withdrawn their complaint . On DATE the appeal court overturned the decision of CARDINAL DATE and proceedings resumed .

Questioned by the Mtatsminda - Krtsanisi District Court , a representative of ORG argued that it had not been established that the police had been present at the scene and asked that the ORG complaint be dismissed . The police officers themselves did not attend the hearings on DATE . Obliged to rule in their absence , on DATE the court dismissed the complaint as ill - founded . It considered it established that the applicants had been attacked by a group of individuals led by Mr Bluashvili on DATE . It considered , however , that the applicants had not demonstrated that the police had been present at the scene or that they had watched passively as acts had been committed against property and the applicants’ rights to freedom of religion . Accordingly , it had not been established that the police officers had failed to perform their professional duties within the meaning of Article CARDINAL § CARDINAL of LAW . Nonetheless , in the same decision , the court acknowledged that , after having been informed of the attack , the police officers had gone to the scene , which had resulted in a decision to place the attackers under investigation . According to the court , in the context of the latter criminal proceedings , it would be lawful for the applicants to submit a claim for compensation against the individuals who had infringed their rights . The decision made no reference to the burning of literature at NORP market .

On DATE the NORP ORG upheld the first - instance judgment , repeating the grounds used in it . Neither the representative of ORG nor the police officers appeared .

On DATE ORG dismissed an appeal on points of law lodged by the applicants . The court concluded that the fact of a breach of duty by the police , either intentionally or by negligence , had not been proven .


CASE OF FERNANDES DE OLIVEIRA v. PORTUGAL

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in PERSON .

The applicant ’s son , PERSON , was born in DATE . He had a history of mental disorders and of alcohol and drug addiction , and since DATE had spent several periods in ORG ( “ the ORG ” ) in ORG : from CARDINAL to CARDINAL DATE ; from DATE to CARDINAL DATE ; from CARDINAL to DATE ; from DATE ; from CARDINAL DATE ; from DATE to DATE ; and from DATE .

According to PERSON ’s clinical records , in DATE doctors told the applicant that she should seek an order for her son ’s compulsory confinement . During his hospitalisation in DATE the doctor treating PERSON instructed that he must not be permitted to leave the unit in which he was hospitalised .

During CARDINAL of the periods he spent in hospital , PERSON was authorised to spend DATE at home with his family DATE during the period from DATE to DATE , and CARDINAL weekends during the period from DATE . During those CARDINAL periods , PERSON also escaped from the ORG premises several times and sometimes went to the applicant ’s house .

On DATE PERSON was voluntarily admitted to the ORG , upon medical advice , because he had attempted to commit suicide .

On DATE PERSON went home for DATE to spend GPE with the applicant and other members of his family , despite the reluctance of the doctor .

At TIME the applicant took PERSON to the emergency ward of ORG because he had drunk a large amount of alcohol . According to the observation record completed by the emergency services , PERSON had behaved recklessly during DATE because he had got drunk . They added that although PERSON had a history of mental weakness , depressive episodes and recurrent suicide attempts , those characteristics had not been observed DATE . PERSON was subsequently sent back to the same HSC ward in which he was hospitalised .

On DATE PERSON was kept under medical observation for the whole day . He was given medication and his state of health improved . He got up to dine and to welcome visiting family members .

On DATE the hospital staff noted that TIME PERSON ’s behaviour had been calm and he had been walking around the unit in which he had been hospitalised . He had had lunch and an afternoon snack .

At TIME the applicant called the hospital . She was told to call back later , during the afternoon snack , as her son was not inside the building at that time . She was assured that TIME he had been standing at the door and he looked fine .

At TIME it was noticed that PERSON had not appeared for dinner , and a nurse informed the head nurse of his absence . The hospital staff then initiated searches in the areas of the ORG premises where patients were allowed to walk around freely , such as the cafeteria and the park .

At TIME the coordinating nurse ( enfermeiro coordenador ) telephoned the applicant and told her that PERSON had not shown up for dinner .

At some time TIME the hospital reported PERSON ’s disappearance to ORG ( ORG ) and the applicant .

It is not known at what time PERSON left the hospital LOC and followed a footpath towards the applicant ’s house . At QUANTITY he committed suicide by jumping in front of a train near the ORG LOC .

On DATE the applicant lodged a civil action with ORG do ORG ) against the ORG under LAW ( ação de responsabilidade civil extracontratual por ato de gestão pública ) , seeking pecuniary and non - pecuniary damages of MONEY ( ORG ) .

The applicant claimed that her son had been treated at the ORG for mental disorders on several occasions ; the first actual hospitalisation had been in DATE . He had been admitted to the hospital on DATE because he had attempted to commit suicide . The fact that her son had been able to leave the hospital LOC on DATE during his hospitalisation had led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties . Because of his suicide attempts and mental condition , her son should have been under medical supervision and the hospital staff should have prevented him from leaving the hospital premises . She further claimed that the ORG should have erected fencing around the boundaries of its LOC in order to prevent patients from leaving . The fact that those duties had not been complied with reflected the poor organisation of the ORG services . Lastly , she argued that the ORG lacked a mechanism for checking the presence of patients and an emergency procedure capable of detecting a patient ’s absence , which would allow the hospital to take the measures required to ensure that patients returned safely .

On DATE the court gave a preliminary decision ( despacho saneador ) , specifying which facts were considered to be established and which remained to be established .

On DATE the court ordered that an expert report be drawn up on PERSON ’s clinical condition and the supervision measures required by that condition .

On DATE a psychiatrist appointed by ORG ) submitted his report , the relevant parts of which read :

Although alcohol dependence was the predominant diagnosis , several other diagnoses were considered . In particular , dependent personality ( personalidade dependente ) ; delirious outbreaks ( surto delirante ) ; schizophrenia ; manic - depressive psychosis ( psicose maníaco - depressiva ) ...

PERSON ’s clinical history enables us to consider him an ill person with recurring relapses in excessive alcohol consumption ... but also another kind of symptomatology ...

There is no detailed reference in his clinical records to his psychopathological condition on DATE ...

The [ plaintiff ’s ] son suffered from disorders which caused depressive behaviour with a significant inclination to suicide .

Taking into account the clinical documents , his clinical condition may have led to another attempt to commit suicide , which turned out to be fatal .

In addition , the polymorphism of the patient ’s psychiatric condition should be emphasised . A psychopathological condition such as the patient ’s has a bad prognosis and suicide is frequently preceded by an attempt ( or attempts ) to commit suicide . ... Indeed , it must be clarified that ... it should also be considered that the hypothesis of [ his ] diagnosis could be of a borderline personality disorder [ perturbação de personalidade borderline ] ...

There is reference to a multiplicity of diagnoses , all of them capable of enhancing the risk of the patient ’s suicide ( and also of suicidal behaviour ) .

The clinical history and psychopathological framework [ quadro psicopatológico ] , for the reasons already mentioned , would predict future suicidal behaviour ; thus the occurrence of suicide is not surprising .

With regard to prevention , containment and surveillance measures must without a doubt be adopted . But with a patient like this one , these measures are difficult to adopt ( see for example his requests to be discharged despite the doctor ’s opinion , which is substantiated ) and never enough because of the high potential for suicide .

The fact that the patient had been on antidepressant treatment for DATE , had wandered around the hospital without ever endangering his life ... does not mean that the probability of that event ( suicide ) was negligible . However , it was hardly avoidable . ”

The first hearing took place on DATE . The applicant and the psychiatrist who had issued the medical opinion gave evidence at the hearing .

At CARDINAL hearings the court heard evidence from different witnesses , inter alia , the applicant ’s daughter – PERSON ’s sister ; nurses , doctors and medical auxiliaries who had worked for or were still working for the ORG , some of whom had started their shift at TIME on DATE ; a social worker employed by the ORG since DATE , who had had contact with PERSON ; and the train driver . The court also analysed several documents attached to PERSON ’s clinical file from the ORG .

On DATE the court conducted an on - site inspection .

On DATE the court held a hearing at which it adopted a decision concerning the facts .

On DATE ORG delivered a judgment in which it ruled against the applicant . If found that although her son had been suffering from a mental disorder , there was no causal link between his wholly unexpected suicide and an alleged violation of the hospital staff ’s duty of care . It noted , in particular , that the applicant ’s son had been suffering from a psychiatric disorder which had never been properly diagnosed , either because the symptoms were complex or because he had been addicted to alcohol and drugs . In this regard , it pointed out that over DATE the applicant ’s son had been diagnosed with schizophrenia and depression . However , only after his death and as a consequence of an expert opinion requested from ORG during the proceedings ( see paragraph CARDINAL above ) was there an agreement that he had been suffering from a severe personality disorder . The court established that he had last been admitted to hospital after a suicide attempt . However , it considered that despite the possibility that people diagnosed with mental diseases such as that of the applicant ’s son might commit suicide , during DATE before his death he had not shown any behaviour or mood which could have led the hospital staff to suspect that DATE would be different from DATE . The court thus concluded that the hospital staff could not have foreseen the suicide of the applicant ’s son and that his behaviour had been absolutely unexpected and unpredictable . With regard to the applicant ’s argument that the hospital should have supervised her son more effectively and erected fences or other barriers around the hospital LOC , the court pointed out that the current paradigm in the treatment of mentally ill patients was to encourage social interaction . The existence of fencing would lead to the stigmatisation and isolation of mentally disabled patients . In the same way , any supervision of patients had to be carried out discreetly . The ORG had a surveillance procedure in place which consisted of verifying the ORG presence at meal and medication times ; this was in compliance with the most recent psychiatric science and respected the ORG right to privacy . With regard to the applicant ’s argument that the emergency procedure was non - existent , the court noted that it consisted in alerting the police and the patient ’s family . Therefore , the court found that there had been no omission in the duty of care on the part of the hospital .

On CARDINAL DATE the applicant appealed to ORG , claiming that the first - instance court had wrongly assessed the evidence , that its findings of fact had been incorrect , and that it had wrongly interpreted the law .

On DATE the Attorney ORG attached to ORG , called upon to issue an opinion on the appeal , held that the first - instance judgment should be reversed . In their opinion , given that PERSON ’s medical record stated that he had attempted to commit suicide on different occasions and considering that he had last been admitted to hospital because of a suicide attempt , a new attempt to commit suicide was likely and should have been foreseen . They noted that the hospital had failed to implement a supervision regime capable of preventing the applicant ’s son from leaving the hospital LOC . They also argued that the increased monitoring of the patient was part of the hospital ’s duty of care and did not detract from the “ open door ” regime . They concluded that the monitoring measures put in place by the ORG were not adequate for an establishment categorised as a psychiatric hospital or for a patient with PERSON ’s characteristics .

On DATE ORG dismissed the applicant ’s appeal by CARDINAL votes to CARDINAL , upholding the legal and factual findings of ORG . ORG held that the ORG had not breached any duty of care , as there had been no indication which could have led the hospital staff to suspect that the applicant ’s son would try to commit suicide , namely by leaving the hospital LOC . ORG took into account that during previous periods of hospitalisation the applicant ’s son had also left the hospital LOC , and that no link had been established between those “ escapes ” and a particular risk of suicide in so far as they had only been able to establish the existence of a single suicide attempt , on DATE . ORG considered that the counting of patients at meal and medication times was sufficient and had allowed the hospital staff to verify PERSON ’s attendance during lunch and TIME snack on DATE . It concluded that there had been no anomaly in the functioning of the ORG , nor could any anomaly be attributed to either the lack of security fences or walls , or the method of counting patients .

In a dissenting opinion , CARDINAL of the judges argued that the hospital should have secured the LOC in some way in order to fulfil its duties of care and supervision . By not doing so , it had allowed patients to leave easily without being discharged , thus breaching those duties . As such , that omission had been the cause of the “ escape ” and suicide of the applicant ’s son .

The ORG is located outside GPE on QUANTITY of land , distant from any urban or industrial areas . It is part of ORG and ORG .

According to an on - site inspection made by ORG on DATE in the course of the proceedings against the hospital , the ORG has CARDINAL buildings dedicated to each hospital department . The grounds of the ORG do not have security fences or walls of any other kind . The buildings are surrounded by green areas with trees and other vegetation , and the different buildings are accessed by means of roadways ( arruamentos ) and paths ( passeios ) , which are also surrounded by trees and other vegetation . The main entrance to the ORG has a barrier ( cancela ) and a security guard . CARDINAL of the possible exits from the hospital LOC leads to a shortcut towards a railway station platform ( apeadeiro ferroviário ) . This shortcut is accessed by taking the road behind building no . CARDINAL . The station platform is around a fifteen to twenty minutes’ walk from that part of the ORG ’s premises .

Pursuant to the guidelines prepared by the ORG , meals are taken in the hospital cafeteria and patients must remain there until DATE . Patients are not allowed to leave the department without informing the relevant nurse in advance . An afternoon snack is usually provided at TIME

According to articles which have been published in the media in DATE , several patients have managed to escape from the ORG ’s LOC since DATE . Some of them were found and taken back to the hospital and others were found dead . For example , different local and national media have reported as follows :

( i ) on DATE the body of a patient who had escaped DATE was found close to the hospital LOC ( in ORG ) ;

( ii ) on DATE a man escaped from the ORG and was hit by a car after jumping in front of it ( in PERSON ) ;

( iii ) on DATE the body of a patient who had escaped from the hospital DATE was found in a river ( in ORG ) ;

( iv ) on DATE a patient who had been involuntarily hospitalised in the ORG escaped ( in ORG ) ;

( v ) in DATE CARDINAL different patients escaped from the hospital ; CARDINAL of them was located by the police after stealing a car and another was found dead in a nearby river ( in bombeirospontopt ) ;

( vi ) on DATE a patient escaped from the ORG ’s premises and attacked CARDINAL police officers with a hoe ( in ORG ) ;

( vii ) on DATE CARDINAL patients escaped from the ORG and stole a car by ousting the driver ( in TviCARDINAL ) .


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

The applicants , PERSON , PERSON and Ms PERSON , are NORP nationals who were born in DATE , DATE and DATE respectively and live in PERSON . They were represented before the ORG by lawyers of ORG . ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

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

The applicants are close relatives of Mr PERSON ( also spelt PERSON ) PERSON , who was born in DATE , PERSON , who was born in DATE and ORG ( also known as ORG Ansarova , who was born in DATE . Mr PERSON and PERSON are married , and PERSON is their daughter . The first applicant is the mother of Mr PERSON and the second applicant is his sister . The third applicant is the mother of PERSON .

At the material time , Mr PERSON lived with his wife and daughter in a block of flats in FAC in PERSON . He used to work at a local police station , but became unemployed shortly before the events .

According to the applicants , at TIME on DATE an ORG accompanied by a convoy of military vehicles arrived in FAC , PERSON . A large number of masked servicemen in camouflage uniforms armed with machine guns got out of the vehicles , cordoned off the area and broke into the family ’s flat . The servicemen spoke unaccented NORP . They took Mr PERSON and his wife and daughter outside , put them in the ORG and drove away .

The applicants have not seen their CARDINAL relatives since DATE .

The applicants did not witness the abduction ; their account is based on their relatives’ and ORG recollection of the events .

The Government did not contest the facts as presented by the applicants , but at the same time pointed out that there was no unequivocal evidence confirming the alleged involvement of ORG servicemen in the incident .

On an unspecified date in DATE or DATE the applicants complained of their relatives’ abduction to the NORP district department of the interior ( ROVD ) in PERSON . On DATE it opened a search file ( no . CARDINAL ) in respect of Mr PERSON . It is unclear whether files were also opened in respect of PERSON and PERSON .

It is also unclear whether any criminal investigation into the abduction was initiated DATE . According to the applicants , owing to the overall instability in the region at the material time , an investigation was opened at some point in DATE , but then the criminal case file was lost in unknown circumstances .

Following a complaint by the first applicant , on DATE the PERSON town prosecutor ’s office opened a criminal case ( no . CARDINAL ) to investigate the abduction .

On DATE the first applicant was questioned and granted victim status in the criminal case . She stated that on an unspecified date she had learnt from Mr PERSON neighbours that on DATE CARDINAL armed men had taken away her son , his wife and their daughter . His wife PERSON had been in a dispute with a criminal gang leader , “ GPE , whose gang had carried out criminal activities in the area and who had promised to take revenge on her . DATE after that conflict the family had been abducted . According to the applicants , at some point later “ FAC had been killed as a result of a blood feud .

On DATE the investigation was resumed and on DATE the first applicant was questioned again . She reiterated her previous statement .

On DATE the investigation was suspended . The applicants were informed thereof .

DATE and DATE the applicants did not contact the authorities .

On DATE the third applicant complained to ORG of her relatives’ abduction . On CARDINAL DATE her complaint was forwarded to ORG .

On DATE the first applicant complained to ORG in PERSON , requesting that the investigation be resumed and carried out effectively .

On DATE the investigation was resumed and several witnesses were questioned ; no new information was obtained .

On DATE the investigation was suspended again . The applicants were informed thereof .

On DATE ORG in PERSON rejected the ORG complaint of CARDINAL DATE , stating that the investigation had been resumed on DATE .

The investigation is still pending .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

On DATE the applicant was arrested on suspicion of theft of documents and death threat and later charged with several counts of murder and robbery . While in police custody , he was allegedly subjected to beatings .

On DATE the applicant was placed in remand prison NORP in GPE .

After an initial period of detention in ordinary cells of the prison , on DATE the applicant was transferred to a special section designed for detention of persons sentenced to life imprisonment . The applicant stayed in several cells of that section until his departure to a correctional colony on DATE .

The parties disagreed on many aspects of the material conditions of the applicant ’s detention during that period .

In the ORG ’s submission , the applicant was accommodated in CARDINAL cells :

cell CARDINAL , from DATE to CARDINAL September CARDINAL ;

cell CARDINAL , from DATE to CARDINAL DATE ;

cell CARDINAL , from DATE ;

cell CARDINAL , from DATE to DATE .

All cells measured QUANTITY m and had CARDINAL sleeping places . The applicant stayed in them either alone or with another detainee , but the design capacity was never exceeded .

Each cell had a window covered by metal bars which allowed sufficient access to natural light and fresh air . CARDINAL light bulbs , CARDINAL for TIME and another for TIME - time lighting were installed in the cells . Running water was available at all times . Toilet pans were located at CARDINAL from beds and dining tables and separated from the rest of the cells by a QUANTITY brick partition . The applicant was allowed TIME - long outdoor exercise . He could take a shower and wash his clothing once DATE .

NORP In support of their position , the Government produced a number of certificates and statements issued by the director of remand prison NORP on DATE showing the numbers of the cells where the applicant stayed , the frequency of outdoor exercise and visits to the shower , as well as descriptions of the cells , their equipment and sanitary installations . The certificates were accompanied by copies of the applicant ’s cell record , the prison population register and the schedules of outdoor exercise and sanitary measures covering the entire period of the applicant ’s detention .

Further to the ORG ’s request , the ORG submitted a floor plan of the facility , containing indications of the cell surface .

The applicant disputed the ORG ’s submissions concerning the cells . He provided the following information in that regard :

cell CARDINAL , held from DATE ;

cell CARDINAL , held from DATE to DATE ;

cell CARDINAL , held from DATE to CARDINAL DATE ;

cell CARDINAL , held from CARDINAL to DATE ;

cell CARDINAL , held from DATE to CARDINAL DATE .

According to the applicant , the cells presented the following characteristics :

cell CARDINAL measured QUANTITY m. The applicant stayed there alone ;

cell CARDINAL measured QUANTITY inmates ;

cell CARDINAL measured QUANTITY m and accommodated QUANTITY persons ;

cell CARDINAL measured QUANTITY and accommodated CARDINAL inmates ;

cell CARDINAL measured QUANTITY m and hosted CARDINAL detainees .

The applicant did not provide any information about the number of sleeping places in the cells .

All cells were located in the semi - basement of the remand prison . They were poorly lit and ventilated . Metal shutters on the windows blocked access to natural light and fresh air . Heating did not function . Drinking water was available only on request from the prison guards . The toilet pan was not separated from the living area . The courtyard for outdoor exercise was very small .

To corroborate his claims , the applicant submitted statements by CARDINAL detainees from the adjacent cells who also stated that the applicant had been ill - treated by prison guards .

On DATE ORG of GPE found the applicant guilty as charged and sentenced him to life imprisonment .

On DATE the applicant ’s mother complained to the regional prison authority about the conditions of his detention . In response to the complaint , on DATE the authority admitted that the cell where the applicant was held had to be repaired and directed the management of the prison to transfer the applicant to another cell .

On DATE the applicant complained to the regional prosecutor about the conditions of his detention . He claimed , in particular , that there were metal shutters on windows , that the toilet pan was not separated from the rest of the cell and that the heating was too weak . Following an inquiry into the applicant ’s allegations , on DATE the district prosecutor concluded that “ the [ remand prison ] cells [ were being ] renovated and properly maintained ” and refused to open a criminal investigation into the matter . The applicant complained to a court .

On DATE ORG dismissed the applicant ’s complaint against the prosecutor ’s decision of DATE . The applicant appealed against the decision of DATE , but provided no further information about the outcome of these proceedings .

On DATE the applicant ’s mother lodged another complaint with the regional prison authority , claiming , in particular , that the conditions of his detention had not improved . On DATE the authority replied that the applicant ’s cell had been recently renovated and satisfied the legal standards and that the applicant had no complaints in that regard .


Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

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


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a life sentence in FAC . He was represented before ORG by PERSON from GPE .


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Kazakhstan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5+5-5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) (Article 5 - Right to liberty and security;Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and is detained in GPE , GPE .

According to the applicant ’s submissions , he lived in GPE , GPE until DATE . DATE the applicant was constantly harassed by the police , taken into police custody and ill - treated . In DATE he was asked to go to a police station as a friend of his had informed the police that the applicant had witnessed a fight between him and another friend of the applicant . On DATE a statement was taken from him by the police . DATE he was once again invited to the police station , where , this time , he was beaten by the police . Subsequently , he was also accused of forcing a girl to worship in the NORP manner and of raping her . He was eventually released from police custody . The applicant considered that he had been subjected to ill - treatment because he was a practising NORP who worshipped and who wore a beard . On DATE the applicant left GPE and arrived in GPE . He then went to GPE twice and also to GPE . On CARDINAL DATE the applicant re - entered GPE on a tourist visa .

On DATE with a view to requesting a residence permit in GPE , the applicant went to the GPE police headquarters , where he was arrested . The Government submitted that ( i ) subsequent to his arrival in GPE CARDINAL DATE , an entry ban was issued in respect of the applicant , as he was considered to constitute a threat to national security , and ( ii ) he was detained with a view to his deportation .

On DATE the applicant was transferred to the ORG Foreigners’ Removal Centre .

On unspecified dates the applicant applied to the national authorities and to the ORG High Commissioner for Refugees ( ORG ) , asking to be recognised as a refugee .

On DATE a police officer conducted an interview with the applicant in the context of his application to be granted asylum .

On DATE the applicant was notified by the police that his asylum application had been rejected .

On DATE the ORG issued an asylum - seeker certificate to the applicant .

On DATE CARDINAL of the applicant ’s representatives , Mr A. Yılmaz , lodged an objection to the decision to reject the applicant ’s asylum application with the police department responsible for foreigners , borders and asylum attached to the GPE police headquarters . The lawyer asked the authorities to review their decision and to conduct a second interview with the applicant .

On DATE lodged an application with ORG for his client ’s release . The applicant ’s lawyer also stressed that the applicant was being kept in poor detention conditions . He received no response to his application .

On DATE the police conducted a second interview with the applicant , during which he claimed that he would be exposed to a real risk of death and duress at the hands of the police if deported to GPE . In his statement , the applicant claimed that he had already been ill - treated by the police in GPE and that the authorities had imprisoned religious people like him on false accusations .

On DATE and CARDINAL DATE Mr A. Yılmaz lodged CARDINAL further applications with the police for his client to be released . He submitted that the applicant was being sought for by the GPE authorities for political reasons and that he would be persecuted on the basis of his religious convictions and subjected to torture and ill - treatment if deported to his country . In support of his petition dated CARDINAL DATE , the applicant ’s lawyer submitted a document showing that the applicant was being sought for by the public authorities in GPE on suspicion of having committed the offence of “ hooliganism ” , proscribed by LAW of LAW , as in force at the material time . He also submitted a copy of a page of a newspaper published in GPE in DATE according to which an arrest warrant had been issued in respect of the applicant .

On DATE the applicant was released from the NORP Foreigners’ Removal Centre . The applicant was ordered to go and live in the province of ORG pending the determination of his asylum application .

On DATE the applicant went to ORG , where he lived until DATE .

On DATE the applicant was granted a residence permit , valid until DATE .

On DATE ORG attached to ORG requested ORG ( also attached to ORG ) to provide information regarding the applicant , noting that he was sought for by the prosecuting authorities and the ORG bureau of GPE as he was suspected of having committed an offence in that country . On DATE the deputy head of the Foreigners , Borders and ORG informed ORG that the applicant had requested asylum and was residing in ORG and that on DATE a further entry ban had been issued in respect of him after the applicant had been prosecuted for “ hooliganism ” . The Foreigners , ORG and ORG requested the ORG department not to provide any information to the GPE authorities , in the interests of the safety of the applicant and his family members in GPE .

On DATE the applicant was served with a document informing him that his asylum application had been rejected on DATE and that he could not benefit from subsidiary protection either . The document informed him that he was banned from entering NORP territory and that if he attempted to enter NORP territory , he would be deported . On DATE the applicant was detained .

On DATE Mr A. Yılmaz lodged CARDINAL applications with ORG requesting that his client be released . The lawyer noted that he had received a phone call from the applicant , who had stated that he would be deported to GPE , where he would be subjected to torture .

On DATE the applicant was deported to GPE .

In a letter dated CARDINAL DATE , PERSON submitted that the applicant had been transferred to the custody of GPE ’s security forces upon his return to GPE and had then been remanded in custody in FAC . The lawyer stated that he did not have information supported by any document as to whether the applicant had been subjected to ill - treatment in GPE .

On DATE PERSON lodged an application with ORG for the annulment of the decisions of the Ministry rejecting the applicant ’s asylum application and to deport the applicant from GPE . He requested a stay of execution of the decision to deport the applicant , pending the proceedings before ORG . In support of his petition , the applicant ’s lawyer submitted a number of documents to ORG , including a document downloaded from the NORP police department website , according to which an arrest warrant had been issued in respect of the applicant . The document , which was also submitted to the ORG , contained the applicant ’s name , photograph and the charge brought against him ( “ hooliganism ” , under LAW of LAW ) . He also submitted the newspaper page ( see paragraph CARDINAL above ) , which he had already submitted to the police on CARDINAL DATE and according to which an arrest warrant had been issued in respect of the applicant .

On CARDINAL DATE ORG rejected the request for a stay of execution in respect of the applicant ’s deportation .

On DATE ORG dismissed the application lodged by the applicant on DATE . In its judgment , the administrative court noted that according to information obtained from ORG ( PERSON ) , the applicant was involved in international terrorism and had carried out terrorist activities when he had been in GPE . ORG further noted that the applicant ’s asylum application had been rejected as the administrative authorities had found that there had not been any basis for the applicant ’s fear of persecution and that he had not met the conditions for being considered a refugee . On the basis of the documents in the case file , ORG concluded that the administrative decision to reject the applicant ’s asylum application and to deport the applicant from GPE had been lawful .

Following an appeal by the applicant , on DATE ORG upheld the judgment of CARDINAL DATE .

DATE and CARDINAL DATE the applicant was detained at the ORG . The applicant claimed that the centre had been overcrowded at the time of his detention . He had not been allowed exercise outdoor or any other type of social activity throughout his detention . The applicant further alleged that there had been hygiene problems at the centre and that the quantity of the food provided had also been poor .

The Government submitted that the ORG Foreigners’ Removal Centre where the applicant had been held had a capacity of CARDINAL persons and that a total of CARDINAL persons had been held during the period DATE and DATE . Detainees were accommodated on CARDINAL floors : the first CARDINAL floors were reserved for male detainees , and the third floor for females . There were CARDINAL dormitory rooms on the first floor , measuring CARDINAL , DATE , DATE and QUANTITY m. On the second floor there were CARDINAL dormitories measuring CARDINAL , DATE , DATE , DATE and QUANTITY m. There was a total of CARDINAL bunk beds in the CARDINAL rooms reserved for male detainees and all rooms received natural light . There were also CARDINAL showers and CARDINAL toilets per floor , as well as a cafeteria measuring CARDINAL sq . m , where breakfast , lunch and dinner were served DATE on each floor . The detainees had the right to outdoor exercise if the physical conditions and the number of staff available allowed . A doctor was present on the LOC DATE and the detainees also had access to medical care in cases of emergency . As for the hygiene in the facility , there were CARDINAL cleaning staff working full time and cleaning products , such as soap , were provided on a regular basis .


Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses)

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in DATE and lives in GPE .

He was charged with causing serious health damage . According to the charges , at TIME on DATE , he , together with GPE , had repeatedly hit PERSON on the head outside a nightclub on FAC . L. had fallen to the ground and had then been kicked several times . He had sustained serious head injuries which had been life - threatening and caused him permanent health damage .

Criminal proceedings in respect of GPE were discontinued after his death in a car accident on DATE .

ORG ( “ the ORG ” ) heard evidence from the applicant and CARDINAL witnesses and examined certain other evidence such as a written forensic expert opinion on PERSON ’s injuries , a telephone activity report concerning the time and location of the applicant ’s communications , identification reports based on photographs and a video - recording from a closed circuit television camera near the scene . It also examined GPE ’s statements given during the preliminary investigation .

ORG found that the witness statements were incoherent and that some were contradictory . The witnesses had given different accounts of the events , regarding the number of persons who had been at the scene and attacked PERSON , as well as the NORP actions during the scuffle and after PERSON had fallen to the ground . The court noted that according to GPE ’s statements given during the preliminary investigation , he had hit PERSON twice , PERSON had fallen to the ground , and the applicant had arrived afterwards . The court had no reason to doubt what GPE had said . It also noted that it could not give less credit to the statements of LANGUAGE – according to whom the fight had been between PERSON and GPE – merely because he was a friend of the applicant .

The court rejected witness statements from ORG , GPE and GPE as evidence , as well as identification reports drawn up during the pre - trial investigation identifying the applicant as one of the ( probable ) attackers of the victim , as their statements in the identification reports did not match their statements before the court . It also pointed to the lack of credibility of some of the witness statements , such as PERSON ’s statement , which said that she had recognised the applicant ’s eye colour and the look in his eyes , but that she had not seen the colour of his jacket .

ORG considered that there was only indirect evidence against the applicant and concluded that it could not be established beyond doubt that he had committed the offence he was charged with . By a judgment of DATE ORG acquitted him .

NORP The prosecutor appealed to ORG ( “ the Court of Appeal ” ) . He mainly challenged ORG assessment of the evidence . He did not request a re - examination of the witnesses . He requested that ORG quash ORG judgment and adopt a new judgment convicting the applicant . A copy of the prosecutor ’s appeal was sent to the applicant and his lawyer .

ORG summoned the applicant , his counsel and the prosecutor to a hearing . However , the applicant informed the court in writing that he did not wish to take part and asked for the case to be examined in his absence .

At ORG hearing , which took place on DATE , the applicant ’s counsel confirmed that he was aware that the applicant did not wish to take part . The prosecutor did not object to examination of the case in the applicant ’s absence . ORG disclosed the records of ORG hearings at the prosecutor ’s request , to which the applicant ’s counsel did not object . Subsequently , the court heard the parties’ arguments . No requests to summon witnesses were made and no witnesses were examined .

ORG assessed the evidence differently , based on the material in the case file , and found that the applicant ’s guilt was established . It considered that it was incorrect to describe the witness statements as contradictory ; rather , the ORG attention had been focused on different details and the scope and precision of the information contained in their statements varied . The court provided a comprehensive analysis of the evidence in its judgment , delivered on DATE , and explained in detail why , and to what extent , it assessed the statements given in ORG differently from the lower court .

Notably , ORG considered that ORG had not been justified in rejecting ORG , ORG and GPE ’s statements and identification reports as evidence . In respect of ORG , it noted that at the identification procedure she had recognised the applicant by his eyes and eyebrows . The fact that she could not describe his clothing did not discredit her evidence . The court found that it could not be required of a witness to note everything necessary for criminal proceedings . A person could only focus on a single detail rather than on the full picture . Nor was her evidence discredited by her failure to recognise the applicant at the court hearing , as at court hearings witnesses were in a particularly stressful situation . Similar considerations were applied to PERSON , who , moreover , had recognised the applicant at ORG hearing . The fact that PERSON and PERSON ( another witness ) – who had been together at the time of the events – had taken note of different aspects of the events did not render those statements unreliable ; rather , it reflected the fact that the perception and memory of different people differed . Nor did the different expressions used by PERSON at the identification procedure and in court render her statements unreliable . Furthermore , ORG found no radical differences between PERSON ’s statements in the identification report and in court , and therefore considered that the rejection of his statements as evidence had been not justified either . In conclusion , ORG considered that ORG , ORG and PERSON ’s statements , as well as their identification reports , had to be taken into account and assessed together with the other evidence .

ORG also disagreed with ORG position concerning the reliability of ORG ’s statements . It pointed to the fact that his statements , according to which the applicant had arrived at the scene after PERSON had already fallen to the ground , did not match any of the other witness statements . It also noted that the applicant , GPE and GPE had been friends , whereas the other witnesses had had no connection with them . Considering a number of statements by independent witnesses , the court found that GPE had not been credible in assuming full responsibility and noted that there was no way of finding out why he had done so . It also noted that the applicant ’s statements had been inconsistent . He had said during the preliminary investigation that he had seen GPE hitting PERSON , whereas in court he had said that he had been further away from the scene and denied having seen anything . The court also referred in that connection to the words heard by witnesses from a person whose appearance corresponded to that of the applicant : “ Why then did he come to start a quarrel ? ” If the applicant had arrived at the scene after PERSON had been knocked down , he would have known nothing about the reasons and initial stages of the conflict and would have had no reason to express himself in such a way .

ORG noted that since the applicant had acted jointly with another person , it was legally irrelevant which of them had struck PERSON , causing him to fall , although it also referred to PERSON ’s statements according to which the last blow had been given by the applicant . The court further analysed at length the subjective element of the offence and concluded that the applicant had acted with the indirect intent of causing serious health damage . Both the intellectual and volitional aspects of intent required under the pertinent case - law had been present in the applicant ’s behaviour .

ORG convicted the applicant as charged and sentenced him to DATE imprisonment , of which he immediately had to serve DATE , the remainder of the sentence being suspended . In sentencing , the court had regard to the fact that the applicant had no previous convictions and that he was a young person in DATE . A short immediate prison sentence gave him a serious warning for the future .

The applicant appealed to ORG . He challenged ORG assessment of the evidence and argued that it had not convincingly substantiated its different conclusion from that of ORG . He pointed out that ORG had not directly verified the evidence ; he referred in that respect to the conduct of the witnesses , which was of paramount importance in assessing their credibility but which was not reflected in the record of the court hearing . In particular , he referred to PERSON ’s hesitant behaviour at the hearing . He considered that ORG had assessed the evidence in a selective and arbitrary manner and had given the benefit of the doubt to the prosecution .

On DATE ORG decided not to examine the applicant ’s appeal .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time)

The relevant details of the application are set out in the appended table .

NORP The applicant complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law .


Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice;Criminal offence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in ORG .

On DATE the Leskovac police informed the local minor - offence judge and the public prosecutor ’s office about a violent incident between the applicant and a certain PERSON that had occurred on DATE in a neighbourhood of ORG .

By a decision of CARDINAL DATE the misdemeanour court judge in PERSON ( sudija GPE organa za prekršaje u ORG ) found that at TIME on DATE in PERSON had verbally insulted the applicant ’s children , and the applicant had then punched him several times on the head and injured him . The judge concluded that these actions had been in breach of public order and peace and had thus been contrary to Article PERSON ) of LAW DATE ( see paragraph CARDINAL below under Relevant domestic law and practice ) . The relevant part of the decision reads :

“ Defendant[s ] GPE ... and PERSON are guilty in that at TIME on DATE , in GPE street in GPE , [ the former first swore and insulted the applicant ’s children ] , while the latter punched PERSON several times on the head and injured him ... ”

Each of them was ordered to pay a fine in the amount of MONEY ( ORG ) plus ORG CARDINAL for costs ( at that time equivalent to MONEY ( ORG ) in total ) , which in the event of non - compliance would be converted into a prison term of DATE .

After an investigation had been conducted , on DATE the ORG ( “ the LOC ” ) charged the applicant with the criminal offence of inflicting grievous bodily harm on GPE in connection with the above incident , contrary to LAW . The ORG , as well as the applicant and his family in the capacity of private prosecutors , lodged separate indictments against GPE for several offences . All the indictments were joined in the same proceedings before ORG .

In a judgment of CARDINAL DATE ORG found the applicant guilty as charged and sentenced him to CARDINAL months’ imprisonment . PERSON was found guilty and fined for insulting the applicant ’s family and causing minor bodily injuries to the applicant ’s mother . The court ordered the applicant to pay ORG CARDINAL in court costs , while each party was to cover its own costs and expenses .

“ Defendant PERSON ... is guilty in that

at CARDINAL and TIME on DATE in FAC ... he punched [ GPE ] on the left side of the face and , after knocking PERSON down , he continued punching him in the head , thereby causing him a number of grievous bodily injuries dangerous for life , such as : bruising of both eyelids ( black eye ) , bruising of the left cornea , and nose abrasions ... ”

The applicant appealed , arguing , inter alia , that he had already been punished in respect of the same incident by the ORG misdemeanour judge , with the result that the principle of ne bis in idem had been violated ( see paragraph CARDINAL below ) .

On DATE ORG upheld the judgment in respect of the applicant and dismissed the charges against PERSON as statute - barred . As regards the principle of ne bis in idem , the court held that the applicant had been found guilty of a misdemeanour against public order and peace in the misdemeanour proceedings , whereas he had been convicted of the criminal offence of grievous bodily harm in the criminal proceedings . According to the court , the descriptions of the acts sanctioned therefore clearly differed .

On DATE , ORG converted the prison sentence to house arrest without electronic monitoring .

On DATE ORG amnestied the applicant at his request , finding that the conditions for a statutory amnesty were applicable ( see paragraph CARDINAL below ) .

In a subsequent constitutional appeal lodged on CARDINAL DATE the applicant reiterated that he had been tried and punished twice for the same offence , in breach of LAW ( see paragraph CARDINAL below ) .

On DATE ORG , referring to the reasoning of ORG as “ fully acceptable from the constitutional point of view ” ( see paragraph CARDINAL above ) , dismissed the applicant ’s appeal as ill - founded . The decision of ORG was served on the applicant ’s representative on CARDINAL DATE .


Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Pere Pastor Vilanova

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . At the time he lodged his application he was serving a sentence in FAC . He was represented before the ORG by PERSON , a lawyer practising in ORG .

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

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

On TIME of CARDINAL DATE , while walking home together from the centre of the city of ORG , CARDINAL individuals , A and B , were assaulted by C and another person . The assailants pepper - sprayed A and B and unsuccessfully attempted to rob them .

On DATE C was taken to an investigator for questioning . After he had been charged , the investigator questioned him again on DATE while a remand judge examined him on DATE .

In the questionings of CARDINAL and DATE C was assisted by a lawyer . He confessed in all CARDINAL of the questionings that he himself had attempted to rob B while the applicant had allegedly assaulted A.

C stated on the record each time he was questioned that he had not been subjected to any form of physical or psychological pressure by the authorities . The records of the questionings contain no mention of the influence of any drugs or any discussion on that matter . However , neither the applicant nor anybody on his behalf was present .

Following C ’s allegations the police searched for the applicant on QUANTITY occasions DATE but were unable to find him .

In a further questioning on DATE , C changed his account of events and denied any involvement in the incident by him or the applicant . He submitted that during his arrest on DATE police officers had presented him with an account of the incident of CARDINAL DATE that had stated that he and the applicant had been involved and that they had made his release dependant on his acceptance of that version of events . As he had wished to go home , he had simply responded by agreeing to it . The questioning of CARDINAL DATE took place in the presence of ORG lawyer and a lawyer for the applicant , who had been charged in connection with the assault in the meantime .

NORP In response to these allegations , on DATE another investigator questioned CARDINAL arresting officers and the investigator who had had contact with C on DATE . C ’s lawyer was present , although the applicant ’s was not , despite having been duly summoned . The arresting officers and the investigator denied putting any physical or psychological pressure on C , leading him in any other way to present any particular version of the events , or witnessing the use of any such pressure or influence .

Meanwhile , on DATE , the applicant himself had been charged with robbery in connection with the incident of CARDINAL DATE and with another , unrelated offence . However , the charge sheet was served on him only on DATE when he was arrested during a road traffic control .

On DATE a face - to - face confrontation was carried out between C and a certain D , who stated that C had previously confessed to him that he had committed the attempted robbery of CARDINAL DATE together with the applicant . C ’s defence counsel was present at the confrontation while neither the applicant nor his counsel were , although the latter had been properly requested to attend .

On DATE the applicant was indicted to stand trial on the charges along with C , who faced a charge of robbery in the same proceedings .

On CARDINAL DATE ORG found the applicant and C guilty and imposed prison sentences on them . The applicant was sentenced to DATE and CARDINAL months’ imprisonment .

The court observed that the applicant had at all times denied any involvement in the robbery , while C had denied his involvement from DATE .

As for C , in particular , the court noted that he had maintained his allegation of police coercion into making his initial confession . In addition , he had stated that he had been intoxicated while making the confession and that he had confirmed the confession later as he had been concerned about changing his original statement . However , having heard the officers involved in ORG arrest , the court found that the allegation of coercion had not been confirmed . It did not find ORG changed version credible as his participation in the robbery had been proven by his statements of CARDINAL , CARDINAL and DATE and by B and NORP

As regards the applicant , ORG noted that neither A nor B had identified him . However , he had been incriminated by the early statements of C and by D , as mentioned above .

The applicant challenged the judgment of CARDINAL DATE by way of an appeal to ORG . He argued that his conviction had been based on ORG initial statements , that those statements had been unlawful as evidence and that his conviction had accordingly been arbitrary . However , ORG had completely ignored his arguments on that point .

In particular , the applicant referred to a position taken by the criminal law bench of ORG ( no . PERSON CARDINAL/CARDINAL of DATE ) that if witness evidence was the only or decisive incriminating evidence , the witness had to be heard or , as the case may be , re - heard after the accused had been charged in order to safeguard the accused ’s rights of defence and to adversarial proceedings . He argued that , although formally speaking C was his co - accused and not a witness , mutatis mutandis , the precedent fully applied to his case . Accordingly , ORG initial statements had not been admissible as evidence and the only admissible submissions he had made about the applicant had been those of DATE and afterwards .

The prosecution also appealed , alleging that the first - instance court had erred in the determination of the applicant ’s sentence .

On DATE ORG decided on the appeals by increasing the applicant ’s sentence to DATE . It held that C ’s early statements were not excluded as evidence because CARDINAL of them had been made in the presence of his lawyer and that CARDINAL of those CARDINAL had actually been made before a judge , which meant any coercion was excluded . ORG also found that the statements had not been the only evidence against the applicant , that he had also been incriminated by D and by the fact that the general description of the incident by A and B had corresponded to that in C ’s early testimony .

In a subsequent appeal on points of law and constitutional complaint the applicant raised similar arguments to those above . He added specifically that he was not relying on any coercion of C when the latter made his initial statements since any such coercion or lack of it was of relevance for the admissibility of those statements as evidence in relation to C , but was irrelevant in relation to the fact that he himself had been unable to exercise his rights of defence during those statements .

The appeal and constitutional complaint were dismissed on CARDINAL June and CARDINAL DATE . In their respective decisions , ORG and ORG referred to the reasoning behind the lower courts’ decisions , considered that the applicant had merely disagreed with their assessment of the evidence , and found no unlawfulness or arbitrariness in the decisions .

On DATE the applicant applied to have his trial reopened , relying on a ORG judgment of CARDINAL DATE which had declared unconstitutional some statutory provisions that had played a role in his sentencing .

A reopening of the trial was allowed and on DATE ORG reduced the applicant ’s prison term to DATE . The ruling became final and the applicant finished serving his sentence on DATE .