Remainder inadmissible;Violation of Article 6+6-1 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in DATE and is currently detained at ORG in GPE .

By Act III of DATE ORG introduced the right to legal assistance at the pre - trial stage . However , the law only came into force in DATE by means of LAW of DATE . Prior to this Legal Notice Maltese law did not provide for legal assistance during pretrial investigations and specifically during questioning , whether by the police or by a magistrate in his investigative role . Before questioning , however , suspects would be cautioned , that is , informed of their right to remain silent and that anything they said could be taken down and produced as evidence . At the time , no inferences could be drawn by the trial courts from the silence of the accused at this stage .

The applicant , at the time DATE , was arrested on DATE on suspicion of importation and trafficking of drugs ( heroin ) in relation to CARDINAL episodes in DATE and DATE . On DATE while under arrest and precisely during questioning , after being duly cautioned about his right to remain silent , the applicant , in the absence of a lawyer , gave a statement to the police , which however he refused to sign .

In his statement he said that he regularly drove a white ORG Escort and that he was married to a NORP national . In reply to questioning , he stated that he did not remember his whereabouts on DATE and that he did not know a certain PERSON and CARDINAL other NORP nationals ( PERSON , NORP , and ORG . Neither had he ever paid or received money from the aforementioned persons . He further stated that he had never made or received calls to and from GPE . He denied having , on DATE , made contact with any foreigner in ORG , or having received anything from PERSON or ever having made a phone call to CARDINAL specific numbers shown to him by the police . He further denied having gone to ORG with his wife in his car and making contact with PERSON on DATE ; he also denied that on DATE PERSON had given him heroin capsules in the presence of his wife . He claimed however to have gone to ORG at TIME to look for a person who had stolen his car stereo . The applicant availed himself of the right to remain silent in respect of questions as to whether he had a drug problem , whether he had ever used heroin , and when was the last time he had done so . On being asked whether he had written the CARDINAL names found on a piece of paper in his car and what was their purpose , he replied that he had himself written the CARDINAL names but that he did not know the people and that he was unaware of the purpose of the paper , which had been in his car for a very long time .

On DATE ( DATE ) the applicant was arraigned before ORG as a ORG ( committal proceedings ) and his above - mentioned statement exhibited as evidence against him . The prosecution also produced another CARDINAL statements implicating the applicant , given by CARDINAL prosecution witnesses ( N. and PERSON , CARDINAL NORP female drug couriers , mentioned above ) who had also been arrested and investigated in connection with the same crimes , and who had also not been legally assisted during the police investigation into their case .

NORP In the meantime , on DATE the duty magistrate ( C. ) had been informed that the applicant had been arrested , that a search had been carried out at his place of residence , and that certain items had been seized . Instead of proceeding herself to the spot to conduct the inquest for the purpose of the in genere inquiry ( inkjesta ) , she appointed the police investigating officer to hold an on - site inquiry , and at the same time appointed a number of experts to assist him ( see Articles CARDINAL - CARDINAL of LAW , relevant domestic law , paragraph CARDINAL below ) . In their document of appointment , however , the experts were required to report their findings to her within DATE . The following day she acceded to the Commissioner of Police ’s request that she order the relevant telephone companies to give all the information requested in connection with the mobile phones seized in the course of the investigation . In the procès - verbal of DATE no findings were reported by her , given that on DATE the Commissioner of Police had requested the said magistrate to close the inquest since committal proceedings ( kumpilazzjoni ) had already started in respect of the applicant ( see paragraph CARDINAL above ) . All the relevant documents were attached to the procès - verbal and the record of the in genere inquiry sent to the Attorney General .

The same magistrate ( C. ) was assigned ( by lot ) the case in ORG sitting as a ORG . She eventually decided that there was enough evidence to put the applicant under a bill of indictment . The resulting bill of indictment was filed by the Attorney General on DATE .

In consequence the applicant was tried by a jury and by a judgment of ORG of DATE he was found guilty of importing , causing to be imported , or taking steps preparatory to the importation , of heroin DATE ; that DATE he conspired with other persons to import , sell or traffic heroin , or promoted , constituted , organised or financed such a conspiracy ; and that in the same period he had in his possession the drug heroin in circumstances which indicated that it was not for his exclusive use . ORG sentenced him to DATE imprisonment and a fine of QUANTITY ( ORG ) . During these proceedings the applicant had objected to the statements made by ORG and PERSON on various grounds , however these objections were withdrawn on DATE , apart from CARDINAL objection concerning the inadmissibility of the results of the identification parade .

The applicant appealed , claiming an incorrect application of the law ( unrelated to legal assistance ) , a wrong assessment of the facts , and a disproportionate punishment .

During the appeal proceedings the applicant requested ORG to refer the case to the constitutional courts on constitutional grounds ( different from those raised below ) . On DATE ORG found his claims to be frivolous and vexatious and rejected his request .

By a judgment of ORG of CARDINAL DATE the applicant ’s appeal was dismissed and the first - instance judgment confirmed ( apart from a slight change in respect of the timing of the third charge ) .

In so far as is relevant , the ORG noted that the jury had had the advantage of seeing and hearing all the witnesses , and that the jurors had arrived at the conclusion that they should not rely on the version of events given by the applicant in his statement . The first issue which the jury had to decide was whether the CARDINAL couriers ( N. and PERSON ) had made contact with the applicant in DATE . In his statement to the police the applicant denied knowing the QUANTITY women and other people mentioned by them , and also denied that he had made and received calls to and from GPE . However , the QUANTITY women identified the applicant as being the person they made contact with in DATE , namely as the person who had given ORG food , gloves , disinfectant and a laxative , and to whom PERSON had given the capsules they had carried in their stomachs . A number of factors gave credibility to the women ’s identification of the applicant : ( i ) the circumstances of the meetings they had with him at which time he was using a white CARDINAL - door car and was in the company of an NORP woman ; ( ii ) the applicant ’s statement that he habitually made use of a white CARDINAL - door ORG Escort and that he was married to a NORP woman ; ( iii ) the fact that when arrested PERSON and PERSON had separately identified the applicant in photographs ; ( iv ) moreover , the QUANTITY women had separately identified the applicant in identification parades supervised by a duty magistrate ; and they did the same without hesitation when they testified , both during the committal stage and before the jury . In the light of all those factors the jurors could reasonably conclude that the person PERSON and PERSON had met in DATE and to whom they had delivered the capsules was the applicant .

This having been established , the jury had to determine what the capsules delivered to the applicant contained and whether the applicant was connected to the delivery of DATE intercepted by the police . The experts had stated that the capsules contained heroin . The court rejected the applicant ’s argument that the delivery of DATE concerned cannabis , given that studies showed that drug couriers were used in connection with heroin and cocaine and sometimes ecstasy , and that GPE was considered a key transit route to LOC for heroin .

It appeared from the evidence given by the QUANTITY women that they had imported heroin in DATE , which was the second time they had come to GPE . They had been forced to return in DATE since , in DATE , PERSON had lost most of the capsules she was carrying when vomiting on board the flight . The court considered that a recipient would expect to receive the full delivery , and that therefore it was logical for the supplier to force the courier to deliver what had been missing because of her fault . It followed that , from their testimony , it was reasonable for the jury to conclude that what PERSON had carried in DATE was also heroin . The court considered that this was the only possible conclusion to be arrived at . Neither was it conjecture to conclude that the drug being carried in DATE was destined for the applicant . Indeed during the trial by jury PERSON had indicated the applicant as the recipient . The court rejected the applicant ’s argument that he could not be the recipient because the women had referred to someone whose father had passed away , which was not the case for the applicant . It considered the relevant part of the statement by the women as hearsay evidence and in any event it was a statement which referred to a third person and not the applicant .

NORP The court further noted that on DATE , when the delivery was meant to take place , the police had seen the applicant drive around the area ( CARDINAL times ) in his white ORG Escort , a short time before PERSON was arrested . Indeed the jurors had not believed the applicant ’s version that he had gone to ORG to look for someone who had stolen his car stereo . Moreover , the jurors could not have ignored that in his statement the applicant had denied any connection with GPE , despite the fact that he could not explain the NORP names written on a piece of paper which was found in his car and which he admitted he had written himself , and that PERSON had testified that the applicant had spoken to a NORP person on the telephone .

ORG decided that in the light of the above considerations and all the evidence produced , the jurors could legally and reasonably conclude that the applicant was guilty of the first and second charge , but only partly as to the third charge , since he had never received the delivery of DATE .

The applicant instituted constitutional redress proceedings , claiming a breach of his right to a fair trial ( LAW ( c ) ) on account of the lack of legal assistance during the investigation and interrogation , both in his respect and in respect of the witnesses who had also been under investigation , their statements having repercussions on his trial . He further complained that the same magistrate who had conducted the in genere inquiry was also the magistrate who had conducted the compilation of evidence in the committal proceedings . He requested a remedy including , but not limited to , a declaration that the criminal proceedings be cancelled and compensation paid .

By a judgment of CARDINAL DATE ORG ( FAC ) in its constitutional competence rejected the applicant ’s claim .

In respect of the statement made by the applicant on DATE the court noted as follows : ( i ) the applicant had not raised the issue before his criminal proceedings came to an end , and the judgment was now res judicata ; ( ii ) neither had he raised the issue in his referral request pending the criminal proceedings before ORG ; ( iii ) the applicant ’s statement was not determinant to finding him guilty : in his statement he had not admitted to trafficking in drugs or that he knew PERSON , and he had chosen to remain silent when questioned about drug use ; ( iv ) while it was true that ORG had referred to extracts from his statement , this was not the basis of his conviction , which was based on the evidence given in court by PERSON and PERSON and on the results of the previous identification parades – indeed he had said nothing relevant in his statement .

The court concluded that the proceedings having ended it had to look at the entirety of the proceedings , and it was not for it to substitute the findings of the jury . During the trial the applicant was represented by a lawyer and had ample opportunity to submit evidence and contest any evidence brought against him , and the fact that he did not have legal assistance during questioning did not have an irreparable effect on his right to defend himself .

The court rejected the second complaint in relation to legal assistance for the witnesses , in so far as the applicant had no standing in that respect . Moreover , their statements had remained unchanged ; the applicant could have challenged them during the trial but had opted not to do so .

Lastly , in relation to the third complaint it held that the magistrate conducting the in genere inquiry was independent of the police , did not act as a prosecutor , and in the present case did not express an opinion as to whether there was sufficient evidence for the police to institute proceedings in respect of the applicant . The applicant ’s case was also tried by a jury and then reviewed by ORG . Furthermore , the applicant had not raised the issue in the committal proceedings in DATE - indeed a comment somewhat related to the issue had been explicitly withdrawn on DATE before ORG - and he should not therefore be allowed to benefit from his own passivity .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal and confirmed the first - instance judgment , with costs against the applicant . It noted that a correct interpretation of PERSON v. GPE [ ORG ] ( no . CARDINAL , ORG DATE ) had to be made in view of the circumstances of that case , where indeed Mr PERSON had been in a vulnerable position when he had made his statement . The rationale of the right was precisely that , and not to allow guilty persons to be let off scotfree because of a formality which had no real or serious consequences . In the present case the applicant did not claim that he was forced to make the statement , or that he was in any other way vulnerable when he made his statement . The right to a lawyer was aimed at avoiding abuses , which in fact did not happen in the applicant ’s case . Thus , while there was no procedural obstacle for the applicant to complain at this stage , namely before the constitutional jurisdictions , despite the fact that he had not raised the issue in the criminal proceedings , the element of vulnerability was missing in the applicant ’s case , and thus there could be no violation of his rights . ORG held that even if the statement had been determinant for the finding of guilt , that finding was not necessarily tainted unless the statement had been obtained under duress , which was not so in the present case . Nevertheless , in the instant case the statement was of no relevance whatsoever , as the applicant had not admitted to anything and ORG had only referred to the statement in saying that the jury had not believed the applicant ’s version . It had been other evidence that had led to his finding of guilt . Lastly , ORG noted that it could not agree to a general view that the moment a statement was made without legal assistance it became ipso facto invalid and brought about a breach of LAW .

As to the complaint related to the witnesses , the court did not rule out the applicant ’s locus standi , which could come into play if their statements had been made under duress . However , it was not so in the present case , where the witnesses had reiterated their statements even before the trial courts . It followed that those statements were also admissible . Lastly it confirmed the reasoning of the first - instance court relating to the impartiality of the magistrate , finding the applicant ’s argument opportunistic .


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

The applicants , Mr İrfan PERSON and Mr PERSON , were born in DATE respectively and live in GPE . At the material time , the applicants were the legal representatives of PERSON , the leader of the ORG , an illegal armed organisation .

On DATE and DATE the newspaper ORG published CARDINAL interviews with the applicants . The interviews contained the ORG statements following meetings with their client , PERSON Öcalan , in prison . The first interview was included in CARDINAL articles in the issue of DATE entitled “ Lawyers convey PERSON ORG opinions concerning developments within the ORG - GEL ” and “ The pain of change ” . The second interview published on DATE was entitled “ PERSON is an opportunity for GPE ” and “ PERSON opinions are important for an enduring peace ” .

NORP In their interviews published on DATE in the CARDINAL articles cited above , the applicants commented on the following issues : the difficulties they encountered in getting to LOC island , where PERSON was detained , their need to have a meeting with their client prior to the hearing to be held before ORG DATE , their client ’s state of health , the alleged fake news published in some newspapers regarding the applicants’ meetings with their client , their client ’s opinions regarding the current state of politics in GPE , in particular his view that NORP in GPE should form a coalition with a view to establishing social peace and enabling GPE ’s access in ORG , PERSON ORG ’s views on the conflicts occurring within the FAC , and in particular , his views that democratisation of the “ NORP organisations ” would allow the State of GPE to be more democratic , his opinions on the pro - NORP legal political parties , and his view that individuals should liberate themselves before trying to liberate others .

In the interview published DATE , DATE , the applicants made statements on the following issues : PERSON ORG criticism of the failure of the pro - NORP political groups during the municipal elections held on DATE , the view of PERSON Öcalan and his lawyers that “ the NORP movement ” had failed to take into account PERSON ORG opinions and projects , the criminal and disciplinary investigations and the criminal proceedings instituted against the applicants for disseminating their client ’s views , PERSON criticism of “ NORP organisations ” , problems between PERSON and the leaders of the “ NORP movement ” , the ORG role both as legal and political representatives of PERSON and their meetings with individuals close to the State of GPE as well as representatives of foreign GPE on behalf of their client , and the applicants’ view that PERSON ORG opinions offered an opportunity for resolving the NORP issue in a democratic / political manner and that his opinions had transformed the State of GPE .

On DATE the public prosecutor at the now defunct ORG filed a bill of indictment under section CARDINAL(CARDINAL ) of the Prevention of Terrorism Act ( Law no . ORG ) , charging the applicants with disseminating propaganda in favour of the ORG / ORG - GEL on account of the interview published on DATE . In the indictment , the applicants were accused of acting on ORG instructions and conveying messages from him about the ORG ’s strategy . Subsequently , criminal proceedings were launched against the applicants before ORG .

On DATE the GPE public prosecutor filed a second bill of indictment against the applicants , again charging them with disseminating propaganda in favour of the ORG under section CARDINAL(CARDINAL ) of PERSON no . ORG on account of the interview published in the DATE issue of the newspaper .

On DATE ORG decided to join the CARDINAL sets of criminal proceedings against the applicants owing to the factual and legal similarities between them .

During the proceedings the applicants maintained that they had made the statements with a view to providing information to the press , since the case against PERSON had attracted media interest , but that they had been misquoted to a certain extent in the newspaper . They stressed that they had not acted with the intention of disseminating propaganda in favour of any illegal organisation .

On DATE ORG convicted the applicants of disseminating propaganda in favour of the ORG / ORG under section CARDINAL(CARDINAL ) of PERSON no . ORG . It sentenced them to CARDINAL months’ imprisonment each , but decided to suspend pronouncement of their convictions on condition that they did not commit another intentional offence for DATE , in accordance with LAW .

In its judgment , the GPE court held that the applicants had overstepped the limits of the lawyer - client relationship and made statements in a manner that induced and promoted the adoption , dissemination and enrootment of PERSON opinions in society . The first - instance court considered that in the light of the applicants’ role , the readers they targeted , the aim of the publication , and the manner in which their applicants’ interviews were perceived by the readership , the interviews could not be deemed to be protected by the right to freedom of expression or the privilege of the lawyer - client relationship . The court further considered that the right to freedom of expression carried with it duties and responsibilities and could be restricted for the purpose of protecting national security and territorial integrity in a NORP society . ORG concluded that the reported interviews were aimed at disseminating propaganda in favour of the ORG / ORG - GEL and found the applicants guilty .

On DATE the applicants’ objection to the assize court ’s judgment was dismissed by the same court .


Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation;Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants were born in DATE and DATE respectively and live in GPE and ORG respectively .

On DATE the applicants participated in the annual gay march in GPE . It was organised by ACCEPT , a non - governmental organisation whose goal is to provide information and to assist the PERSON community . The march was given police protection . Several individuals who had actively expressed their disapproval over the gay march were stopped by the police , their pictures taken and their identity papers checked and noted .

At TIME , at the end of the march , the applicants and CARDINAL other participants left the area using the routes and means of transport recommended by the authorities in the guidelines prepared by the organisers for march participants . As recommended in the same leaflet , they wore no distinctive clothing or badges that would identify them as having participated in the march .

After boarding a metro train , they were attacked by a group of CARDINAL young men and a woman wearing hooded sweatshirts . The attackers approached the victims directly and started punching them and kicking their heads and faces . They also swung from the metal bars above their heads , kicking their victims . During the attack they kept on shouting : “ You poofs go to the GPE ! ” ( Poponarilor , duceţi - vă în FAC ! )

The victims were pushed into a corner of the carriage . CARDINAL of them tried to protect the others with his body , but the second applicant remained exposed and suffered several blows .

The attack lasted for TIME . On their way out of the carriage , the attackers punched the first applicant again in the face .

NORP The other passengers withdrew to the opposite side of the carriage during the attack . Among them was a photographer , GPE , who had also been at the march . The victims asked him to take pictures of the incident , which he did . As a consequence , the attackers hit him as well .

The same evening , accompanied by a representative of ACCEPT , the victims went to ORG and to ORG for medical consultations .

The forensic medical certificate stated that the first applicant had bruises which could have been produced by blows from a hard object ; they did not require “ DATE of medical care ” .

The second applicant was diagnosed with multiple contusions ( related to the incidents ) , minor cranio - cerebral trauma , contusion on the left shoulder and the left side of his face , and bruises . No bone damage was found . The forensic medical certificate concluded that the applicant needed DATE of medical care .

Later that night of DATE the victims , including the applicants , and a representative of ACCEPT went to FAC no . DATE . They filed a criminal complaint against the attackers and stated that the assault was based on the GPE sexual orientation . They reiterated not having worn any visible signs that could have given away the fact that they were returning from the gay march . They argued that the attackers had identified them at the march ( as they had not worn masks ) and followed them afterwards , with the intention of harming them . They informed the police about the offensive remarks made during the attack .

According to the applicants , the police agents were surprised when they realised that the applicants and the other victims , although gay , were affluent individuals with regular jobs and positions of responsibility . They tried to dissuade them from pursuing their complaint , warning them that they would have to confront their aggressors in court .

On DATE the ORG representative submitted to the police several pictures of the attack taken by GPE In some of the pictures the attackers’ faces were visible , as their hoods were down . The photographer gave statements and was able to identify one of the perpetrators .

The first applicant was also shown pictures taken by the police during the march . She was able to identify CARDINAL of the individuals from their photos . The police had the PERSON names and addresses on record .

The victims gave statements to the police .

On DATE the police received copies of QUANTITY police reports drawn up on DATE of the march concerning administrative fines imposed on counter - demonstrators .

Due to a reorganisation within the police force , the case file was moved from CARDINAL police station to another , and on DATE it was registered at FAC .

As it appeared that nothing was happening in the case , the applicants sought information on the progress of the investigation by means of letters sent by ACCEPT on DATE , DATE and DATE . On DATE they also complained to ORG about the lack of an effective investigation in the case , but to no avail .

On DATE they were informed that , following the reorganisation within the police force , their file had finally been logged by ORG . The letter also informed the applicants that the investigation was ongoing and steps were being taken to identify the culprits .

On DATE , the police submitted a request to ORG ( the “ GPE ” ) to confirm whether R.S.A. – an intelligence officer who had been identified among the attackers DATE had been on an official mission that night . On DATE ORG asked for clarification concerning the nature of the request . It was not until DATE that the police were able to obtain a statement from R.S.A. , who declared that he had been off duty DATE and offered information on CARDINAL other person in the group of attackers . The actions undertaken by the police to identify the other individuals remained without success .

The Metro Police received , on DATE , a list of CARDINAL names and identification numbers of persons who had been fined by the police during the gay march .

As CARDINAL of the suspects was believed to be a GPE football club supporter , the investigators attended CARDINAL football matches DATE and DATE in an attempt to identify him . On DATE , DATE , DATE and DATE and CARDINAL DATE the investigators tried to identify the suspects at metro stations . On QUANTITY occasions DATE and DATE , the investigators successfully asked the prosecutor to extend the deadline for completing the investigation .

On DATE the police stated their view that the investigation should come to an end and asked the prosecutor ’s office not to institute criminal proceedings in the case . The police gave the following explanation for their request :

“ ... the investigation was rendered difficult by the fact that the file arrived at FAC ... DATE after the incidents , and the police agents ... who had been in charge of the case until DATE could not continue the investigation as ORG had refused to cooperate and allow their agent ‒ who was the only identified eye - witness to the events ‒ to be interviewed ; it is to be noted that the police lost their motivation to use the information for the purposes of finding the truth in this case , of identifying and bringing to justice those responsible . In addition , to a certain extent the victims lost their interest in how their complaint was being dealt with ( they did not ... adduce the medical certificates ... which had been obtained at the request of the police ... on DATE when it was noted that none of the victims had needed DATE of medical care ) . It is observed that all the evidence - gathering methods for this type of crime have been exhausted and , given the lapse of time from the date when the complaints were lodged , the validity and relevance of the evidence gathered ... [ have decreased ] , leaving the investigation into the identity of the culprits without an outcome . At the same time , it is observed that ... the criminal acts had become time - barred , removing criminal responsibility from the culprits .

On DATE , in response to a request from the applicants for information , the FAC Police informed them that their intention was to not institute a criminal prosecution ( neînceperea urmăririi penale ) as the alleged crimes had become statute - barred ( s - a împlinit prescripţia specială ) . The police explained that the investigation had been rendered more difficult by the fact that the file had not arrived at FAC office until DATE after the events . Moreover , all the actions undertaken by police in order to identify the alleged culprits had failed .

On DATE the prosecutor ’s office attached to ORG of FAC endorsed the police proposal and decided to terminate the investigation . The decision was sent to the first applicant ’s home on DATE .

On DATE the applicants lodged a complaint with the ORG against the decision of DATE . They argued that the prosecutor should have investigated the more serious crime of organising a criminal group ( asocierea pentru savârşirea de infracţiuni ) , which had not yet become time - barred . They also complained that the investigators had failed to pursue their allegation that the attack had been motivated by their sexual orientation .

The prosecutor - in - chief dismissed their objections on DATE .

The applicants reiterated their objections against both the decisions delivered by the prosecutors in CARDINAL separate complaints lodged with ORG .

On DATE ORG dismissed the complaint lodged by the applicants against the prosecutor ’s decision of CARDINAL DATE . The court made the following observation :

“ It is true that the authorities were apparently not sufficiently diligent in carrying out within a reasonable time an effective investigation capable of identifying and punishing those responsible for the criminal acts ( the long periods of police inactivity , the transfer of files , the lack of cooperation from some authorities are all duly noted ) . On the other hand , this situation – although not imputable to the [ applicants ] – can not prevent the application of the statute of limitation of criminal responsibility . ”

On DATE ORG dismissed the complaint lodged against the prosecutor ’s decision of DATE as a mere reiteration of that already dealt with by the court in its decision of CARDINAL DATE .

NORP Throughout the proceedings the applicants repeatedly sought access to the prosecution file . It was partially granted on DATE and the applicants gained full access to the file once their objections had been lodged with the courts .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Article 5-4 - Speediness of review;Article 5-5 - Compensation);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

André Potocki;Mārtiņš Mits;Síofra O’Leary

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

The applicants complained of the excessive length of their pre - trial detention . Some applicants also raised other complaints under the provisions of the Convention .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

The applicant was born in DATE and was serving a prison sentence at the time in question . The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant was arrested on DATE and sentenced by the first - instance court on DATE to CARDINAL years’ imprisonment for murder . His conviction was upheld on appeal by ORG of GPE of Adjara on DATE .

According to the available medical file ( covering the periods DATE , DATE , and DATE ) , the first time the applicant was transferred to the prison hospital after his arrest was on DATE . At that time he was diagnosed with viral hepatitis C , chronic cholecystitis , and radiculitis . The applicant complained of suffering from sleeping disorders and anxiety and was placed in the psychiatric ward of the prison hospital . On DATE he was transferred to the infectious ward , where he was treated for his viral hepatitis C. The applicant was discharged from the prison hospital on DATE .

According to the applicant , in DATE he had an operation for an ingrowing toenail on his right foot . After the operation the scar became infected and the applicant was sent to the prison hospital on DATE on account of his deteriorating health . At that time the applicant ’s diagnosis was as follows : chronic arterial insufficiency of the lower limbs , arterial occlusion and obliterating arteritis , and subungual panaritium .

On DATE the applicant had his toenail removed . He spent the post - surgery period under permanent medical supervision in the prison hospital . Although he was provided with painkillers and treated with antibiotics , the applicant , according to the case file , complained DATE about severe pain in his right foot . On DATE he was seen by an angiosurgeon , who recommended that he undergo a dopplerography of the legs and that his transcutaneous oxygen pressure ( “ Tc POCARDINAL ” ) be measured . The surgeon would decide on the need to amputate the big toe on the applicant ’s right foot on the basis of these tests .

According to a note made by a prison hospital doctor in the applicant ’s medical file on DATE , the dopplerography and Tc POCARDINAL test could not be organised in the prison hospital for technical reasons . The doctor noted an improvement in the applicant ’s general condition and concluded that in any event , and notwithstanding the specialist ’s recommendation , there was no need for those examinations , given that there were no “ absolute indications ” that surgery was called for . On DATE the applicant was discharged from the prison hospital and sent back to FAC no . CARDINAL with a recommendation that he continue palliative treatment on an outpatient basis .

At the request of the applicant , on CARDINAL DATE the board of forensic experts of ORG having examined him – drew up a medical report ( “ the CARDINAL DATE medical report ” ) , which diagnosed the applicant as suffering from the following : arteritis , occlusion of the arteries in the right shin , stenosis of the arteries in the left shin , artery deficiency in the right lower limb ( at stage IV of the disease ) , necrosis of tissue in the right big toe , cardiac ischaemia , second - degree angina pectoris , seconddegree arterial hypertension , second - degree cardiac insufficiency , and lowactivity chronic hepatitis C. The experts concluded that from a cardiological point of view the applicant ’s condition was potentially serious . As for his vascular condition , the main blood vessels in both of his legs were damaged and his condition was serious . They recommended that he be placed in a specialist cardiology clinic and have his toe amputated .

On DATE the applicant ’s lawyers complained to the Director of ORG ( “ the Prisons Department ” ) that their client , who had been in the prison hospital since DATE , had been sent to FAC No . CARDINAL , despite the seriousness of his state of health , and that the treatment in that hospital had not produced any results . They complained that the applicant ’s condition had deteriorated there . The lawyers requested that the applicant be taken to hospital on the grounds that his life was in danger . On DATE they sent the same request to the director and the head doctor at the medical unit of FAC No . CARDINAL .

On DATE the head of the welfare unit of ORG referred the ORG request to the prison governor and a group of qualified medical experts “ for an opinion ” . He observed that , in accordance with ministerial order no . CARDINAL , patients were hospitalised on the orders of the prison governor , following a report by the head doctor of the prison ’s medical unit .

Following that letter , on DATE CARDINAL of the applicant ’s lawyers contacted the prison governor reminding him of the terms of ministerial order no . CARDINAL and asking him what the response of the head doctor had been and enquiring as to when the applicant would be hospitalised .

On DATE ORG informed the lawyers that the applicant had been placed in the prison hospital on DATE .

According to the DATE notes made in his medical file , the applicant continued to suffer from pain in the right foot . It can be seen from the contents of the medical file that his right foot was treated with antiseptic products and bandaged DATE . During that period the applicant was examined by a vascular specialist twice : on DATE and on DATE . On DATE the vascular specialist recommended that the bandage be changed regularly and the toe treated with antiseptic products . He also prescribed ORG infusions . On DATE the vascular specialist recommended a Tc POCARDINAL test in order to assess the possibility of amputating the toe , and prescribed continuing palliative treatment . It appears from the case file that the relevant drugs were administered to the applicant by his wife and other family members .

On DATE the applicant underwent a Tc POCARDINAL test at a specialist hospital . On the basis of the results of the test the examining doctor concluded that the microcirculation in the lower limbs of the applicant ( particularly in the right foot ) was very low . In his view , surgical intervention was not appropriate because the particularly low level of oxygen in the right foot would have hampered the healing of the resulting wound .

On DATE the applicant was discharged from the prison hospital because of the appeal court ’s decision to suspend his prison sentence ( see paragraph CARDINAL below ) .

On the basis of the CARDINAL DATE medical report ( see paragraph CARDINAL above ) , and in view of the fact that his treatment at the prison hospital was producing no results , on DATE the applicant applied to ORG for his sentence to be suspended on health grounds ( under LAW § CARDINAL ( a ) of LAW – “ the ORG ” ) . A representative of ORG opposed the application on the grounds that the prison hospital had “ a medical service capable of treating the applicant ” and that “ if necessary he [ would ] be transferred to a specialist clinic ” . CARDINAL of the experts who had produced the above - mentioned report confirmed to the court judge that the applicant was seriously ill . However , as he had no knowledge of the medical facilities at the prison hospital , he said he could not judge whether it was appropriate to keep the applicant there . He also confirmed that the applicant ’s right big toe had to be amputated .

On DATE ORG dismissed the applicant ’s request , on the grounds that the prison hospital had a medical service capable of providing the necessary treatment and that the applicant , who was being looked after by specialist doctors , would be transferred to a specialist clinic if necessary .

On DATE the applicant ’s lawyer submitted to the court his comments on the record of the hearing of DATE . The record of the hearing , according to those comments , did not refer to the expert ’s opinion in respect of the risk to the applicant ’s life . The expert had said that the applicant ’s gangrene , which was now at the fourth ( and last ) stage , could cause septicemia and death if not properly treated . Regarding the applicant ’s heart condition , the expert had said that the applicant needed treatment in a specialist clinic to prevent sudden death . On DATE the court granted that request and ordered that the record of hearing be amended by adding the expert ’s comments .

The applicant appealed against the decision of DATE , pointing out that , according to the medical experts who had examined him , the treatment at the prison hospital had produced no results and that , if he was not properly treated , the question of the amputation of various parts of his right lower limb could arise . The applicant ’s lawyers pointed out that prisoners frequently died as a result of a lack of treatment at the prison hospital . They also complained about ORG having joined the trial as a party to the proceedings , which was in breach of LAW ORG . In their view , a representative of ORG was not in a position to assess the danger that detention might pose to the life of the applicant . Subsequently , the lawyers requested that the applicant ’s doctor and the doctor from the specialist hospital who had treated the applicant on DATE be heard as witnesses ( see paragraph CARDINAL above ) . At the examination in the specialist hospital in question , apart from the findings of the above - mentioned expert report , GPE ’s disease of the lower limbs had also been diagnosed .

At a hearing before ORG on DATE the applicant ’s lawyers requested that the representative of ORG be debarred from joining the proceedings as a party , in accordance with LAW ORG . ORG allowed that request but authorised the representative in question to attend the hearing in order to reply to any questions . It also decided to call the prison hospital surgeon , the vascular specialist ( see paragraph CARDINAL above ) , and the forensic expert ( see paragraph CARDINAL above ) as witnesses .

At the next hearing on DATE the forensic expert repeated that the applicant ’s state of health was serious , and that LAW of order no . CARDINAL/N ( issued by the ORG Minister ) concerning the early termination of prison sentences on health grounds was indisputably applicable . He added that necrosis of the tissue of the lower limb had set in and was progressively affecting the limb from the bottom up . If that were to continue , the applicant might develop septicemia and die . In his view , it was impossible to cure the applicant completely .

The applicant ’s doctor – a surgeon who was a member of the prison hospital ’s permanent staff – also gave evidence before ORG , explaining the diagnosis and confirming that his patient was seriously ill , with the arterial disease having reached the fourth and final stage . He said that he had seen the applicant in DATE and also in DATE and that no serious necrosis had been observed at that time . He further explained that at that stage of the disease the treatment usually prescribed was either palliative or surgical . The applicant was being given palliative treatment with medicines ( antioxidants , protective drugs , sedatives ) . An operation was not recommended because it might make his condition worse . The likelihood of the scar healing was nil . The doctor was gradually removing the necrosed tissue in the right foot . The doctor also confirmed that the applicant ’s illness was chronic , progressive and that he needed constant medical treatment . He added that he could not be cured at the prison hospital but that there was a clinic outside the prison that could treat this kind of patient . In answer to a question from the judge , the doctor said that the applicant had been hospitalised twice after his operation and that at the relevant time the necrosis had not reached such an advanced stage . At that time the prison hospital doctors had done all they could to halt the development of the necrosis but without much success . If the situation continued , the applicant might have to have his entire right leg amputated .

The vascular specialist – a doctor at the prison hospital DATE said that he had examined the applicant in DATE and found that the gangrene had already affected the big toe of the right foot . This had then quickly spread , despite the treatment administered . Shortly before the hearing the applicant had been prevented from lying down and had been made to stay in a sitting position . His state of health was worsening DATE . The results of the Tc POCARDINAL test had shown that the oxygen tension in the right foot stood at level QUANTITY in the lying - down position and at level CARDINAL in the sitting position ( the normal level being CARDINAL ; an indicator of CARDINAL was necessary if the wound could be expected to heal properly ) . Accordingly , amputation was impossible . The vascular specialist said that the prison hospital was complying with his orders but that there was no specialist unit . In his view , the applicant ’s lower left limb was also damaged , but not yet affected by gangrene . At the time it was a question of saving the applicant ’s life and subsequently considering whether to amputate the right leg .

In his final address the applicant ’s lawyer drew ORG ’s attention to the fact that , despite the presence of gangrene DATE , the applicant had been sent to Prison No . CARDINAL and left there untreated . Given that , according to the doctors , the applicant could not be cured , the lawyer requested that her client be dispensed from having to serve the remainder of his prison sentence ( under LAW of the ORG ) .

In a judgment of DATE ORG ordered that the applicant ’s prison sentence be suspended pending a substantial improvement in his state of health , provided that he undergo a medical examination DATE and provide the court with the results thereof . The applicant was immediately released .

According to a medical report of DATE , the applicant suffered from cardiac ischaemia , second - degree angina pectoris , thirddegree hypertension and second - degree heart failure . From a cardiological point of view , his heart condition remained serious . With regard to his arteries , the applicant suffered from GPE ’s disease , occlusion of the arteries in the right tibia , stenosis of the arteries in the left tibia , chronic arterial deficiency in the right lower limb at the fourth stage of the disease and gangrene of the tissue in the right big toe . The gangrene was still described as progressive . The experts concluded that the applicant required cardiological and angiological treatment in a specialist institution .

NORP Over DATE and DATE the applicant underwent another forensic examination . It appeared from the report of DATE that on DATE the applicant had had the lower part of his right leg amputated . At the same time he was diagnosed with gangrene on the big toe of the left foot . While confirming his diagnosis from a cardiological point of view as potentially serious the CARDINAL experts involved in the examination also concluded that the applicant ’s angiological condition had deteriorated as a result of ischemia . Thus , from the angiological point of view he was categorised as a seriously ill patient .


Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

NORP The applicant , PERSON , was an NORP national , born in DATE . The President granted the applicants’ requests for his identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . He was represented before the ORG by Mr H. ORG , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

On DATE ORG convicted the applicant of sexual acts with persons under the age of DATE ( LAW ) and with persons under the age of QUANTITY not mature enough to understand the act , taking advantage of this immaturity ( Article CARDINALb of LAW ) , and sentenced him to DATE imprisonment . His criminal record , which at the time consisted of CARDINAL convictions , of which CARDINAL concerned sexual offences involving adolescents , was treated as an aggravating circumstance . These previous convictions were as follows :

- In DATE the applicant was convicted in a NORP court of indecent acts with adolescents ( unzüchtige ORG ) , for which he was sentenced to CARDINAL GPE imprisonment and fined .

- On DATE the Innsbruck ORG convicted him of homosexual acts with consenting male persons DATE ( LAW , as in force at the time ) and sentenced him to QUANTITY months’ imprisonment . On DATE ORG reduced the sentence to CARDINAL months’ imprisonment .

- In DATE the applicant was convicted in ORG of attempted fornication with persons under the age of DATE ( LAW ) and fined .

- In DATE the applicant was convicted in the same court of an offence under the same provision , namely fornication with persons under the age of CARDINAL . He was sentenced to CARDINAL months’ imprisonment .

- In DATE the applicant was convicted in a NORP Court of sexual abuse of persons DATE and sentenced to CARDINAL months’ imprisonment .

- In DATE the applicant was convicted in a NORP Court of the same offence and sentenced to DATE and CARDINAL months’ imprisonment .

- In DATE the applicant was convicted in a NORP court of sexual abuse involving minors ( sexueller PERSON ) and sentenced to CARDINAL years’ imprisonment .

- On DATE ORG convicted him of an offence under LAW , as in force at the time and sentenced him to DATE and CARDINAL months’ imprisonment . On DATE ORG partly acquitted him and reduced the sentence to DATE imprisonment .

- On DATE ORG convicted him of an offence under the same provision and sentenced him to DATE imprisonment . The applicant did not appeal .

On DATE ORG rejected a plea of nullity lodged by the applicant and on DATE ORG dismissed an appeal lodged by him against the judgment of DATE ( see paragraph CARDINAL above ) .

On an unspecified date the applicant asked for early release from prison .

On DATE ORG dismissed the applicant ’s request . It noted that under LAW a court may grant early release if a prisoner has served CARDINAL of his sentence , unless there were specific reasons to expect that this person would commit criminal offences while at liberty . ORG considered that the applicant had not shown that he had seen sense and was still playing down the offences committed by him . Moreover , his numerous previous convictions for sexual offences involving minors ( PERSON ) had not succeeded in getting him to conform to standards of law - abiding behaviour ( normangepasstes ORG ) . For that reason he had to serve his entire prison sentence .

On DATE the applicant lodged an appeal against the decision refusing his early release . He submitted that ORG reliance on his previous convictions under LAW constituted a breach of LAW read in conjunction with LAW , because LAW had been quashed by ORG on DATE as being unconstitutional .

On DATE ORG dismissed the applicant ’s appeal , holding that ORG had acted correctly in taking also the applicant ’s LAW convictions into account , even though the provision was constitutionally problematic . Having examined the files concerning the criminal proceedings against the applicant under that provision , it was apparent from the circumstances of the criminal acts , as well as the age and personality of the victims , that a conviction of the applicant would have also been justified under the legal provisions brought in to replace LAW , which were constitutionally compliant . In view of these considerations , and also taking into account the applicant ’s other convictions , ORG had been correct in concluding that the conditions for the applicant ’s release under LAW of LAW were not fulfilled because of the applicant ’s incorrigible personality , as he resisted all measures of social reintegration , played down his acts and showed no remorse .

Accordingly , the applicant served the full sentence . He died on DATE .


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

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

On DATE the applicant was arrested and placed in a temporary detention centre at the GPE police station ( « Изолятор временного содержания FAC , « ИВС DATE , “ ORG ” ) on suspicion of murder .

The applicant was detained in the ORG on CARDINAL separate occasions : DATE ; CARDINAL DATE and DATE ; CARDINAL DATE and DATE ; and CARDINAL and DATE .

In the applicant ’s submission , the conditions of his detention in the ORG during those CARDINAL periods were essentially identical and as described below .

The ORG was situated in the basement of the police station . The applicant was placed in a cell measuring QUANTITY , which housed CARDINAL people . The walls , floor and ceiling were all covered with cement . There was no ventilation in the cell and consequently it was stuffy . The windows were covered with exterior and interior metal plates with minuscule openings , which gave practically no access to natural light . The cell was lit by a lamp set high up in an alcove in the wall , so there was insufficient light for reading or writing .

In DATE , temperatures inside exceeded CARDINAL and the cell had a high level of humidity . There was no glass in the windows and in DATE it was cold .

No mattresses , bedding , cups , eating utensils or toiletries were distributed . There were no pest control measures in place to eliminate cockroaches and mice . The cell was not connected to a sewer and detainees had to relieve themselves in a bucket , which was removed from the cell once DATE to be emptied . The water which was distributed once a day ( QUANTITY per cell ) was not drinkable . There was no provision for outside exercise or showers .

NORP The applicant was fed once a day . The food was wholly inadequate , both in terms of quality and portion size .

The applicant sustained an injury to his head prior to his arrest . While in the ORG , he did not receive adequate medical treatment for the injury . The applicant – who had contracted tuberculosis in DATE shared a cell with a person who was actually suffering from the open form of the disease at the time of his detention , and this represented a potential risk to his health .

Each of the ORG cells in which the applicant was kept measured QUANTITY and had CARDINAL sleeping places . However , it was impossible to provide more detailed information , as the registration logs for the ORG had been destroyed .

According to the findings of the inquiry carried out by the ORG district prosecutor ’s office on the basis of the applicant ’s complaint , the applicant shared CARDINAL of the cells in which he was kept DATE which was equipped with CARDINAL sleeping places – with CARDINAL inmates . At some point , he was transferred to a solitary confinement cell upon his request . The applicant received CARDINAL meals a day . There were no mice or insects in the cells . The bucket that acted as a substitute for sanitary facilities was cleaned DATE . The applicant had access to drinking water and toiletries . The applicant was provided with adequate medical assistance on request .

On DATE ORG of GPE convicted the applicant of murder and sentenced him to TIME years’ imprisonment . On DATE the Rostov ORG upheld the conviction on appeal .

The applicant was then sent to serve his sentence at a postconviction detention facility in the town of LOC in GPE . The journey there included train travel and accommodation in GPE - type detention facilities ( « следственный изолятор временного содержания ORG , « СИЗО » ) . These facilities generally serve as remand prisons , yet can also be used for the temporary detention of people who have already been convicted .

At certain times DATE and DATE , the applicant was kept in GPE detention facility no . GPE .

The applicant was detained in a cell measuring QUANTITY , which was designed to hold QUANTITY people . However , he shared this cell with QUANTITY other detainees , so they had to sleep in shifts . The bedding supplied was dirty , worn out and covered in bloodstains . Mattresses were also worn out and infested with insects . There was no ventilation . Lights were on day and night . No toiletries were supplied .

In DATE , the cell was extremely humid and stuffy . Owing to water shortages lasting up to DATE , the applicant had difficulties in obtaining drinking water and flushing the lavatory . The cell was infested with insects such as cockroaches . Conditions were unsanitary and no showers were available .

While in detention facility no . IZ-CARDINAL/CARDINAL , the applicant was kept in the following cells :

- cell no . CARDINAL measuring QUANTITY ;

- cell no . CARDINAL measuring QUANTITY .

The Government did not specify the actual number of sleeping places in the cells in question and/or the number of inmates who had shared the cells with the applicant , referring to the fact that the detention facility ’s logbooks had been destroyed .

The Government provided a number of documents dated DATE and signed by the governor of detention facility no . IZ-CARDINAL/CARDINAL , which stated in particular that : ( a ) the number of inmates kept together with the applicant in the CARDINAL cells of GPE detention facility had not exceeded the number of sleeping places available ; ( b ) on DATE an additional new building to accommodate CARDINAL inmates had been opened ; ( c ) there had been no rodents or insects in the facility and the cells had been regularly cleaned and disinfested ; ( d ) each of the CARDINAL cells had been equipped with lavatories which were separated from the living areas and sinks ; and ( e ) detainees had been provided with good - quality food pursuant to internal regulations .

The Government provided CARDINAL handwritten undated statements from IZ-CARDINAL/CARDINAL officials who stated that they “ certainly remembered ” that the applicant had been kept in CARDINAL cells at the facility . In their statements , the officials listed the numbers of the cells and confirmed that he had been provided with an individual sleeping place in each of those cells .

DATE and DATE the applicant was kept in ORG detention facility no . IZ-CARDINAL/CARDINAL .

In the applicant ’s submission , he was kept in a transit cell measuring QUANTITY , which was designed for CARDINAL detainees . Instead , during the relevant period , the cell housed CARDINAL people , who had to sleep in shifts . The applicant suffered from a lack of food and found the food which he was given to be of poor quality . He also sustained numerous painful insect bites which left marks on his body .

According to the ORG , the applicant was kept in cell no . CARDINAL ( measuring QUANTITY ) , cell no . CARDINAL ( measuring QUANTITY ) and cell no . CARDINAL ( measuring QUANTITY ) . The number of sleeping places and/or inmates who had been kept in the cells with the applicant was unknown , as the facility ’s logbooks had been destroyed .

The Government provided documents dated CARDINAL DATE which had been signed by the deputy governor of GPE and which stated that : ( a ) cell no . CARDINAL had been equipped with a sink ; ( b ) during the applicant ’s detention , a private contractor had regularly carried out disinfestation procedures at the detention facility pursuant to a contract which had been concluded on DATE ; and ( c ) detainees had been provided with CARDINAL meals a day , pursuant to the relevant regulations . The Government also enclosed a photo of a sink and invoices from the disinfestation contractor which were dated DATE .

DATE the applicant was kept in PERSON detention facility no . IZ-CARDINAL/CARDINAL .

According to the applicant , he was placed in a cell measuring QUANTITY , together with CARDINAL other inmates . No bedding was supplied . The cell was infested with insects . After DATE there , he was moved to another cell measuring QUANTITY , which housed thirtyfive people . The cell had a row of benches , which were no use for sitting on , let alone sleeping on . No food or drinking water was provided .

In the ORG ’s submission , the applicant was kept in cell no . CARDINAL ( measuring QUANTITY ) , cell no . CARDINAL ( measuring QUANTITY ) , cell no . CARDINAL ( measuring QUANTITY ) and cell no . CARDINAL ( measuring QUANTITY ) . In each cell , he was provided with an individual sleeping place and bedding . The number of inmates who were kept in the cells with the applicant was unknown , as was the number of sleeping places which were available , as the logbooks had been destroyed .

The Government provided documents dated CARDINAL DATE and signed by the governor of IZ-CARDINAL/CARDINAL confirming that the applicant had been detained in the facility DATE . There had been no rodents or insects in the cell during this period , and the cell had been equipped with sanitary facilities . The applicant had been provided with access to a shower upon his arrival at the facility and had been provided with food , pursuant to the relevant regulations . The cell had been equipped with CARDINAL sleeping spaces and had housed CARDINAL inmates . The Government also enclosed contracts for disinfestation services , as well as relevant invoices .

Another document dated CARDINAL DATE and signed by the head of the GPE regional department of ORG ( “ the GPE ORG ” ) stated that , CARDINAL DATE , the applicant had been kept in cell no . CARDINAL at FAC . According to the document , this cell measured QUANTITY and was equipped with CARDINAL sleeping places , and the applicant had shared it with CARDINAL other inmates .

The applicant made a complaint to various public authorities , including the prosecutor ’s office and courts , in relation to the alleged lack of adequate medical assistance and the conditions of detention in the IVS ( see paragraphs CARDINAL to CARDINAL above ) . In particular , he alleged that he had sustained a post - traumatic brain injury , contracted tuberculosis and become ill with gastritis , astigmatism , alimentary anaemia and muscular hypotrophy while in detention .

As regards his complaint to the prosecutor ’s office it appears that on DATE the ORG district prosecutor ’s office refused to initiate criminal proceedings regarding the alleged poor conditions of the applicant ’s detention in the ORG . The applicant was not provided with a copy of that decision . A further refusal was issued on DATE . However , the prosecutor found that the applicant ’s allegations concerning the conditions of detention in the ORG “ had been confirmed in part ” , but that such conditions did not constitute a crime under LAW . He also indicated that the head of the police station had been instructed to remedy the irregularities which had been identified . The applicant was not given access to the prosecutor ’s inquiry file .

On DATE ORG of GPE upheld the prosecutor ’s decision . On DATE ORG upheld the first - instance judgment .

As regards other court proceedings , in DATE the applicant initiated civil proceedings , claiming compensation for the nonpecuniary damage caused by the conditions of detention in the ORG and the lack of adequate medical assistance rendered to him in that facility . On CARDINAL occasions – on DATE and DATE , and on DATE ORG invited the applicant to eliminate discrepancies in his statements of claim . The applicant did not comply with the court ’s requests , neither did he appeal against the court ’s rulings . ORG left the claims unexamined .


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

Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On CARDINAL DATE the applicant lodged an action with the Bratislava V ORG ( ORG súd ) seeking a ruling declaring that a meeting of flat owners in a block of flats held on DATE was contrary to the law , and that the decisions adopted at that meeting were void .

The defendant of the action was an entity with legal personality referred to as a community of owners of residential and non - residential LOC in the given building ( “ the defendant ” ) . Such entities are officially registered with the local ORG ( obvodný úrad ) . The defendant was so registered with ORG in GPE .

On DATE a submission was made to ORG by a lawyer indicating that he was acting on behalf of the defendant and informing the court that on DATE the defendant had ceased legally to exist . In that connection he submitted a letter from ORG which indicated that the defendant had been struck out of the relevant register on DATE , the context being that the administration of the building was no longer the responsibility of the defendant and that that responsibility had been transferred to a specialised agency .

On DATE the applicant requested that a hearing scheduled before ORG for DATE be postponed sine die . She submitted that she had just learned of the striking out of the defendant by consulting the relevant register , and that she would make a further submission once she had analysed the situation , for which she needed time . The hearing scheduled for DATE was accordingly adjourned .

On DATE ORG discontinued the proceedings , on the grounds that the defendant had ceased to exist and had no legal successor . In particular , ORG held that neither the individual owners of the flats in the building nor the newly contracted administration agency could be considered as having succeeded to the defendant ’s position in the proceedings .

On DATE the applicant appealed ( odvolanie ) , raising CARDINAL principal arguments .

First , she submitted that the administration agency was the successor to the original defendant , and that consequently the proceedings should have continued against it .

Second , even assuming that the first contention was not correct , the court should not have terminated the proceedings but should rather have stayed them pending the outcome of another set of proceedings before the same ORG , in which a decision was being contested which had been taken at another meeting of the flat owners on DATE , to the effect that the defendant should be wound up ( zrušenie ) . If that other set of proceedings ended with a ruling declaring the winding up of the original defendant void , its striking out of the given register would lose basis and the proceedings could continue against that defendant . More details about those other proceedings are set out below ( see paragraphs CARDINAL et seq . ) .

On DATE ORG ( PERSON súd ) upheld the first - instance decision , noting that the defendant had been struck out of the relevant register and had thereby lost capacity to be a party to the proceedings , in which situation there was no alternative to a discontinuance of the proceedings . The relevant legal provisions were referred to , but no reasons were offered for the latter conclusion .

On DATE the applicant appealed on points of law ( dovolanie ) , relying on Article CARDINAL ( f ) of LAW ( Law no . PERSON . , as amended ) ( “ the ORG ” ) , under which such an appeal was admissible if the courts had prevented a party to the proceedings from pursuing a case before them . In particular , she argued that ORG had provided neither any factual nor legal grounds for its conclusion , as a result of which it was not amenable to review . In addition , she pursued and further developed the same line of argument as in her appeal .

On DATE ORG ( Najvyšší súd ) declared the applicant ’s appeal on points of law inadmissible , holding that the shortcomings alleged by the applicant did not fall within the purview of LAW ( f ) of the ORG . This applied specifically to the alleged deficiency in ORG reasoning and the alleged errors of fact and law in the lower courts’ decisions .

In addition , in so far as the applicant had contested an error of procedure in that the courts had failed to stay the proceedings rather than to terminate them , ORG held that staying the proceedings was an option and not a duty of the court concerned , and that the fact that the present proceedings had not been stayed did not make out the admissibility ground cited by the applicant .

As the appeal was not admissible , ORG did not examine the merits of the case .

On DATE the applicant lodged a complaint under LAW of LAW ( Constitutional Law no . PERSON . , as amended ) with ORG ( Ústavný súd ) . She directed the complaint against all CARDINAL levels of the ordinary courts and pursued and further developed in principle the arguments described above .

She considered that the discontinuance of the proceedings had been unlawful , submitted that it had been a mistake of the ordinary courts not to have examined the merits of her claim , and argued that this had amounted to a breach of her rights of access to court and to a fair hearing LAW CARDINAL § CARDINAL of the Convention .

On DATE ORG declared the complaint inadmissible . It considered it separately with reference to the individual levels of ordinary jurisdiction involved .

As regards the alleged shortcomings in the proceedings leading to ORG decision of CARDINAL DATE , it held that the applicant had failed to submit her complaint within the statutory time - limit of DATE .

As regards ORG , it observed that the central argument in the applicant ’s appeal on points of law was the alleged error of law . In that regard , it went on to hold , inter alia , that :

“ ORG ... rightfully emphasised ... that , as there were no grounds on which the applicant ’s appeal on points of law would be admissible , it was not possible for it to review the merits of ORG decision . ORG did not exclude in a binding manner that the decision of ORG was the result of a wrongful legal assessment of the matter , nor did it exclude the possibility of there having been another error in the proceedings before it which had resulted in a wrongful decision on the merits . ”

Nevertheless , ORG found that , as regards the admissibility of the applicant ’s appeal , ORG had given relevant reasons for its decision and that that decision was not arbitrary .

In particular , it also noted that , should the other set of proceedings end with a ruling declaring the winding up of the defendant void , this would create for the applicant the opportunity to seek reopening of the proceedings in her case . Future examination of that case on the merits thus could not be completely excluded . However , at the same time , ORG noted that even if the winding up of the defendant were to be declared void , this would not automatically mean that the defendant would legally come into existence once more . The coming into being of a legal entity such as the defendant required incorporation , which in turn necessitated a decision of ORG , and could not result directly from a judicial decision .

The Constitutional Court ’s decision was served on the applicant on CARDINAL DATE .

On DATE an individual brought proceedings against the above - mentioned defendant as well as the above - mentioned newly appointed management agency , seeking a ruling declaring void a decision to wind up the defendant taken at a meeting of flat owners in the block held on DATE ( see paragraph CARDINAL above ) .

After the first dismissal of the action was quashed following the claimant ’s appeal , the action was again dismissed by ORG on DATE and , following the claimant ’s appeal , by ORG on DATE .

On DATE the claimant challenged the judgments last mentioned by way of a complaint to ORG .

The complaint appears to be still pending .


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in DATE and lives in GPE .

At the time of the events in question the applicant was the vicepresident of ORG ( Hak ve PERSON – ORG ) .

On DATE the party held its first ordinary congress at a restaurant in GPE , where the applicant was elected by the delegates to act as the meeting ’s chairman .

On DATE a public prosecutor at the GPE public prosecutor ’s office filed an indictment with ORG against CARDINAL members of ORG , including the applicant , for acting in violation of section CARDINAL ( c ) of PERSON no . PERSON during the congress on the grounds , inter alia , that there had been banners in NORP and that most of the speeches given by the delegates had been in NORP .

The applicant acknowledged before the first - instance court that he had not intervened as the chairman when certain delegates had spoken in NORP . In this connection , he submitted that , as a founder member of PERSON , he believed that NORP should be used in all areas of life ; that those who spoke NORP were speaking in their mother tongue ; and that he believed that it was neither legal nor ethical for him to intervene to force people to speak in a language other than their mother tongue . He maintained that such speeches could not have constituted an offence , when taking into account laws that had been enacted in compliance with the conditions for membership of ORG , and the provisions of LAW . In this connection , the applicant also submitted that the relevant provisions of PERSON no . CARDINAL were contrary to LAW .

On DATE the first - instance court dismissed an application from the defendants to suspend the proceedings and transfer the case to ORG for examination of the compatibility of the relevant provisions with LAW .

On DATE ORG convicted the applicant of the charges . In particular , the court considered that the applicant had , despite warnings from a government superintendent present at the congress , continued to allow certain delegates to give their speeches in NORP , in breach of LAW ( c ) of PERSON no . PERSON . The applicant was sentenced to DATE imprisonment .

On DATE ORG quashed the judgment of the first - instance court on the ground that the latter had failed to give any consideration to whether the conditions for suspending the delivery of the judgment against the defendants , pursuant to LAW , had been met .

On DATE ORG ordered that the criminal proceedings against the applicant and the other defendants be terminated , on the ground that the statutory time - limit prescribed under domestic law had expired .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

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


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

On DATE the applicant submitted a traffic accident report to an insurance company . According to that report she had been involved in a traffic accident in her car on DATE . On DATE the applicant submitted additional explanations to the insurance company . She stated that she had not known the other persons involved in the accident , that she had completed the accident report in her vehicle after the accident and that her friend PERSON had come to pick her up at the scene of the accident . The insurance company suspected fraud and informed the police . On DATE criminal proceedings were opened . The applicant was charged with insurance fraud and inciting PERSON knowingly to give false testimony . The other accused were PERSON , PERSON , NORP and ORG

On DATE a prosecutor drew up a bill of indictment against the applicant , P. , PERSON , ORG and ORG According to the bill of indictment , it had been established in the criminal investigation that the applicant , contrary to her allegations , had not been at the scene of the alleged accident . This was confirmed by the positioning of her mobile phone at the time of the accident , her phone call records and ORG statement . It was established that the applicant together with the other accused had submitted false information to the insurance company concerning the occurrence of an insured event , the persons who had been involved in the traffic accident , and the circumstances of the accident . The applicant was therefore charged with insurance fraud . In addition , it was established that the applicant had incited PERSON to give false testimony concerning the fact that she had gone to pick the applicant up at the scene of the accident . This had been confirmed by ORG statement . The applicant was therefore charged with inciting another person knowingly to give false testimony . It was noted in the statement of charges that no pecuniary damage had been caused by the offences because the insurance company had declined to make the corresponding payout when the suspicion of an offence arose . On the basis of this statement of charges the applicant was committed for trial .

On DATE ORG held a hearing in the criminal proceedings against the applicant , P. , PERSON , NORP and PERSON At this hearing the prosecutor asked the court to discontinue the criminal proceedings against the applicant and PERSON under LAW seadustik ) . According to TIME of the hearing , the prosecutor stated that the applicant had committed offences of a less serious nature ( “ in the second degree ” ) , that she had been involved in the commission of those offences at the instigation of the co - accused , thereby demonstrating that her guilt was less , and that she had no previous convictions . In requesting the imposition of certain public law obligations , the prosecutor had also taken into account the fact that the applicant had been raising a small child on her own . The applicant and her counsel explicitly accepted this reasoning put forward by the prosecutor in support of discontinuance of the criminal proceedings . They also consented to the prosecutor ’s request that the applicant be ordered to pay the procedural costs and perform community service .

By a ruling of DATE ORG discontinued the criminal proceedings in respect of the applicant and P. on the basis of LAW and ( CARDINAL ) of LAW ( the “ CCrP ” ) . The applicant was ordered to pay CARDINAL kroons ( EEK ) ( QUANTITY ( ORG ) ) to the public purse and perform TIME of community service . In the event of the applicant ’s failure to perform these obligations , the court would ‒ at the request of ORG ‒ resume the criminal proceedings .

ORG ruling contained a detailed description of the charges against the applicant and P. It further noted that the prosecutor had requested the discontinuance of the criminal proceedings in respect of the applicant and PERSON on the basis of LAW since the offence in question had been an offence in the second degree , both the applicant and PERSON had been involved in it at the instigation of other persons , and neither of them had had a previous criminal record . Their guilt had been negligible and there had been no public interest in the continuation of the criminal proceedings . The prosecutor had requested the imposition on the applicant of the obligations indicated above . The court also noted that both the applicant and P. ‒ as well as their lawyers ‒ had agreed to the discontinuance of the proceedings and the imposition of the obligations requested by the prosecutor . The part of the ruling setting out ORG conclusion read as follows :

“ The criminal proceedings in respect of the charges against [ the applicant ] ... have to be discontinued on the basis of LAW and ( CARDINAL ) of the [ Code of Criminal Procedure ] as all the legal requirements have been fulfilled . This is an offence in the second degree , the guilt of the accused is negligible , no proprietary damage has been caused and there is no public interest in the continuation of the proceedings .

On the basis of LAW ) points CARDINAL and CARDINAL of the [ Code of Criminal Procedure ] the obligations requested by the prosecutor have to be imposed on the applicant ... ”

By a judgment of DATE , in settlement proceedings concerning the same criminal case , ORG convicted PERSON , ORG and ORG of insurance fraud . It was noted in the judgment that ORG and the applicant ‒ whose name was replaced with initials in the judgment ‒ had not been present at the scene of the alleged accident . It was also stated that the applicant and PERSON had drafted and that the applicant , T. and PERSON had signed and submitted to the insurance company documents containing false information about the traffic accident . It was further stated that by these acts PERSON , the applicant , T. and ORG had jointly created the illusion of the occurrence of an insured event with the aim of claiming an insurance payout .

On DATE the applicant claimed EEK CARDINAL,CARDINAL.CARDINAL ( ORG CARDINAL ) from the insurance company by way of compensation related to the traffic accident that had given rise to the above criminal proceedings . The insurance company rejected the claim , arguing that it had been established by ORG judgment of DATE that the traffic accident had been staged .

NORP By DATE the applicant had performed the obligations imposed on her in the ruling of DATE .

On DATE the applicant brought a civil suit against the insurance company . In support of her insurance claim , the applicant submitted as evidence to the court the claims sent to the insurance company after the event in DATE , a copy of the DATE ruling ordering discontinuance of the criminal proceedings , and documents proving the extent of the damage . The insurance company , for its part , submitted to the court the DATE judgment in the criminal case ( see paragraph CARDINAL above ) . The defendant argued that the judgment , together with the ruling ordering discontinuance of the proceedings , was sufficient to negate the applicant ’s claim that a genuine traffic accident had taken place as she alleged .

The applicant ’s claim was dismissed by a judgment of ORG on DATE . The court held as follows :

“ ORG established by a final judgment in the criminal case ... that the traffic accident which , according to the [ applicant ’s ] allegations , had taken place on DATE , had been staged . According to the judgment ... CARDINAL individuals were found guilty of having staged a collision between an PERSON , an ORG ACARDINAL and a ORG SCARDINAL allegedly driven by the [ applicant ] at TIME on DATE . The [ applicant ] made a claim to the [ insurance company ] for compensation for the damage caused to the vehicle by the alleged traffic accident ... . According to the claim the [ applicant ] had been driving the car that was involved in the accident . It was established by ORG ruling of DATE ... that the [ applicant ] had not been at the scene of the traffic accident and that it had been staged . Nevertheless , ... the [ applicant ] submitted to the [ insurance company ] a statement containing false information and a claim for compensation for damage caused by an alleged insurance event . The [ applicant ] was charged with an offence under LAW of the [ LAW ] , namely intentionally causing an insured event to happen and creating the illusion of the occurrence of an insured event with the intention of obtaining compensation from the insurer . The prosecutor requested ... the discontinuance of the criminal proceedings on the basis of LAW ] since it was an offence in the second degree , the guilt of the accused was negligible , and there was no public interest in the continuation of the proceedings . The [ applicant ] erroneously concluded that , because of the [ prosecutor ’s ] request and the discontinuance of the criminal proceedings , [ she ] had a right to claim the insurance payout . An insurance payout is made by an insurer only if an insured event has occurred . In the present case it had been established by a judgment and a ruling of a court that no insured event had occurred and that the traffic accident had been staged . The [ applicant ] therefore had no grounds for claiming the payout ... from the [ insurance company ] . ... In the present case , no accident took place .

The [ applicant ] is wrong in her understanding that she is not guilty because of the discontinuance of the criminal proceedings against her [ on the basis of ] LAW ( CARDINAL ) and ( CARDINAL ) [ of LAW ] . LAW [ of LAW ] provides that if the object of criminal proceedings is a criminal offence in the second degree and the guilt of the person suspected or accused of the offence is negligible , and he or she has remedied or has begun to remedy the damage caused by the criminal offence or has paid the expenses relating to the criminal proceedings , or has assumed the obligation to pay such expenses , and there is no public interest in the continuation of the criminal proceedings , ORG may request discontinuance of the criminal proceedings by a court with the consent of the suspect or accused . It follows from this provision that the person ’s guilt exists but it is negligible and that he or she has begun to remedy it or has assumed the obligation to pay the expenses relating to the criminal proceedings . ”

The applicant appealed , complaining , inter alia , about the breach of her right to the presumption of innocence by ORG . Although there had been no judgment finding her guilty in connection with the traffic accident of DATE , ORG in its judgment of DATE in a civil case had regarded her as being guilty of the offence . She argued that her consent to pay the expenses relating to the criminal proceedings did not mean that she had committed the offence . By its judgment of DATE in a criminal case ORG had convicted PERSON , T. and ORG but not the applicant .

On DATE ORG dismissed the appeal and upheld ORG judgment , holding as follows :

“ CARDINAL . The [ applicant ] is mistaken in arguing that ORG had wrongly interpreted the legal nature and the evidentiary value , in respect of the person ’s admission of guilt , of the ruling ordering discontinuance of the criminal proceedings .

ORG has correctly found , relying on what was established by ORG ruling and judgment of DATE , that the [ applicant ] took part ... in the staging of a traffic accident the aim of which was to cause an insured event to happen and to create the illusion of the occurrence of that insured event with the intention to obtain compensation from the insurer .

According to LAW ] court decisions in other cases are deemed to be documentary evidence .