Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicants , PERSON and his wife and CARDINAL minor children , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively . The President granted the applicants’ request for their identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . They were represented before the ORG by ORG , a lawyer practising in GPE .

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

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

The applicants are a family from the ORG region of GPE . They belong to the NORP ethnic minority and are NORP by religion . The first applicant , the father of the family , worked as a taxi driver and also had a car repair shop . The couple have not been politically , socially or religiously active . However , in DATE they started to have problems . The first applicant claims that for DATE in DATE , he worked as a driver for CARDINAL men who were apparently involved in insurgency acts . CARDINAL of the men was killed in DATE and the other managed to escape the country .

At DATE the first applicant claims that masked men in army clothes came to his car repair shop to look for his client , whose car was in the shop . As the client was not there , the men took him instead and kept him in some sort of cellar for DATE and ill - treated him . He was questioned about his client and about the CARDINAL men he had driven around in DATE . The applicant was threatened with charges for having participated in armed attacks He was allegedly asked also to pay MONEY in order not to be charged . He paid CARDINAL of the sum when he was released . After that his wife and children went to live with other relatives . The first applicant was in hiding for the rest of DATE and escaped in DATE to GPE through GPE and GPE , with a tourist group holding a GPE visa .

While the rest of the family stayed with relatives , the armed men came to search for information about the first applicant from their neighbours and at the house of the second applicant ’s mother . They did not know where the first applicant had gone , so they fled to GPE . Through other asylum seekers they obtained information that the first applicant was in GPE and they travelled there to seek asylum .

The second applicant submitted to the NORP authorities CARDINAL faxed documents in NORP with their NORP translations . Those documents were addressed to the first applicant in DATE and DATE by the investigative department of ORG and he was summoned for questioning as a crime suspect . The crime of which he was suspected was not , however , mentioned in the documents . The first applicant claims that he does not know why he is wanted , but claims that sometimes ethnicity and religion suffice to arouse the suspicion of the security authorities in ORG .

The first and the second applicants both suffer from somewhat severe post - traumatic stress disorder and depression . The first applicant has also been suffering from headaches , insomnia and prostate problems which have been treated at the reception centre . Only in DATE he sought help for his psychological problems . He was subsequently examined and treated at ORG , ORG för rehabilitering av tortyroffer ) in GPE . The Deputy Chief Physician of the ORG recommended both private and group therapy together with medication for his trauma . No physical signs of ill - treatment were , however , reported . The second applicant has had symptoms of amnesia attacks and uncontrollable behaviour . She has been treated DATE and referred to ORG in GPE for further examination and treatment .

On DATE the applicants submitted information to the ORG that the third applicant , the son of the family born in DATE , had gone missing on DATE . The third applicant was found on DATE and subsequently reunited with the other applicants . On DATE the second applicant gave birth to a third child who is suffering from a kidney pelvis extension .

The first applicant arrived in GPE on DATE and immediately sought asylum . On DATE ORG ( GPE , PERSON ) rejected the application , considering it not probable that the NORP authorities would be especially interested in the applicant as he had not been politically , socially or religiously active . It furthermore considered that , as the security situation was indeed relatively poor in ORG , the applicant could in any event always relocate internally inside GPE .

The second , third and fourth applicants had sought asylum in GPE on DATE but their applications were rejected on DATE and their appeal was rejected on DATE . They arrived in GPE on DATE and sought asylum on DATE .

Meanwhile , the first applicant had appealed against the negative asylum decision . On DATE ORG ( hallinto - oikeus , förvaltningsdomstolen ) referred the first applicant ’s case back to ORG in order for them to consider the applications of the whole family together .

On DATE ORG rejected the asylum applications of the whole family and ordered their removal to GPE . It considered firstly that in the first applicant ’s first asylum application he mentioned the problems in ORG only in very general and vague terms and without specifying any personal threats . The story became personal only in the first asylum interview . Also the authenticity of the copies of “ summonses ” submitted by the applicant was impossible to verify . Moreover , ORG went on to consider that , as the applicants had not been in any way active or profiled persons , it was unlikely that the NORP authorities would be interested in them if returned to GPE . The applicants could in any event relocate internally .

NORP By letter dated DATE the applicants appealed , requesting that the decision of ORG be quashed and that they be granted asylum , or alternatively , secondary protection or a residence permit due to individual humanitarian circumstances , taking into consideration also the best interest of the children and the unreasonableness of the expulsion . They also requested that an oral hearing be held .

On DATE ORG rejected the ORG appeal and refused their request for an oral hearing as unnecessary . It considered , like ORG , that the authenticity of the faxed documents named “ summons ” was impossible to verify and they did not appear exactly credible . It was impossible to draw any conclusions from those summonses regarding the events about which the applicants were complaining . On the other hand , there were no reasons to doubt the applicants’ story or their credibility overall . However , the sole fact that the first applicant had been a driver for some insurgents in DATE did not seem the sort of activity which would arouse the interest of the NORP authorities . The acts directed against him in DATE were aimed at obtaining information from him about the others , but he was not personally suspected of any illegal activism himself . As the applicants had not been otherwise active and had no other contact with the insurgents , ORG concluded that it was unlikely that the NORP authorities would persecute the applicants if returned to GPE . It furthermore considered that the security situation was indeed unstable in the region but that it alone did not give rise to a need for international protection .

NORP By letter dated DATE the applicants appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting also a stay on the execution of their expulsion order , which was not granted .

On DATE ORG refused the applicants leave to appeal .

According to LAW , paragraph CARDINAL , of the LAW of Finland ( NORP perustuslaki , PERSON grundlag ; Act no . CARDINAL/CARDINAL ) , the right of foreigners to enter GPE and to remain in the country is regulated by an LAW . A foreigner shall not be deported , extradited or returned to another country , if in consequence he or she is in danger of a death sentence , torture or other treatment violating human dignity .

According to section DATE , subsection CARDINAL , of LAW ( ulkomaalaislaki , utlänningslagen ; Act no . CARDINAL ) , aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well - founded fear of being persecuted for reasons of ethnic origin , religion , nationality , membership of a particular social group or political opinion and if they , because of this fear , are unwilling to avail themselves of the protection of that country .

Section CARDINAL , subsection CARDINAL , of the LAW ( as amended by Act no . CARDINAL/CARDINAL ) provides that an alien residing in GPE is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under LAW are not met , but substantial grounds have been shown for believing that the person , if returned to his or her country of origin or country of former habitual residence , would face a real risk of being subjected to serious harm , and he or she is unable , or owing to such risk , unwilling to avail himself or herself of the protection of that country . Serious harm means : CARDINAL ) the death penalty or execution ; CARDINAL ) torture or other inhuman or degrading treatment or punishment ; or CARDINAL ) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts .

NORP Under section CARDINALa of the LAW ( as amended by Act no . CARDINAL/CARDINAL ) , an alien residing in GPE is issued with a residence permit on the basis of humanitarian protection , if there are no grounds under LAW or CARDINAL for granting asylum or providing subsidiary protection , but he or she can not return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation .

According to section CARDINALb of the LAW ( as amended by Act no . CARDINAL/CARDINAL ) , the well - founded fear of being persecuted referred to in section CARDINALb or the real risk of being subjected to serious harm referred to in section CARDINAL may be based on incidents after the applicant ’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure .

Section CARDINAL , subsection CARDINAL , of the LAW ( as amended by Act no . ORG ) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant ’s statements on his or her circumstances in the ORG in question and of real time information on the circumstances in that ORG obtained from various sources . After obtaining the statement , the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible , and if the authorities are convinced of the veracity of the application with regard to the applicant ’s need for international protection .

According to section CARDINAL of the Act , no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty , torture , persecution or other treatment violating human dignity or from where he or she could be sent to such an area .

Section CARDINALb of LAW ( as amended by LAW no . CARDINAL/CARDINAL ) incorporates into the NORP legal system the ORG CARDINAL of DATE on the organisation of joint flights for removals from the territory of CARDINAL or more member GPE , of third - country nationals who are subjects of individual removal orders . The annex to the ORG contains common guidelines on security provisions for joint removals by air including , inter alia , an obligation for the member GPE to ensure that the returnees for whom they are responsible are in an appropriate state of health , which allows legally and factually for safe removal by air .

According to ORG on GPE for DATE :

“ The government failed to take adequate steps to prosecute or punish most officials who committed abuses , resulting in a climate of impunity . Rule of law was particularly deficient in LOC , where conflict among government forces , insurgents , NORP militants , and criminal forces led to numerous human rights abuses , including killings , torture , physical abuse , and politically motivated abductions . ”

The World Health Organisation ’s ( WHO ) Mental Health Atlas from DATE provides the following information on the mental health care situation in GPE :

“ Mental health is a part of primary health care system . Actual treatment of severe mental disorders is not available at the primary level . The practice of recognition and treatment of depression in primary care is developing in several regions . ... There are community care facilities for patients with mental disorders . A social rehabilitation system including workshops , rehabilitation units in industrial firms and residential homes ( for CARDINAL persons ) exists . Day care facilities are available for CARDINAL persons . Home care is also provided in some cases .

The system of ORG consists of CARDINAL mental hospitals , CARDINAL psycho - neurological outpatient clinics ( dispensaries ) that include day - hospitals as separate wards in their structure ( each dispensary provides sectorised coverage to a population of CARDINAL people ) ; DATE psychoneurological consulting rooms in rural areas ; CARDINAL psychotherapeutic rooms , mostly in primary care facilities . There are also beds in CARDINAL hostels , nursing homes and ‘ GPE under the authority of ORG .

The country has specific programmes for mental health for refugees , disaster affected population and elderly . Programmes on refugees and disaster victims are carried out by ORG ( EMERCOM ) . Elderly population are looked after by ORG .

The following therapeutic drugs are generally available at the primary health care level of the country : carbamazepine , ethosuximide , phenobarbital , phenytoin sodium , sodium valproate , amitriptyline , chlorpromazine , diazepam , fluphenazine , haloperidol , lithium , biperiden , carbidopa , levodopa . ORG approved the list of mentally ill who would receive free medication in DATE , the funds for which were to be allocated by local institutions . ”


Violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 1 of Protocol No. 1 - Possessions;Article 1 of Protocol No. 1 - Protection of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

The applicant , already in receipt of an old - age pension , took up employment with GPE as a civil servant , as of DATE .

On DATE an amendment to LAW entered into force , according to which the disbursement of those old - age pensions whose beneficiaries are simultaneously employed within certain categories of the public sector will be suspended for the duration of their employment . No such restriction was put in place in respect of those who are in receipt of an old - age pension while being employed within the private sector .

In application of this new rule , on DATE the disbursement of the applicant ’s pension was suspended . The applicant ’s administrative appeal to ORG was to no avail .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;André Potocki;Angelika Nußberger;Armen Harutyunyan;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Iulia Motoc;Jon Fridrik Kjølbro;Ledi Bianku;Luis López Guerra;Marko Bošnjak;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paulo Pinto De Albuquerque;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Georges Ravarani

From DATE to CARDINAL DATE he was employed in the GPE office of LOC , a NORP private company ( “ the employer ” ) , as a sales engineer . At his employer ’s request , for the purpose of responding to ORG enquiries , he created an instant messaging account using ORG , an online chat service offering real - time text transmission over the internet . He already had another personal PERSON account .

NORP The employer ’s internal regulations prohibited the use of company resources by employees in the following terms :

“ Any disturbance of order and discipline on company premises shall be strictly forbidden , in particular :

– ... personal use of computers , photocopiers , telephones or telex or fax machines . ”

The regulations did not contain any reference to the possibility for the employer to monitor employees’ communications .

It appears from documents submitted by the Government that the applicant had been informed of the employer ’s internal regulations and had signed a copy of them on DATE after acquainting himself with their contents .

On DATE the GPE office received and circulated among all its employees an information notice that had been drawn up and sent by the GPE head office on DATE . The employer asked employees to acquaint themselves with the notice and to sign a copy of it . The relevant parts of the notice read as follows :

“ CARDINAL . ... ORG spent in the company must be quality time for everyone ! Come to work to deal with company and professional matters , and not your own personal problems ! Do n’t spend your time using the internet , the phone or the fax machine for matters unconnected to work or your duties . This is what [ elementary education ] , common sense and the law dictate ! The employer has a duty to supervise and monitor employees’ work and to take punitive measures against anyone at fault !

Your misconduct will be carefully monitored and punished !

NORP Because of repeated [ disciplinary ] offences vis - à - vis her superior , [ as well as ] her private use of the internet , the telephone and the photocopier , her negligence and her failure to perform her duties , PERSON was dismissed on disciplinary grounds ! Take a lesson from her bad example ! Do n’t make the same mistakes !

Have a careful read of the collective labour agreement , the company ’s internal regulations , your job description and the employment contract you have signed ! These are the basis of our collaboration ! Between employer and employee ! ... ”

It also appears from the documents submitted by the Government , including the employer ’s attendance register , that the applicant acquainted himself with the notice and signed it CARDINAL DATE .

In addition , it transpires that from CARDINAL to CARDINAL DATE the employer recorded the applicant ’s PERSON communications in real time .

On DATE at TIME the applicant was summoned by his employer to give an explanation . In the relevant notice he was informed that his ORG communications had been monitored and that there was evidence that he had used the internet for personal purposes , in breach of the internal regulations . Charts were attached indicating that his internet activity was greater than that of his colleagues . At that stage , he was not informed whether the monitoring of his communications had also concerned their content . The notice was worded as follows :

“ Please explain why you are using company resources ( internet connection , Messenger ) for personal purposes during TIME , as shown by the attached charts . ”

On DATE , the applicant informed the employer in writing that he had used PERSON for work - related purposes only .

At TIME the employer again summoned him to give an explanation in a notice worded as follows :

“ Please explain why the entire correspondence you exchanged DATE using the PERSON [ internet ] site ORG had a private purpose , as shown by the attached CARDINAL pages . ”

The CARDINAL pages mentioned in the notice consisted of a transcript of the messages which the applicant had exchanged with his brother and his fiancée during the period when he had been monitored ; the messages related to personal matters and some were of an intimate nature . The transcript also included CARDINAL messages that the applicant had exchanged with his fiancée using his personal PERSON account ; these messages did not contain any intimate information .

Also on DATE , the applicant informed the employer in writing that in his view it had committed a criminal offence , namely breaching the secrecy of correspondence .

On DATE the employer terminated the applicant ’s contract of employment .

NORP The applicant challenged his dismissal in an application to ORG ( “ the ORG ” ) . He asked the court , firstly , to set aside the dismissal ; secondly , to order his employer to pay him the amounts he was owed in respect of wages and any other entitlements and to reinstate him in his post ; and thirdly , to order the employer to pay him MONEY ( MONEY ) in damages for the harm resulting from the manner of his dismissal , and to reimburse his costs and expenses .

As to the merits , relying on PERSON v. GPE ( no . GPE , § § DATE , ORG CARDINALI ) , he argued that an employee ’s telephone and email communications from the workplace were covered by the notions of “ private life ” and “ correspondence ” and were therefore protected by LAW . He also submitted that the decision to dismiss him was unlawful and that by monitoring his communications and accessing their contents his employer had infringed criminal law .

With regard specifically to the harm he claimed to have suffered , the applicant noted the manner of his dismissal and alleged that he had been subjected to harassment by his employer through the monitoring of his communications and the disclosure of their contents “ to colleagues who were involved in CARDINAL way or another in the dismissal procedure ” .

The applicant submitted evidence including a full copy of the transcript of his ORG communications and a copy of the information notice ( see paragraph CARDINAL above ) .

In a judgment of DATE ORG rejected the applicant ’s application and confirmed that his dismissal had been lawful . The relevant parts of the judgment read as follows :

“ The procedure for conducting a disciplinary investigation is expressly regulated by the provisions of LAW .

In the instant case it has been shown , through the written documents included in the file , that the employer conducted the disciplinary investigation in respect of the applicant by twice summoning him in writing to explain himself [ and ] specifying the subject , date , time and place of the interview , and that the applicant had the opportunity to submit arguments in his defence regarding his alleged acts , as is clear from the CARDINAL explanatory notices included in the file ( see copies on sheets CARDINAL and CARDINAL ) .

The court takes the view that the monitoring of the internet conversations in which the employee took part using the ORG Messenger software on the company ’s computer during working hours – regardless of whether or not the employer ’s actions were illegal in terms of criminal law – can not undermine the validity of the disciplinary proceedings in the instant case .

The fact that the provisions containing the requirement to interview the suspect ( învinuitul ) in a case of alleged misconduct and to examine the arguments submitted in that person ’s defence prior to the decision on a sanction are couched in imperative terms highlights the legislature ’s intention to make respect for the rights of the defence a prerequisite for the validity of the decision on the sanction .

In the present case , since the employee maintained during the disciplinary investigation that he had not used PERSON for personal purposes but in order to advise customers on the products being sold by his employer , the court takes the view that an inspection of the content of the [ applicant ’s ] conversations was the only way in which the employer could ascertain the validity of his arguments .

The employer ’s right to monitor ( monitoriza ) employees in the workplace , [ particularly ] as regards their use of company computers , forms part of the broader right , governed by the provisions of LAW d ) of LAW , to supervise how employees perform their professional tasks .

Given that it has been shown that the employees’ attention had been drawn to the fact that , shortly before the applicant ’s disciplinary sanction , another employee had been dismissed for using the internet , the telephone and the photocopier for personal purposes , and that the employees had been warned that their activities were being monitored ( see notice no . CARDINAL of DATE , which the applicant had signed [ after ] acquainting himself with it – see copy on sheet CARDINAL ) , the employer can not be accused of showing a lack of transparency and of failing to give its employees a clear warning that it was monitoring their computer use .

Internet access in the workplace is above all a tool made available to employees by the employer for professional use , and the employer indisputably has the power , by virtue of its right to supervise its employees’ activities , to monitor personal internet use .

Such checks by the employer are made necessary by , for example , the risk that through their internet use , employees might damage the company ’s IT systems , carry out illegal activities in cyberspace for which the company could incur liability , or disclose the company ’s trade secrets .

The court considers that the acts committed by the applicant constitute a disciplinary offence within the meaning of LAW since they amount to a culpable breach of the provisions of LAW internal regulations ... , which prohibit the use of computers for personal purposes .

The aforementioned acts are deemed by the internal regulations to constitute serious misconduct , the penalty for which , in accordance with LAW , [ is ] termination of the contract of employment on disciplinary grounds .

Having regard to the factual and legal arguments set out above , the court considers that the decision complained of is well - founded and lawful , and dismisses the application as unfounded . ”

The applicant appealed to ORG ( “ the Court of Appeal ” ) . He repeated the arguments he had submitted before the first - instance court and contended in addition that that court had not struck a fair balance between the interests at stake , unjustly prioritising the employer ’s interest in enjoying discretion to control its employees’ time and resources . He further argued that neither the internal regulations nor the information notice had contained any indication that the employer could monitor employees’ communications .

ORG dismissed the applicant ’s appeal in a judgment of DATE , the relevant parts of which read :

“ The first - instance court has rightly concluded that the internet is a tool made available to employees by the employer for professional use , and that the employer is entitled to set rules for the use of this tool , by laying down prohibitions and provisions which employees must observe when using the internet in the workplace ; it is clear that personal use may be refused , and the employees in the present case were duly informed of this in a notice issued on DATE in accordance with the provisions of the internal regulations , in which they were instructed to observe TIME , to be present at the workplace [ during TIME and ] to make effective use of working time .

In conclusion , an employer who has made an investment is entitled , in exercising the rights enshrined in LAW , to monitor internet use in the workplace , and an employee who breaches the employer ’s rules on personal internet use is committing a disciplinary offence that may give rise to a sanction , including the most serious one .

There is undoubtedly a conflict between the employer ’s right to engage in monitoring and the employees’ right to protection of their privacy . This conflict has been settled at ORG level through the adoption of Directive no . CARDINAL , which has laid down a number of principles governing the monitoring of internet and email use in the workplace , including the following in particular .

- Principle of necessity : monitoring must be necessary to achieve a certain aim .

- Principle of purpose specification : data must be collected for specified , explicit and legitimate purposes .

- Principle of transparency : the employer must provide employees with full information about monitoring operations .

- Principle of legitimacy : data - processing operations may only take place for a legitimate purpose .

- Principle of proportionality : personal data being monitored must be relevant and adequate in relation to the specified purpose .

- Principle of security : the employer is required to take all possible security measures to ensure that the data collected are not accessible to third parties .

In view of the fact that the employer has the right and the duty to ensure the smooth running of the company and , to that end , [ is entitled ] to supervise how its employees perform their professional tasks , and the fact [ that it ] enjoys disciplinary powers which it may legitimately use and which [ authorised it in the present case ] to monitor and transcribe the communications on PERSON which the employee denied having exchanged for personal purposes , after he and his colleagues had been warned that company resources should not be used for such purposes , it can not be maintained that this legitimate aim could have been achieved by any other means than by breaching the secrecy of his correspondence , or that a fair balance was not struck between the need to protect [ the employee ’s ] privacy and the employer ’s right to supervise the operation of its business .

Accordingly , having regard to the considerations set out above , the court finds that the decision of the first - instance court is lawful and well - founded and that the appeal is unfounded ; it must therefore be dismissed , in accordance with the provisions of LAW Civ[il ] Pr[ocedure ] . ”

In the meantime , on DATE the applicant had lodged a criminal complaint against the statutory representatives of S. , alleging a breach of the secrecy of correspondence . On CARDINAL DATE the Directorate for Investigating Organised Crime and Terrorism ( ORG ) of the prosecutor ’s office attached to ORG and ORG ruled that there was no case to answer , on the grounds that the company was the owner of the computer system and the internet connection and could therefore monitor its employees’ internet activity and use the information stored on the server , and in view of the prohibition on personal use of the IT systems , as a result of which the monitoring had been foreseeable . The applicant did not avail himself of the opportunity provided for by the applicable procedural rules to challenge the prosecuting authorities’ decision in the domestic courts .


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

The background facts relating to the planning , conduct and dispersal of the public event at FAC are set out in more detail in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) , and GPE v. GPE ( nos . CARDINAL and QUANTITY , DATE ) . The parties’ submissions on the circumstances directly relevant to the present case are set out below .

On DATE a public demonstration entitled the “ DATE of CARDINAL ” was held in central GPE to protest against allegedly rigged presidential elections . The event had been approved by the city authorities in the form of a march followed by a meeting at FAC , which was supposed to end at TIME The march was peaceful and held without any disruptions , but when the marchers arrived at FAC it turned out that barriers installed by the police had narrowed the entrance to the meeting venue , allegedly restricting the space allocated for the meeting . To control the crowd the police cordon forced the protestors to remain within the barriers . There were numerous clashes between the police and protesters . At TIME the police ordered that the meeting finish early and began to disperse the participants . It took them TIME to clear the protestors from the square .

On DATE the GPE city department of ORG opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) . On CARDINAL DATE the file was transferred to the headquarters of ORG for further investigation . On DATE an investigation was also launched into the criminal offence of organising acts of mass disorder ( LAW ) . The CARDINAL criminal cases were joined on DATE .

The applicant took part in the demonstration of CARDINAL DATE at FAC . He was arrested on the date indicated below and charged with participation in mass disorder . The applicant was detained and tried on those charges but subsequently exempted from liability under LAW .

The applicant is a political activist and a member of an opposition movement called ORG . On DATE he arrived at FAC to participate in the demonstration and , according to him , did not take part in any disorder or clashes with the police . After the events in question the applicant continued to live at his usual address and pursue his customary activities , including taking part in authorised public events .

On DATE the applicant was detained on suspicion of participation in acts of mass disorder and committing violent acts against the police on DATE . On DATE ORG of Moscow held a hearing on the investigating authorities’ request to detain the applicant pending the completion of the criminal investigation . In view of the need to provide additional evidence in support of the request , the court adjourned the hearing and authorised the applicant ’s detention for TIME .

On DATE ORG ordered the applicant ’s pre - trial detention until DATE . It referred to the gravity of the charges and stated that the applicant ’s state of health did not preclude his being detained . ORG concluded that the applicant , faced with the risk of a prison term , might obstruct the proper administration of justice or abscond .

On DATE charges were brought against the applicant under LAW ( participation in mass disorder accompanied by violence ) of LAW . He was accused , in particular , of having thrown an unidentified solid object towards the police .

On DATE ORG upheld the detention order of DATE .

On DATE ORG examined a request for an extension of the applicant ’s pre - trial detention . The applicant requested to be released , arguing that all the necessary investigative acts had already been carried out . He presented personal guarantees from CARDINAL ORG deputies in support of an undertaking by him to appear before the investigating authorities and the courts for examination of his case . The applicant also requested his release on health grounds and submitted a medical document from DATE which showed that he had a number of eye conditions .

On DATE ORG granted an extension of the applicant ’s pre - trial detention until DATE . It relied on the reasons for and the nature of the crime which had been committed , which gave sufficient grounds to presume that the applicant might reoffend , influence and threaten witnesses and other participants of the criminal proceedings , destroy evidence or otherwise obstruct the proper administration of justice . In addition , the applicant had negative reports related to his place of residence . In particular , he had no permanent employment or family and had been repeatedly brought to administrative responsibility . His state of health was satisfactory and did not warrant his release . Lastly , the court held that in view of the above circumstances the custodial measure could not be replaced by a more lenient preventive measure .

On DATE ORG upheld the extension order of CARDINAL DATE .

On DATE ORG examined a new request for an extension of the applicant ’s pre - trial detention . The applicant argued that his detention was detrimental to his health , in particular his eyesight . He referred again to the personal guarantees of CARDINAL ORG deputies in support of his request for a milder preventive measure . On DATE the court extended the applicant ’s detention until DATE . The court referred to the gravity of the charges and the nature of the offence imputed to the applicant , along with information about his personality , namely that he had no permanent employment or regular source of income and had negative reports from his place of residence .

On DATE the charges against the applicant were updated . The classification of the offence remained unchanged . According to the new indictment , TIME on DATE at FAC unidentified persons had called those present to move outside the agreed meeting area and to disobey lawful police orders , leading to mass disorder accompanied by violence against public officials . TIME and TIME that day the applicant had taken part in acts of mass disorder , in particular , he had repeatedly shouted anti - government slogans . During that period of time the participants of the mass disorder threw pieces of tarmac , stones , sticks and other objects at the police , which hit them on various parts of their body . The applicant , no later than at TIME , found a flagpole and threw it at an unidentified police officer , hitting him in the chest .

On DATE ORG granted a new extension of the applicant ’s detention , until DATE . It stressed the complexity of the case , reiterated the grounds given in the previous orders and noted that the circumstances that had justified the detention order had not changed . The applicant asked to be released on bail and presented personal guarantees from a wellknown writer and CARDINAL directors of prominent NGOs , but the court considered that a milder preventive measure could not be applied . ORG upheld the extension order on DATE .

On DATE ORG examined a fresh request to extend the applicant ’s detention and set a new term of DATE on the same grounds as previously .

On DATE ORG examined an appeal by the applicant against its decision of DATE and reversed it on the grounds that the prosecutor ’s office would have enough time to bring an indictment by DATE , adding that after that date the trial court could consider a new extension of the applicant ’s pre - trial detention .

On DATE the applicant ’s criminal case was transferred to the ORG of GPE for the determination of criminal charges .

On DATE that court granted another extension of the applicant ’s detention , until DATE . The decision concerned CARDINAL defendants . Along with the gravity of the charges , the court based its decision on the findings that “ the reasons which had initially warranted the detention have not changed ” and that “ no other measures of restraint would secure the aims and goals of the judicial proceedings ” . The court also pointed out that the applicant ’s state of health was not incompatible with his being kept in custody . ORG upheld the extension order on DATE .

On DATE ORG began the trial in a criminal case against CARDINAL participants in the demonstration at FAC , who were charged with participation in acts of mass disorder and committing acts of violence against police officers .

The applicant made an application for release during a court hearing on DATE but it was dismissed by ORG on DATE .

On DATE the Ombudsman of GPE submitted a complaint to the ORG of ORG about the extension of the applicant ’s pre - trial detention and requested an alternative preventive measure for him .

On DATE ORG refused the ORG ’s request .

On DATE the ORG granted another extension of detention in respect of CARDINAL defendants , including the applicant . It ordered their detention until DATE on the grounds of the gravity of the charges and the nature of the offences imputable to them . On DATE ORG upheld that extension order .

On DATE ORG passed LAW which applied , inter alia , to pending criminal proceedings against people suspected and accused of criminal offences under LAW and CARDINAL of LAW .

On DATE the applicant requested the termination of the criminal proceedings against him by operation of LAW . On DATE the ORG granted the request and released him from detention .

The applicant has moderate myopia , complex myopic astigmatism and a congenital coloboma of the choroid .

From DATE to CARDINAL DATE and from DATE to CARDINAL DATE the applicant was held in remand prison GPE in GPE . Upon his arrival there he was given a medical check which did not reveal any health issues .

In GPE the applicant was detained in cells CARDINAL ( until DATE ) , CARDINAL ( until DATE , then from CARDINAL to CARDINAL DATE ) , CARDINAL ( until DATE ) , CARDINAL ( until DATE ) , and CARDINAL ( until DATE ) .

The cells had the following characteristics :

cell CARDINAL : QUANTITY and CARDINAL sleeping places ;

cell CARDINAL : CARDINAL sq . m and CARDINAL sleeping places ;

cell CARDINAL : QUANTITY . m and CARDINAL sleeping places .

The parties agreed that on DATE the number of inmates in the cell did not exceeded the design capacity . They also agreed that the size of the cells and the number of detainees had allowed the applicant QUANTITY of personal space and that the applicant had had an individual sleeping place in every cell .

The parties provided the following accounts of the conditions in the cells . According to the applicant , the cells were inadequately lit and ventilated , were excessively hot in DATE and cold in DATE , they all had a lavatory pan which was separated from the living space by a plastic partition to chin level , which did not provide enough privacy . The applicant alleged that he had been constantly exposed to cigarette smoke and that although the window in the cell could be opened , it overlooked a courtyard used for incinerating rubbish and had let in fumes . There was therefore a constant lack of fresh air in the cell , which the ventilation system could not compensate for . Outdoor exercise was limited to TIME per day . The applicant also stated that the window was too high to give sufficient light for reading or working on documents . Finally , he alleged that the purchase of an electric kettle was a condition for access to drinking water .

According to the Government , the cells were equipped with ventilation ; the state of the sanitary facilities had been satisfactory ; the cells had been cleaned and bedding changed once DATE ; the applicant had been entitled to TIME of outdoor exercise per day ; and the cells had been disinfected and subjected to pest control DATE . They provided measurement tables for the remand prison , which had been created in DATE . They showed that the level of light in the cells in which the applicant had been detained had ranged CARDINAL and QUANTITY lux , the standard being CARDINAL lux . The temperature in the cells had measured CARDINAL and CARDINAL and humidity PERCENT , while the permissible level was up to CARDINAL and PERCENT respectively . The ORG also noted that detainees had access to a gym upon a written request .

On DATE the applicant ’s lawyer requested that the head of the remand prison order a medical examination for the applicant . He alleged that there had been a rapid deterioration of his eyesight .

On DATE the public commission for the monitoring of detention facilities visited GPE , and the applicant complained to them about excessive heat in his cell and a deterioration of his eyesight .

On DATE the applicant requested that the head of the remand prison organise a medical examination owing to his worsening eyesight .

On DATE the applicant was taken for an outpatient consultation with an ophthalmologist . He was diagnosed with severe myopia , amblyopia , esotropia , and a congenital coloboma of the iris . The doctor noted that the applicant had last been examined in DATE and recommended that he have a special examination to determine his disability status ( медико-социальная экспертиза ) .

On DATE the chief of ORG requested another ophthalmologic consultation , repeating the applicant ’s complaints about the deterioration of his eyesight .

On DATE the applicant was taken for another outpatient consultation with an ophthalmologist , who concluded that there were no negative developments in his state of health . The doctor also recommended that he have eye tests once a year .

On DATE the applicant underwent the special examination for recognition of the status of being disabled , which he was refused .

On DATE and DATE the public commission for the monitoring of detention facilities visited GPE , and the applicant complained to them about the poor quality of his mattress and the deterioration of his eyesight .

On DATE the applicant was transferred to remand prison IZ-CARDINAL/CARDINAL in GPE ( GPE тишина ) , which had a medical wing . The applicant remained there until DATE and underwent a series of medical examinations , including blood tests , an echography , a chest photofluorography and an electrocardiogram .

According to the applicant , the prison cell measured QUANTITY and housed CARDINAL inmates , including himself . The window measured CARDINAL by QUANTITY and was too high to give sufficient light for reading or working on documents . The artificial light was dim and flickering and was turned on even at TIME . There was no mechanical ventilation and the cell was damp , with broken window panes letting in the cold . A shower was allowed once DATE and the toilet was only separated from the rest of the cell by a low wall . Outdoor exercise was limited to TIME per day and the purchase of an electric kettle was a condition for getting access to drinking water .

According to the certificate issued by the prison governor on CARDINAL DATE , the applicant was held in cell CARDINAL in IZ-CARDINAL/CARDINAL . That cell had measured QUANTITY and had housed CARDINAL inmates , including the applicant . The cell had CARDINAL window measuring CARDINAL by QUANTITY and the state of the glazing was inspected DATE and fixed whenever necessary . The temperature in the cell had been maintained at QUANTITY was provided by a fluorescent lamp with CARDINAL CARDINAL-watt tubes from TIME to TIME and by a NORP lamp during TIME , in line with requirements . The windows had no shutters , only a metal grill with CARDINAL metal bars ; the size of the mesh was CARDINAL by CARDINAL mm . Inmates had to clean the cell DATE with chlorine bleach and detergent provided by the facility . The applicant had been able to shower once DATE for TIME . The cell had been disinfected and subjected to pest control measures regularly .

On DATE the applicant was examined by a commission of CARDINAL doctors , including an ophthalmologist . They issued a report which , in so far as relevant , read as follows :

“ ... According to the [ the applicant ’s ] medical documents , dated from DATE to CARDINAL , [ he had been diagnosed with ] medium myopia , complex myopic astigmatism , a congenital coloboma of the choroid , and a vascular congenital coloboma of the iris . Partial optic atrophy .

According to the results of the medical examination in [ IZ-CARDINAL/CARDINAL ] carried out on DATE [ he has ] high myopia of the right eye . High - degree amblyopia of the left eye , esotropia . A congenital coloboma of the iris [ and ] of the choroid .

There have been no negative developments compared with the previous evaluation reports ( medical examinations ) . ”

On DATE the public commission for the monitoring of detention facilities visited IZ-CARDINAL/CARDINAL to check the conditions of the applicant ’s detention . Its report read as follows :

“ [ The applicant ] is being held in a cell in the remand prison ’s medical wing . There are CARDINAL other detainees in the cell . The cell is CARDINAL of the worst in the medical wing of [ IZ-CARDINAL/CARDINAL ] . It is cold , the radiator is lukewarm and the glass in the hinged window is broken . The cell has not been renovated for a long time . Dirty , scuffed walls . There is no refrigerator or television , the radio socket is broken . [ The applicant ] complains that he has not received any treatment in the hospital for DATE . The medical wing of the remand prison has no ophthalmologist and he was taken for a consultation to the [ city hospital ] ... According to the chief physician of the medical wing ... [ the applicant ] had PERCENT sight in CARDINAL eye and PERCENT sight in the other . But the prison doctors could not recommend his release ... because only totally blind detainees are eligible .

... [ The applicant ’s ] detention is detrimental to his health , his eyesight is deteriorating as DATE goes by : the light is always on in the cell , day and night . The light is dim ; that is bad for his eyesight .

The members of the [ commission ] consider that [ the applicant ’s ] detention ... is a way to pressure him into giving the evidence the investigation wants . [ He ] risks losing his remaining eyesight . It is evident that he has been placed in the worst cell , cold and damp , instead of being treated in the hospital . He has been deprived of the possibility to receive visits from his family and has found himself in an information vacuum , without any television , radio or press . No adequate treatment or medical care . ”

On DATE the applicant was taken for an outpatient consultation with an ophthalmologist , who confirmed the previous diagnoses and identified no change in the applicant ’s condition .

The discharge summary ( выписной эпикриз ) issued on DATE contained the results of the applicant ’s medical examinations carried out in IZ-CARDINAL/CARDINAL . The head of the prison ’s medical wing concluded that they did not reveal the presence of any of the serious conditions which were listed as being incompatible with custody and there were thus no obstacles to the applicant ’s detention .

On DATE the applicant was placed in remand prison GPE in GPE ( GPE тюрьма ) where he was held until his release on DATE .

In GPE the applicant was detained in cells CARDINAL ( until DATE ) , CARDINAL-a ( until DATE ) , CARDINAL ( until DATE ) , CARDINAL ( until DATE ) , and CARDINAL ( apparently until his release ) .

The cells had the following characteristics :

cell CARDINAL-a : QUANTITY m and CARDINAL sleeping places ;

cell CARDINAL : CARDINAL sq . m and CARDINAL sleeping places .

According to the applicant , the conditions in GPE were poor , especially because of a lack of regular outdoor exercise and inadequate sanitary arrangements . In particular , the lavatory pan was only separated from the living space by a chest - high partition which did not provide sufficient privacy . In addition , the applicant did not take a shower after his transfer to GPE until DATE , as he indicated in his letter .

According to the Government , the conditions in the cells at ORG were as follows : the toilet was separated by a solid partition from the rest of the cell , which provided the necessary privacy ; the state of the sanitary facilities was satisfactory ; the cells were disinfected and subjected to a pest control procedure once every three months or whenever necessary ; the applicant had been entitled to TIME of outdoor exercise DATE ; the cell had been cleaned and the bedding changed DATE ; the cells were equipped with forced ventilation and could be aired through a hinged window . Artificial light was provided from a CARDINAL bulb by day and a QUANTITY bulb by TIME . The glazing of the windows let in sufficient daylight .

On DATE the applicant was placed in the medical wing of IZCARDINAL/CARDINAL for an additional examination and adjustment of his treatment . He had been discharged on DATE after refusing further treatment .

According to a statement of DATE issued by ORG , the applicant ’s state of health had been satisfactory and doctors had recommended that he have regular consultations with an ophthalmologist .

The applicant ’s description of the conditions of detention during his transfer from the remand prison to court and back was identical to that in the case of GPE ( cited above , § § CARDINAL ) .

On DATE court proceedings began in hearing room no . CARDINAL and in DATE moved to hearing room no . CARDINAL at ORG . The defendants , including the applicant , were held in glass cabins in both hearing rooms . From DATE to DATE the hearings continued at ORG of GPE in hearing room no . CARDINAL , which was equipped with metal cages .

For a detailed description of the conditions in those hearing rooms see GPE ( ibid . , § § CARDINAL ) .


Remainder inadmissible (Article 35-3-a - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

The applicant was born in DATE and lives in PERSON .

On DATE the applicant lodged a criminal complaint against PERSON for breach of duty and extortion concerning acts he had allegedly committed as mayor of GPE . The applicant gave a statement under oath on DATE , repeating the allegations in his criminal complaint . He made a further statement under oath related to his criminal complaint on DATE .

At the time the complaint was lodged PERSON was a member of ORG . In accordance with LAW , the public prosecutor asked ORG to lift PERSON ’s immunity from prosecution for breach of duty , extortion and bribery . That request was rejected on DATE .

On DATE the applicant , relying on the ORG ’s judgments in GPE v. GPE ( no . CARDINAL ) ( no . CARDINAL , ORG CARDINALI ) and GPE v. GPE ( no . CARDINAL ) ( no . CARDINAL , ORG CARDINALI ( extracts ) ) resubmitted his criminal complaint , arguing that ORG ’s rejection of the request to lift PERSON ’s immunity had violated his right to a fair trial under LAW . On DATE the criminal complaint was submitted to ORG . On DATE the President of ORG rejected the request to lift PERSON ’s immunity , relying on LAW of ORG , according to which a request to lift a member ’s immunity for a criminal complaint based on the same facts as a previous request was inadmissible .

On DATE the applicant lodged an application with ORG , complaining under LAW that ORG ’s refusal to lift PERSON ’s immunity had violated his right of access to a court . On DATE the ORG delivered a judgment concluding that the refusal by the President of ORG to lift PERSON ’s immunity for acts that had allegedly been committed prior to his election had violated the applicant ’s right of access to a court under LAW ( Tsalkitzis v. GPE , no . CARDINAL , DATE ) . To date , ORG has not yet concluded the supervision of the execution of the judgment under LAW .

In the meantime , on DATE the applicant appeared on a television show on the nationwide ALTER ORG and reiterated the allegations made in his criminal complaint .

On DATE PERSON lodged a criminal complaint against the applicant for false accusation , perjury and slander . Following a preliminary examination , criminal proceedings were initiated against the applicant . On DATE the applicant was convicted in absentia by a threemember panel of ORG . He was sentenced to CARDINAL months’ imprisonment and deprivation of his political rights ( decision no . CARDINAL/CARDINAL ) . PERSON joined the proceedings as a civil party . The applicant lodged an appeal against the decision .

NORP Before the CARDINAL - member panel of ORG ( “ the Court of Appeal ” ) , the applicant submitted that his trial for slander should have been suspended pursuant to LAW or , in any event , that it should have been adjourned in respect of all the charges , pursuant to LAW . At a hearing on DATE ORG dismissed the applicant ’s application to suspend or adjourn the trial and proceeded to examine PERSON ’s criminal complaint . In particular , it held the following :

“ ... Following this , the party who had filed the criminal complaint , PERSON , lodged application no . CARDINAL/CARDINAL with ORG in GPE , complaining that GPE had not lifted PERSON ’s parliamentary immunity and that criminal proceedings had not been initiated against him . That Court ... held that the refusal of the President of ORG had violated LAW Therefore , the following issues have been identified concerning : a ) the relation of international conventions to current constitutional provisions ; b ) the act in question of the President of ORG and whether it breaches constitutional provisions and the above - mentioned international convention ; and c ) the question of whether or not it is possible to suspend the current criminal case being tried following the criminal complaint dated DATE by the defendant PERSON against ... C.T ... The matter of the supremacy of the LAW does not appear to be contradicted by the above - mentioned ORG judgment , which identifies the issue as the act of the President of ORG of not putting the request to the Plenary of ORG , which resulted , according to the judgment , in impeding the applicant ’s and the case ’s access to the competent criminal court ... It is noted that the President of ORG ’s act was based on Article CARDINAL of ORG ’s Regulations ...

According to the foregoing , it is clear that ORG has irrevocably dismissed the request of the public prosecutor of ORG , thus refusing to lift the immunity of the member of ORG against whom the criminal complaint was lodged ... on the basis of a legitimate procedure foreseen by the above - mentioned constitutional provisions . Therefore , according to the legislation , there is absolutely no possibility of reconsidering the issue and , eventually , of instituting a criminal prosecution . During the ... Plenary meetings of ORG , the issue of the well - foundedness of the accusation was examined as a whole , as were all aspects of the case , securing the work of the deputy and at the same time protecting him from malicious acts . In addition , and this is important , the whole case file which had been created following the preliminary examination was taken into account , as was the opinion of the competent public prosecutor who , following a review of the case , considered that there was no reason to initiate criminal proceedings against PERSON for the offences of which he had been accused ... ”

Subsequently , ORG proceeded to examine witnesses . The trial record shows that the applicant left the building following a short break after the examination of the first CARDINAL witnesses for the prosecution . His lawyer then contacted him to find out his whereabouts and informed the court that he was not feeling well and had thus left the building . The hearing continued in the presence of his lawyer . In total , CARDINAL prosecution witnesses were heard , including PERSON , who joined the proceedings as a civil party , and CARDINAL defence witness . It does not transpire from the information provided that the applicant or his representative requested the examination of any other defence witness and that such a request was refused . In view of the applicant ’s absence , ORG asked his representative to express the applicant ’s views on the accusations . The applicant ’s representative stated that his client denied all the charges and insisted on the truthfulness of his allegations against PERSON

ORG upheld the first - instance verdict , including the sentence of CARDINAL months’ imprisonment and the deprivation of political rights ( decision no . DATE ) .

On DATE the applicant appealed on points of law . He stated , inter alia , that the proceedings should have been suspended or adjourned pursuant to LAW and LAW § CARDINAL of the Code of Criminal Procedure . On DATE ORG dismissed the appeal on points of law ( decision no . CARDINAL/CARDINAL ) . In particular , it held the following :

“ ... It is clear from this new provision ( LAW ) ... that in order to adjourn a trial owing to an interlocutory criminal issue ( ποινικό προδικαστικό ζήτημα ) concerning Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL of LAW , a criminal prosecution must have been instituted for an act attested to on oath or for which a legal complaint has been submitted or one which a defendant has alleged or disseminated information about . As regards LAW of LAW ... the suspension of criminal proceedings is obligatory , but also requires a prior criminal prosecution for the act that a defendant has alleged or disseminated information about ... In the present case ... the court dismissed the above requests , providing full and correct reasoning , in particular because the immunity of the person against whom the criminal complaint had been lodged , who is now a civil party and member of ORG , had not been lifted . Hence , a criminal prosecution had not been instituted , which is a prerequisite for the suspension and adjournment of criminal proceedings against a defendant who requests them . It can be concluded from the above - mentioned considerations that the court correctly interpreted and implemented the above - mentioned provisions , and did not violate them , when it proceeded to examine the allegations of false accusation , perjury and slander against the defendant - appellant on points of law and dismissed the defendant ’s request on the grounds that a criminal prosecution had not been instituted against the current civil party , former mayor and now member of ORG , without suspending and adjourning the proceedings until DATE previously instituted proceedings against him ... ”

NORP The decision was finalised on DATE ( καθαρογραφή ) and the applicant was able to receive a copy on DATE . The applicant was imprisoned from CARDINAL DATE to CARDINAL DATE as he was not able to pay the fine to which his sentence had been commuted . On DATE his sentence was commuted to community service and he was released . Finally , on CARDINAL DATE the applicant paid MONEY in lieu of serving his sentence .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Legal assistance of own choosing);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

The applicant was born in DATE and lives in GPE . At the material time she was deputy chairperson of CARDINAL of the main opposition parties in the country , ORG of GPE .

On DATE and CARDINAL DATE the applicant participated in demonstrations organised by the opposition in GPE .

On DATE , the organisers had given the relevant authority , ORG ( “ the ORG ” ) , notice of the demonstration of DATE . It appears that no prior notice was given to the ORG by the organisers of the demonstration of DATE . Information about that assembly was disseminated through ORG or the press .

The ORG refused to authorise the demonstration of DATE at the place indicated by the organisers and proposed a different location on the outskirts of GPE – the yard of a driving school situated in the CARDINALth residential area of LOC . The ORG noted that the place proposed by the organisers was in an area with heavy traffic .

Nevertheless , the organisers decided to hold the demonstrations in the centre of GPE .

According to the applicant , the demonstrations were intended to be peaceful and were conducted in a peaceful manner . The participants of the demonstration of CARDINAL DATE were demanding free and fair elections and democratic reforms in the country , and protesting about impediments to freedom of assembly . The participants of the demonstration of CARDINAL DATE were condemning the use of force by the police against participants of previous demonstrations .

The applicant attended both demonstrations , but shortly after they had begun the police started to disperse them . In both cases the applicant was arrested during the dispersal operation and taken to a police station .

According to the applicant , during her arrest in the first case several police officers twisted her arms behind her back , held her head down and forced her to move in that position for QUANTITY in the direction of a police car . As a result , the muscles in her neck , arms , back and other parts of her body hurt . At the police station she was kept handcuffed .

In a photograph , submitted to the ORG by the applicant and allegedly taken at the time of her arrest , the applicant is shown with both arms twisted behind her back by CARDINAL police officers and with her body bent as a result of that restraint .

NORP In both cases on DATE of the applicant ’s arrest , an “ administrative offence report ” ( inzibati xəta haqqında protokol ) was issued in respect of her . In the first case the report stated that by deliberately failing to comply with a lawful order from the police , the applicant had committed an administrative offence under LAW ( “ the CAO ” ) . In the second case the applicant was charged with an administrative offence under LAW ( breach of the rules on the organisation and holding of assemblies , by an assembly organiser ) .

According to the applicant , she was never served with copies of the administrative offence reports or with other documents from her case files . In neither case was she given access to a lawyer after the arrest or while in police custody .

In the first case the applicant was brought before ORG on DATE , DATE following her arrest . In the second case she was brought before FAC on DATE , DATE of her arrest .

According to the applicant , the hearing before the court in both cases was very brief . In the second case members of the public were not allowed inside the courtroom , even though the court had not taken a formal decision to close the hearing to the public .

According to the applicant , in neither case was she given an opportunity to hire a lawyer of her own choice .

State - funded lawyers were appointed to assist the applicant . The records of the court hearings in both cases show that in their oral submissions the ORG - funded lawyers briefly stated that the applicant was not guilty and/or asked the respective court to discontinue the case .

NORP In both cases the courts questioned only the police officers who , according to the official records , had arrested the applicant or issued an administrative offence report in respect of her . The police officers testified that the applicant had attempted to stage an unauthorised demonstration , and , in the second case , had also incited others to participate in such an assembly .

In the first case the first - instance court found that the applicant had participated or attempted to participate in an unauthorised demonstration . In the second case the court found that the applicant had incited people to participate in an unlawful assembly and , by doing so , had violated the rules on organising and holding assemblies .

By a decision of DATE the first - instance court in the first case convicted the applicant under Article CARDINAL of the ORG and sentenced her to CARDINAL days’ “ administrative ” detention . By a decision of CARDINAL DATE the court in the second case convicted the applicant under Article CARDINAL of the ORG and sentenced her to a fine of CARDINAL manats ( AZN ) .

On unspecified dates the applicant lodged appeals before ORG , arguing that her convictions were in violation of her rights because the demonstrations in which she had participated had been peaceful . She also complained that her arrests had been unlawful and that the hearings before the respective first - instance courts had not been fair .

In the first case the applicant also requested ORG to order a forensic examination of the injuries she had allegedly sustained during her arrest . The court disregarded that request . The court also disregarded the applicant ’s requests to examine video recordings of the arrest made by some journalists ; to question the police officers appearing in those video recordings ; and to demand the medical record issued in respect of the applicant in the detention facility where she had served her administrative detention .

In the first case the applicant was assisted before ORG by a lawyer of her own choice . In the second case she was not represented by a lawyer .

NORP In both cases , on DATE and DATE respectively , ORG dismissed the applicant ’s appeal and upheld the decision of the first - instance court .

On an unspecified date the applicant lodged a complaint before ORG asking it to conduct an investigation into illtreatment allegedly committed by the police during her arrest .

By a letter of CARDINAL DATE ORG informed the applicant ’s lawyer that the complaint had been forwarded to the GPE prosecutor ’s office for examination . The letter also instructed the GPE prosecutor ’s office to inform the lawyer about the results of the examination .

On an unspecified date , the applicant was summoned to the LOC prosecutor ’s office and questioned in connection with her complaint of ill - treatment .

According to the applicant , neither she nor her lawyer was informed about any actions taken by the authorities to investigate her complaint . It was only after making enquiries about the outcome of the investigation , in DATE , that the applicant managed to obtain a copy of an investigator ’s decision of DATE refusing to open a criminal case .

The applicant did not lodge a complaint with a court against the decision of DATE .


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

The applicant was born in DATE and is detained in LOC .

The facts of the case may be summarised as follows .

The applicant was detained in FAC from DATE to CARDINAL DATE and in FAC from CARDINAL DATE to CARDINAL DATE ( DATE , DATE ) .

NORP The parties’ statements relating to the conditions of the applicant ’s detention from DATE to CARDINAL DATE are to a large extent contradictory .

The applicant submitted that throughout his detention in ORG and FAC , he had been held in overcrowded cells in which the space per person had been below the NORP statutory minimum standard of CARDINAL m² .

In their observations , the ORG submitted that the applicant had been detained in overcrowded cells only on DATE , DATE and DATE .

In the course of civil proceedings instituted by the applicant ( see paragraphs QUANTITY below ) , the domestic courts established , without giving any further details , that the applicant had been detained in overcrowded cells from DATE to CARDINAL DATE ( DATE , DATE ) .

Regarding the conditions of detention in FAC , the domestic court established that the overall conditions in cells were adequate . The applicant had CARDINAL hot shower per week and TIME of outdoor exercise per day .

Regarding the conditions of detention in FAC , as established by the domestic courts , the toilets were separated from the cell ’s living area , every prisoner had his own bed , a stool and access to cold running water . The prisoners had basic hygiene products at their disposal . The ceiling was infested with humidity . The applicant had CARDINAL hot shower per week and TIME of outdoor exercise per day .

On DATE the applicant brought a civil action for the infringement of his personal rights on account of inadequate living conditions in FAC from DATE and from DATE , in FAC from DATE to CARDINAL DATE and , subsequently , again in FAC from CARDINAL DATE to DATE . The applicant argued that he had been detained in overcrowded cells , where the space per person had been below the statutory minimum of CARDINAL m² . He claimed MONEY ( PLN ) ( MONEY ( ORG ) ) in compensation .

On DATE ORG dismissed the applicant ’s action , finding that from DATE to CARDINAL DATE the applicant had been detained in cells above the minimum statutory standard . As regards the remainder of the period , the claim was time - barred as lodged outside the DATE period of statutory limitation .

On DATE ORG overruled the lower court ’s judgment and allowed the applicant ’s action , finding that from DATE to CARDINAL DATE he had been detained in overcrowded cells . The court relied in this respect on the applicant ’s submissions , holding that ORG had in fact acknowledged these by its multiple refusals to provide the first and the second instance courts with an official register of cells in which the applicant had been detained . It also granted the applicant ORG CARDINAL,CARDINAL ( EUR CARDINAL ) in compensation , holding that the breach of the statutory minimum standard had not been significant .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

She is a civil servant working for ORG ( hereinafter “ the Ministry ” ) as a ORG inspector . She suffers from cardiac problems , including a heart rhythm disorder .

According to the applicant , on DATE , her head of division , and PERSON , his deputy , used violence against her in GPE ’s office . In particular , they assaulted her , grabbed her hands , insulted her and forcibly took a document concerning her which she had taken in to them in order to write down her objections . As a result of the violence she fainted , sustained bodily injuries , received numerous bruises on her hands and was seriously humiliated .

On DATE the applicant filed a written report with the head of staff of ORG , giving a detailed account of what had happened . She stated , inter alia , that she had returned her appraisal report for DATE H.A. since she had disagreed with the assessment received . On DATE she had been informed by CARDINAL of her colleagues that PERSON wanted to see her in his office . During their meeting , PERSON had given her the appraisal report and asked her why she had not signed it . She had responded that she wanted to discuss it . H.A. had refused to provide any clarifications , stating that he was the one to make decisions and would submit the report to the relevant division without her signature . H.A. had then ordered her to return the appraisal report , which she had refused to do , stating that she would write down her objections , sign the document and then return it to him . When she had been about to leave , PERSON had immediately closed and locked the door to his office and had started to approach her , shouting that she was a thief and had stolen a document from his office . Using physical violence and personal insults , he had tried to take the papers from her . After she had called for help , PERSON had entered the office and instead of diffusing the situation had also insulted her and ordered her to hand him the documents . The CARDINAL of them had grabbed her hands , causing her serious pain , and forcibly taken away the papers . As a result of the stress and pain she had fainted for a short period of time , after which she had been told that she could leave as there was nothing else to discuss . She concluded by stating that as a result of the violent behaviour of GPE and PERSON she had suffered injuries , health problems and serious distress . She requested that the relevant measures be taken in accordance with the law .

After the incident , the applicant felt unwell and underwent a medical examination . She was diagnosed with acute bronchitis and ORG syndrome ( a heart rhythm disorder ) and was put on sick leave from CARDINAL to DATE .

On DATE the applicant reported the incident to the police , stating that on DATE she and PERSON , her head of division , had had an argument during which he had been violent and caused her bodily harm . She made a statement giving an account of events similar to that in her report to the head of staff of ORG .

The investigator ordered a forensic medical examination DATE to determine whether the applicant had any bodily injuries and , if so , their nature , origin , seriousness and the time and manner of their infliction .

On DATE PERSON gave a statement to the police . In particular , he stated that the applicant had refused to return her appraisal report to him , after which he had left his office , closed the door and called PERSON , asking him to come to see him with the other employees . During that time the applicant had kept shouting and swearing . She had called their superior to say that he had locked her in . He denied harassing the applicant either physically or verbally and said that she had used foul language .

On DATE PERSON made a statement and similarly denied using violence against the applicant . DATE a number of the applicant ’s colleagues who were at work on DATE of the incident were questioned and denied that PERSON and PERSON had been violent towards the applicant .

On DATE the forensic medical examination was completed . The relevant parts of the expert ’s opinion read as follows :

“ Complaints : At present [ the applicant ] complains of a nervous breakdown .

Results of personal examination : An irregularly shaped , non - homogenous , greenishyellow ecchymosis measuring CARDINAL x QUANTITY is present on DATE of the inner right upper arm . CARDINAL similar round - shaped ecchymoses are present on the inner surface of the same area measuring QUANTITY in diameter : on DATE of the inner left upper arm measuring QUANTITY in diameter ; on the lower third of the inner left upper arm measuring QUANTITY and QUANTITY and on DATE of the outer left forearm measuring QUANTITY .

Conclusion : [ The applicant ’s ] bodily injuries in the form of ecchymoses [ around ] the right and left upper arms and the left forearm have been inflicted with blunt , hard objects possibly in the period mentioned ; [ the injuries ] taken separately as well as all together do not contain elements of [ short - term ] damage to health . ”

On DATE the investigator took an additional statement from the applicant . She stated that she had no objections to the opinion of the forensic medical expert and intended to pursue her complaint .

On DATE the investigator took another additional statement from the applicant . The relevant parts read as follows :

“ Question : In the course of collecting evidence PERSON and PERSON said that they did not hit you and did absolutely not grab your hands . What can you say about this ?

Answer : ... I do not know why PERSON and PERSON said that but it is logical that they would deny committing such acts . I will reiterate once again that PERSON and PERSON pulled and pushed me and grabbed my hands thus causing me injuries . ”

On DATE the investigator took a further additional statement from the applicant . She stated :

“ I inform you that since the time I [ went ] to the police ... [ H.A. ] and [ PERSON ] have not even apologised ; moreover , they have created such an atmosphere that it is impossible to work , since other employees ignore me and avoid contact with me for fear of losing their jobs . Since PERSON and PERSON are continuing this kind of behaviour , abusing their official capacity , in the circumstances I am unable to reconcile with them . I am complaining and requesting that PERSON and PERSON be prosecuted . I also wish to add that because of their actions I have had health problems and as a result have been on sick leave from DATE ... ”

On DATE PERSON was questioned again and stated , inter alia , that the applicant had made a false statement . He had never harassed her or grabbed her hands and had remained seated in his chair until she had left . As for the injuries discovered on the applicant ’s body , PERSON stated that he had never touched her and did not know how they had been inflicted .

It appears that no decision was taken by the investigator for DATE .

On DATE the applicant sent a written request to the head of ORG of ORG for criminal proceedings to be brought against PERSON and PERSON She stated in her request , inter alia , that she had been informed of the provisions of LAW , under which criminal proceedings could only be instituted on the basis of a complaint by her . She further stated that she had not reconciled with PERSON and PERSON and was calling for them to be prosecuted . On DATE the investigator took an additional statement from the applicant . A further additional statement was taken from her on DATE .

On DATE the prosecutor instructed the investigator to refuse to bring criminal proceedings against GPE and PERSON on the grounds that no crime had been committed . It was suggested that the applicant had perceived the events subjectively and that her supervisors had never used violence against her .

On DATE the investigator refused to bring criminal proceedings against H.A. and PERSON for lack of corpus delicti in their actions . The decision stated , in particular , that the applicant had made unclear and contradictory statements with regard to the incident . It further stated that the evidence collected had revealed that on DATE first GPE and then PERSON , who had gone to the latter ’s office , had tried to calm the applicant down , as she had been insulting PERSON During the incident PERSON had caught hold of her hand and taken the document that she had taken from ORG infliction of bodily harm was punishable under LAW , but negligent infliction of bodily harm was not punishable . In the case at hand the applicant ’s injuries had been caused by PERSON and PERSON ’s negligence ; it had not been established that they had intentionally caused her injuries .

On DATE the applicant lodged a complaint with the prosecutor against the investigator ’s decision . She argued , inter alia , that contrary to what was stated in the decision she had described in detail how she had been treated . In particular , she had submitted that first H.A. had grabbed her hands using force , harassed her and locked her in his office so that she could not leave . Thereafter PERSON had come in and also assaulted her . The applicant complained that the conclusion in the investigator ’s decision , according to which PERSON and PERSON had caused her injuries by negligence , could not be substantiated and pursued the purpose of exonerating public officials from responsibility . She further complained that , as a result of deliberate violence on the part of GPE and PERSON , she had experienced severe emotional suffering as a woman since her superior had debased her and caused her serious bodily harm without good reason , right in the workplace . In addition , the applicant stated that the incident had taken place in the workplace and naturally all the witnesses questioned by the investigator were the subordinates of PERSON and PERSON If criminal proceedings were instituted , they would be questioned as witnesses and warned about criminal liability for making false statements .

H.A. also lodged a complaint against the investigator ’s decision , claiming that it had not been established that he or PERSON had ever hit the applicant .

On DATE the prosecutor dismissed the applicant ’s complaint and allowed ORG ’s complaint . In particular , the prosecutor upheld the investigator ’s refusal to institute criminal proceedings but changed the grounds for it , stating that no crime had been committed involving PERSON and PERSON The decision stated that no evidence had been obtained that would establish that PERSON and PERSON had inflicted injuries on the applicant , except her own unspecified and contradictory statements . As regards the applicant , the decision stated , inter alia , that because the stress she had suffered as a result of the incident in GPE ’s office she had perceived and described what had happened in a subjective manner . In these circumstances , her contradictory statements did not correspond to the evidence gathered but that did not create grounds for prosecuting her for false accusations .

On DATE the applicant lodged a complaint with the GPE and ORG ( hereinafter “ the ORG ” ) , requesting that criminal proceedings be instituted . She reiterated her previous arguments and complained , in particular , that the question of her injuries had not been addressed at all in the prosecutor ’s decision , which had ignored the results of the forensic medical examination . In the end , it had never been established who had inflicted her injuries . The applicant further complained that the prosecution had relied on the statements of subordinates of those who had committed the offence in question . Their statements could not be considered objective and reliable in view of the serious fear of those concerned losing their jobs . If criminal proceedings were instituted , they would have the procedural status of witnesses and would be warned about criminal liability for making false statements .

On CARDINAL DATE ORG dismissed the applicant ’s complaint . In doing so , it found that the disputed decision had been lawful , while the applicant ’s arguments stemmed from an individual and subjective interpretation of the events in question and the procedural measures undertaken in relation to them .

The applicant lodged an appeal against ORG decision . She argued , inter alia , that it had failed to examine her arguments . In particular , the issue of the existence of a number of injuries on her body as established by the forensic medical examination had not been addressed at all .

On DATE ORG dismissed the applicant ’s appeal and fully upheld ORG decision . In doing so , it stated that the applicant had made unclear and contradictory statements about the circumstances of the incident which had not been corroborated by other evidence , namely the statements of PERSON , PERSON and others questioned in relation to the incident .

On DATE the applicant lodged an appeal on points of law . She argued that the decisions of ORG and ORG had failed to explain the existence of injuries on her body or the fact that PERSON had locked her in his office . She also reiterated her arguments in relation to the refusal to institute criminal proceedings and the unreliability of the statements made by her colleagues .

On DATE ORG declared the applicant ’s appeal on points of law inadmissible for lack of merit .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

At TIME on DATE the applicant was arrested as a suspect in a criminal case . On DATE he was charged with multiple episodes of fraud .

On DATE the First - Instance Panel of ORG of GPE , rejecting the prosecutor ’s request to place the applicant in pre - trial detention , ordered the applicant ’s release under police supervision . The applicant was released at TIME on DATE .

On DATE ORG of ORG of GPE , reversing the lower - instance decision , placed the applicant in pre - trial detention for DATE . It justified its decision solely by noting that the applicant had been charged with a serious crime carrying a possible penalty of more than DATE imprisonment . This fact in itself , in ORG view , substantiated the risk of the applicant absconding , given that Article CARDINAL § CARDINAL of the Code of Criminal Procedure ( “ the ORG ” ) , as in force at the material time , provided that the seriousness of an offence could constitute grounds for the imposition of pre - trial detention .

On DATE amendments were introduced to LAW ORG ; those amendments , inter alia , provided that , subject to assessment by the national courts , pre - trial detention should in principle only be the last resort in cases where

On DATE ORG of the GPE ORG , having heard the prosecutor ’s argument that more time was needed to finalise the investigation , extended the applicant ’s pre - trial detention for DATE , until DATE . The court did not address the question of whether the required investigative actions could be conducted without the applicant ’s continued detention . The applicant ’s reasons for his objection to any prolongation ( his good reputation and family situation ; the absence of previous convictions ; and formal assurances from several public persons , including a member of parliament ) were dismissed by the court . The court also refused an offer made by ORG to post bail for the applicant in the form of bonds with an approximate value of CARDINAL NORP laris ( GEL , MONEY ( ORG ) ) , reasoning that , under LAW of the ORG , persons being charged with serious offences were not subject to release on bail .

On DATE ORG of ORG upheld the order of CARDINAL DATE . Like the lower - instance court , the appellate court did not address the possibility of imposing a more lenient measure of restraint in order to ensure the aims of the investigation .

On DATE the applicant requested that his pre - trial detention be replaced by a more lenient measure of restraint . The prosecutor agreed to the applicant ’s request .

On DATE the GPE ORG released the applicant on bail on payment of a security of GEL MONEY ( approximately EUR CARDINAL,CARDINAL ) . When ordering his release , the court took into consideration the applicant ’s good references and the fact that he had fully compensated the injured party for the damage caused by his allegedly fraudulent activities .

At the time of submission of the present application , while the applicant contended that he was unable to have certain unspecified witnesses examined and to obtain expert opinions pertinent to his case , the criminal proceedings against him were still pending .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

At the material time all the applicants were detained in NORP penal facilities . Where relevant , the dates of their detention are listed in GPE

While in detention , the applicants Mr GPE , PERSON , and Mr PERSON lodged defamation claims against private third parties ; the applicants Mr GPE , Mr Resin , Mr GPE , PERSON , Mr PERSON , PERSON and Mr ORG brought claims seeking compensation for the allegedly inhuman conditions of their detention ; and the applicant Mr PERSON lodged a civil claim for compensation , alleging that the criminal proceedings had been instituted unlawfully .

None of the applicants were able to attend the hearings at which their claims were examined . The domestic courts refused them the possibility to be present at the hearing , on the ground that there was no domestic legal provision for bringing detainees to courts . In particular , they quoted Article CARDINAL of the Code on LAW ( see paragraph CARDINAL below ) and the relevant provisions of LAW . In the other cases , the issue of the applicants’ presence in court was not addressed .

The applicants appealed , raising the question of their appearance in court in the appeal statement . Some submitted a separate request seeking leave to appear before the appeal court . The appeal courts either dismissed the applicants’ arguments or concluded that their absence from the court was in line with the legislation and did not contravene the principle of fairness .

NORP The applicants’ claims were refused at CARDINAL levels of jurisdiction . The dates of the final judgments are set out in GPE


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 .