Preliminary objections joined to merits and dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Dean Spielmann;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva

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

On DATE the applicant and another individual , PERSON , were arrested by the police on suspicion of having committed , inter alia , aggravated assault against TIME

Criminal proceedings were initiated in that connection , throughout which the applicant and his co - defendant pleaded their innocence .

On DATE the applicant and his co - defendant were found guilty of the charges and were sentenced to CARDINAL and DATE imprisonment respectively by ORG .

The applicant lodged an appeal on points of law and unsuccessfully sought leave to attend the hearing on his appeal before ORG .

Following his questioning at the police station after his arrest , the applicant complained to the public prosecutor ’s office that he had been ill - treated by police officers who had tried to obtain a confession from him ( for details concerning similar allegations of ill - treatment made by the applicant ’s co - defendant , see PERSON v. GPE , no . CARDINAL , DATE ) .

As a result , criminal proceedings ( case no . DATE ) were initiated against the police officers for abuse of official power . On DATE those criminal proceedings were discontinued by the GPE police station investigator ( PERSON rajona policijas pārvalde ) on grounds of insufficient evidence . The investigator found , inter alia , that the applicant ’s allegations were incoherent , and concluded that the “ light ” injuries he had sustained could have been caused during his arrest .

On DATE the applicant lodged an application ( no . CARDINAL/CARDINAL ) with the ORG . He alleged a breach of LAW , complaining of having been subjected to ill - treatment during the pre - trial investigation and of the lack of an effective investigation into those allegations . He also alleged breaches of LAW ( conditions of detention following his conviction ) , LAW ( duration of pre - trial detention ) , LAW ( lack of compensation ) , LAW ( refusal to grant him leave to attend ORG hearing and overall duration of the criminal proceedings ) , and LAW taken in conjunction with Articles CARDINAL and CARDINAL of the LAW ( lack of legal assistance ) . He lodged a further complaint under LAW alleging that the criminal proceedings which had resulted in his conviction had been unfair as his confession had been obtained from him as a result of ill - treatment in breach of LAW .

On DATE the Government were given notice of the applicant ’s complaints concerning , inter alia , his ill - treatment and the lack of an effective investigation into his allegations in that regard .

On DATE the Government submitted the following unilateral declaration :

“ The Government of GPE ( hereinafter DATE the Government ) represented by [ their ] Agent PERSON admit that the physical treatment of PERSON ( hereinafter DATE the applicant ) by the police officers , as well as the effectiveness of the investigation of the respective applicant ’s complaints , the access to legal aid and effective remedies to apply for the compensation of damages , the length of criminal proceedings [ against the applicant ] , as well as the lack of effective remedy did not meet the standards enshrined in LAW [ CARDINAL § CARDINAL ] , Article [ CARDINAL § CARDINAL ] , LAW ) . Being aware of that , the Government undertake to adopt all necessary measures in order to avoid similar infringements in future , as well as to provide an effective remedy .

Taking into account that the parties have failed to reach a friendly settlement in this case , the Government declare that they offer to pay ex gratia to the applicant compensation in the amount of CARDINAL ORG ( [ approximately ] CARDINAL ORG ] ) , this amount being the global sum and covering any pecuniary and non - pecuniary damage together with any costs and expenses incurred , free of any taxes that may be applicable , with a view to terminat[ing ] the proceedings pending before ORG hereinafter DATE the ORG ) in the case [ of ] GPE v. GPE ( application no . CARDINAL ) .

This payment will constitute the final resolution of the case . ”

On DATE ORG to which the case had been allocated adopted a decision in which , inter alia , it took note of the terms of the ORG ’s declaration and , by virtue of LAW § CARDINAL of the LAW , struck out the complaints mentioned in the unilateral declaration . The relevant paragraphs of the decision read as follows :

“ DATE . ORG observes at the outset that the parties have not reached agreement on the terms of a friendly settlement of the case . It reiterates however that a distinction must be drawn between , on the one hand , declarations made in the context of strictly confidential friendly - settlement negotiations and , on the other , unilateral declarations DATE such as the CARDINAL at issue – made by a respondent Government in public and adversarial proceedings before the ORG . In accordance with LAW , the ORG will proceed on the basis of the Government ’s unilateral declaration and the parties’ observations submitted outside the framework of the friendly - settlement negotiations , and will disregard the parties’ statements made in the context of exploring the possibilities for a friendly settlement of the case and the reasons why the parties were unable to agree on the terms of a friendly settlement ( see PERSON v. GPE ( preliminary objection ) [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINALVI ) .

The ORG further refers to LAW , the relevant parts of which provide :

‘ CARDINAL . The ORG may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

( c ) for any other reason established by ORG , it is no longer justified to continue the examination of the application .

However , the ORG shall continue the examination of the application if respect for human rights as defined in the LAW and the Protocols thereto so requires.’

GPE Acar , cited above , § DATE ; see also , for example , PERSON v. the GPE ( striking out ) , no . CARDINAL , § CARDINAL , ORG CARDINALIX ; ORG v. GPE ( striking out ) , no . GPE , § CARDINAL , DATE ; PERSON and Others v. GPE , no . MONEY , § CARDINAL , CARDINAL DATE ; ORG and PERSON GPE ( dec . ) ( striking out ) , no . CARDINAL , CARDINAL DATE ; GPE v. GPE DATE . ) ( striking out ) , no . CARDINAL , DATE ; Stark and Others v. GPE ( striking out ) , no . CARDINAL , § DATE , DATE ; PERSON v. GPE DATE . ) ( striking out ) , no . CARDINAL , CARDINAL DATE ; and PERSON DATE . ) ( striking out ) , no . CARDINAL , DATE ) .

As to the ill - treatment to which the applicant was allegedly subjected in police custody and the effectiveness of the investigations carried out , although the ORG has not to date found a violation of LAW by the NORP police in that specific context , it nevertheless points to its clear and very extensive case - law in this regard ( see , among many other authorities , PERSON v. GPE [ ORG ] , no . ORG , § § CARDINAL - CARDINAL , ORG CARDINALV ; PERSON v. GPE , no . CARDINAL , § § PERCENT , ORG CARDINALVIII ; and ORG and Others v. GPE , no . GPE , § § CARDINAL - CARDINAL , DATE ) . The same is true as regards the principles governing the granting of legal aid as a component of the right of access to a court ( see , for example , ORG , DATE , § § CARDINAL , Reports of Judgments and Decisions CARDINAL ; P. , C. and PERSON GPE , no . CARDINAL , § § CARDINAL - CARDINAL , ORG CARDINALVI ; PERSON v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINALIII ; and GPE v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) .

In their declaration in the present case the Government have recognised that the treatment to which the applicant was subjected by the police officers while in police custody , the manner in which the investigations were carried out in that regard , the handling of the applicant ’s claims for compensation and in particular the refusal of his applications for legal aid in order to gain access to the compensation procedure , as well as the length of the criminal proceedings against him , infringed Articles CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Convention . They have offered to pay the applicant ORG CARDINAL,CARDINAL in compensation and undertake to take all necessary measures to prevent similar violations in the future .

In view of the nature of the undertakings contained in the ORG ’s declaration , the ORG considers that it is no longer justified to continue the examination of the complaints in question . That decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress . The same applies to the complaint under LAW No . CARDINAL , which is identical in substance to the complaint under LAW concerning the length of the criminal proceedings in question ( paragraph CARDINAL in fine ) . The ORG is further satisfied that respect for human rights as defined in the LAW and the Protocols thereto does not require it to continue its examination of this part of the application ( LAW in fine ) .

Accordingly , the case should be struck out of the list in so far as it concerns the complaints referred to in DATE , DATE and CARDINAL of this decision . ”

In the same decision , the ORG declared admissible the complaints concerning the applicant ’s conditions of detention ( Article CARDINAL ) and the refusal to grant him leave to attend ORG hearing ( Article CARDINAL ) , and dismissed all the other complaints , including the complaint that the criminal proceedings had been unfair owing to the admission of evidence obtained under duress ( Article CARDINAL ) . On the latter point the ORG found as follows :

“ DATE . Relying on Articles QUANTITY and CARDINAL , DATE and CARDINAL of the LAW , the applicant complained of the overall unfairness of his conviction for the armed robbery allegedly committed in DATE . He maintained in that connection that a confession had been obtained from him under duress and that the courts had refused several requests made by him for a confrontation . Lastly , the applicant contended that he had been convicted solely on account of his ethnic and social origin and his previous convictions .

The Court , having regard to all the evidence in its possession and in so far as it has jurisdiction to examine the allegations made , finds no appearance of a violation of the rights and freedoms guaranteed by the provisions on which the applicant relies . In particular , it reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the ORG , which is not the case here ( see , among many other authorities , PERSON GPE , no . GPE , § DATE , ORG CARDINALV ) .

It follows that these complaints are manifestly ill - founded and must be rejected pursuant to LAW and CARDINAL of the Convention . ”

On DATE the ORG adopted a judgment – GPE v. GPE ( no . CARDINAL/CARDINAL ) – finding a violation of LAW ( conditions of detention ) and LAW ( refusal to grant leave to attend ORG hearing ) and awarding MONEY [ ORG ] in compensation for the non - pecuniary damage suffered on account of the LAW violation .

On DATE the applicant requested the public prosecutor ’s office to reopen the criminal proceedings in which he had been convicted ( see paragraph CARDINAL above ) as well as the proceedings concerning his alleged ill - treatment by police officers ( see paragraph CARDINAL above ) . He relied on the terms of the Government ’s unilateral declaration of DATE and on sections CARDINAL(CARDINAL ) , CARDINAL ) and CARDINAL of LAW ( see paragraphs CARDINAL below ) .

On DATE a prosecutor attached to ORG dismissed the applicant ’s request , finding that none of the grounds for the reopening of criminal proceedings set out in section CARDINAL(CARDINAL ) of LAW applied . The prosecutor also found as follows :

“ ... The case of GPE v. GPE ( no . CARDINAL/CARDINAL ) contains the Government ’s unilateral declaration , the conclusions of which are applicable only to the circumstances and the events examined within the scope of that case . It can not be concluded from the judgment of DATE adopted by ORG that the ORG examined and assessed any activities carried out by the law - enforcement officers during the pre - trial investigation in the criminal proceedings ... Accordingly , the conclusions reached in [ the ORG ’s ] judgment of DATE and the ORG ’s unilateral declaration of DATE can not be applied or connected to the criminal proceedings ... ”

In an appeal lodged on DATE the applicant reiterated that there was a legal basis for reopening the criminal proceedings concerning his ill - treatment , on account of the fact that the ORG ’s unilateral declaration had expressly recognised the violation of LAW , a circumstance which had led the ORG to strike out that complaint . He further argued that at the time his criminal case was examined by the domestic courts , the judicial authorities had been unaware that the investigation into his allegations of ill - treatment was in breach of LAW .

In a final decision of DATE a higher - ranking prosecutor upheld the decision of CARDINAL DATE . The prosecutor noted that , under section ORG ) of LAW , only criminal proceedings that had ended with a valid court judgment or decision could be reopened , and only provided that the ground for requesting such reopening was among those listed in that provision . The prosecutor further found as follows :

“ Having examined the foregoing , I find that the conclusion of the prosecutor in her decision of CARDINAL DATE is valid and well - founded , to the effect that your application dated DATE requesting the reopening of the criminal proceedings in cases nos . DATE on the basis of new circumstances does not comply with any of the conditions prescribed by section PERSON ) of LAW which could serve as grounds for reopening the above - mentioned criminal proceedings . The prosecutor did not establish the existence of any such conditions during the examination of your application , which is why I regard as reasonable her decision to refuse the reopening of the criminal proceedings in cases LAW CARDINAL and DATE on the basis of newly disclosed circumstances .

As already mentioned , LAW prescribes in detail all the circumstances which shall be recognised as newly disclosed and on the basis of which criminal proceedings ending in a valid court judgment or decision may be reopened . LAW does not make any provision for these circumstances to be expanded . In examining your complaint I did not find established any of the newly disclosed circumstances prescribed by section GPE ) of LAW . Likewise , I did not find any opinion by an international judicial authority relating to the decision of the NORP court in case no . DATE and finding that the judgment of ORG which came into force on DATE did not comply with international law and regulations binding on GPE . ORG did not express such an opinion in its judgment of DATE or in the decision of CARDINAL DATE in which that international court examined your application . I would also like to point out that , contrary to your allegations , ORG in its decision of DATE stated that in the adoption of its decision concerning inhuman treatment by police officers during the criminal investigation it did not find any violation of international laws or regulations .

In your application you emphasised that the criminal proceedings in cases nos . CARDINAL and DATE should be reopened in connection with the unilateral declaration of ORG mentioned by ORG on DATE , in which ORG recognised that the physical treatment of PERSON by police officers , the effectiveness of the investigation into the applicant ’s complaints , his access to legal aid and to effective remedies by which to apply for compensation for damage , the length of the criminal proceedings , and the lack of an effective remedy , did not meet the standards enshrined in ORG , CARDINAL § DATE , CARDINAL § CARDINAL , CARDINAL and CARDINAL of ORG . I would like to make clear that , according to section CARDINAL(CARDINAL ) of LAW , the above - mentioned unilateral declaration by ORG is not recognised as a newly disclosed circumstance and can not therefore be regarded as a basis for reopening the criminal proceedings in cases nos . ORG and DATE .

In view of the above - mentioned considerations , there is no reason to quash the decision [ ... ] dated DATE concerning the refusal to reopen the criminal proceedings in the light of newly disclosed circumstances ... ”


Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Ms L. Kušan , a lawyer practising in Ivanić Grad .

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

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

The applicant is the owner of a hotel , NORP , in PERSON , a municipality in the coastal part of GPE , which he bought with a view to first reconstructing it and later on using it commercially . The hotel was built in DATE , according to a building permit issued in DATE , and was registered in ORG .

At the relevant time the regulations concerning zoning permits in PERSON were ORG ( ORG o donošenju Prostornog plana općine ORG , ORG of GPE , nos . CARDINAL/CARDINAL , CARDINAL , QUANTITY , DATE and DATE ) , a larger central municipality from which the PERSON LOC municipality was formed , and ORG in LOC ( ORG o odredbama za provođenje u izgrađenim naseljima na području PERSON , hereinafter “ the LAW ” ) adopted by the Baška GPE in DATE and published in ORG of the Baška Voda Municipality no . CARDINAL on DATE . According to these regulations and the relevant domestic law ( see paragraph CARDINAL below ) , a zoning permit ( lokacijska dozvola ) was required before any construction could be commenced on the buildings in the area concerned .

On the basis of the above zoning documents , on DATE and DATE the owners of the properties adjacent to the applicant ’s hotel obtained zoning permits from ORG , Construction and Ecology ( hereinafter : the “ ORG ” ) for renovation and reconstruction of their buildings .

On DATE the applicant applied to ORG for a zoning permit as required by the relevant legislation before reconstruction works could be commenced . The applicant submitted all relevant documents concerning his ownership of the hotel and the reconstruction project . In his project the applicant indicated that the hotel consisted of a ground - floor , CARDINAL upper floors and in CARDINAL part an additional fourth floor whereas he wanted to build a basement and a loft and to extend further the fourth floor .

On DATE , while the applicant ’s request was still pending , ORG ( ORG zaštite okoliša i prostornog uređenja , hereinafter “ the Ministry ” ) ordered the Baška GPE to set aside ( staviti izvan snage ) ORG , after finding that they had been adopted contrary to the relevant law . ORG found that ORG merely reflected provisions of a similar document of LOC which had been already found by ORG to be contrary to the relevant law .

On DATE the Baška Voda Municipality adopted a Decision setting aside ORG and published it in ORG of the Baška Voda Municipality no . CARDINAL .

Thereafter , on DATE ORG dismissed the applicant ’s request for a zoning permit . The relevant part of the decision reads :

“ Under section CARDINAL § CARDINAL of GPE ( Official Gazette nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) the zoning permit is an administrative decision which must be issued on the basis of zoning documents , special law and other relevant acts , in accordance with the law .

Given that at the moment the Baška GPE does not have the relevant zoning documents , it follows , and in view of what was said above , that zoning permits for renovation or reconstruction of buildings can not be issued until the adoption of the municipal spatial plan or some related spatial plan . ”

On DATE the applicant lodged an appeal with ORG , pointing out that he had lodged his request for a zoning permit on DATE and that his request had been accompanied by all relevant documents , which followed from the fact that ORG had not dismissed his request as unsubstantiated or ill - founded . Instead , his request had been dismissed only because LOC had not adopted a spatial plan , despite the fact that he had lodged his request when the relevant zoning documents existed . He therefore considered that the law and the zoning documents which existed and were relevant at the time when he had lodged his request , should be applied .

On DATE the Ministry quashed the first - instance decision and remitted the case . It instructed ORG to determine whether a zoning permit could be granted on the basis of the zoning documents adopted for the wider area .

In the resumed proceedings , on DATE ORG again dismissed the applicant ’s request . It found that the zoning document for the larger area , that is , ORG ( ORG plan PERSON županije , adopted on DATE , published in ORG of ORG no . CARDINAL/CARDINAL ) , prescribed adoption of the spatial plan of the Baška GPE , and itself contained no provisions on the basis of which a zoning permit could be granted .

On DATE the applicant lodged an appeal before ORG , arguing that ORG had failed to comply with the instruction of ORG DATE . He considered that it should be established whether a zoning permit could be issued on the basis of a spatial plan which covered an even wider area than that of the county - wide spatial plan . He pointed out that he should not bear burden for the failure of ORG to adopt a spatial plan . He also considered that a zoning permit should be issued on the basis of the zoning documents which had existed at the moment when he had lodged his request .

On DATE the ORG dismissed the applicant ’s appeal and upheld the first - instance decision . It endorsed the finding of ORG , that at present there was no zoning document on the basis of which a zoning permit for property located in PERSON could be granted .

The applicant then brought an action in ORG ( ORG ) on DATE contesting the decisions of the administrative authorities .

On DATE ORG dismissed the applicant ’s action . It held that the Splitsko - Dalmatinska County Spatial Plan provided for an obligation to prepare and adopt a spatial plan for the Baška GPE , but that such plan had not yet been adopted , and that therefore the applicant ’s request for a zoning permit could not be granted .

On DATE the applicant lodged a constitutional complaint before ORG ( Ustavni sud PERSON ) . He pointed out that he had submitted his request for a zoning permit at the time when the zoning documents had existed for the PERSON GPE . However , it had taken the administrative authorities DATE to decide on his request , and in the meantime the zoning documents had been set aside and a spatial plan had not yet been adopted . Therefore , given that there had been a legal gap , the administrative authorities had been obliged to apply the law and the zoning documents which had existed at the time when he had lodged his request . He contended that this had done significant damage to his legitimate interests and that there had been no legitimate public interest justifying the refusal to grant him a zoning permit , since such permits had been issued for a number of properties adjacent to his hotel .

In the meantime , the Baška Voda Municipality had proceeded with the adoption of a spatial plan . It first initiated a public debate in which various experts , public officials and interested citizens were able to put forward all their arguments , proposals and objections . The municipal executive authorities then accepted or rejected the proposals and objections and drafted a provisional spatial plan . The provisional draft was afterwards submitted for approval to the Ministry , the competent ORG authorities , ORG ( PERSON uprava za zaštitu prirode ) , ORG ( ORG kulture ) , ORG ( ORG obrane ) , the public water utilities authorities , ORG ( GPE poljoprivrede , ribarstva i ruralnog razvoja ) , ORG ( ORG regionalnog razvoja ) and the competent seaport authority . Only after all the approvals were obtained the final draft spatial plan was submitted to ORG which adopted it on DATE ( ORG of the PERSON GPE no . CARDINAL/CARDINAL ) .

After the adoption of the spatial plan the applicant did not submit a new request for a zoning permit .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible as manifestly ill - founded . ORG decision was served on the applicant ’s representative on DATE .

The relevant provisions of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) , CARDINAL , DATE ) read as follows :

“ The right of ownership shall be guaranteed ... “

The relevant provisions of GPE ( Zakon o prostornom uređenju , ORG nos . CARDINAL , DATE , CARDINAL , CARDINAL and CARDINAL ) read :

Section CARDINAL

“ ( CARDINAL ) A municipal spatial plan shall be adopted by the municipal council , after the state administration office has confirmed that it is compatible with the county spatial plan ...

Section CARDINAL

“ ( CARDINAL ) Any spatial intervention must be in accordance with zoning documents , relevant law and any zoning permit .

( CARDINAL ) A zoning permit is an administrative decision which must be issued on the basis of zoning documents , special law and other relevant acts , in accordance with the law ... ”

Section CARDINAL

“ The inspection of individual and general acts , conditions and manner of work of relevant legal and physical persons , and the enforcement of measures under LAW , shall be conducted by an Inspection of the Ministry [ of ORG ] . ”

Section CARDINAL

“ ( CARDINAL ) The inspector shall order the local authority to correct irregularities and/or any unlawfulness in the report or planning [ of spatial development ] , found in the inspection .

( CARDINAL ) If the local administration fails to comply with the order under paragraph CARDINAL of this section , the Ministry shall , upon a request of the Inspector , set aside the report or plan of measures [ for spatial development ] . ”

GPE enacted on DATE ( ORG no . CARDINAL/CARDINAL ) , in CARDINAL provided for municipal spatial plans adopted under the previous legislation to be applied until new zoning documents were adopted , and in any event no longer than DATE from the moment when the LAW entered into force . This time - limit elapsed on DATE .

The LAW to LAW of DATE ( Zakon o izmjenama i dopunama PERSON o prostornom uređenju , ORG no . DATE ) in DATE extended the period for adoption of municipal spatial plans to DATE .

The LAW to LAW of DATE ( Zakon o izmjenama i dopunama PERSON o prostornom uređenju , ORG no . CARDINAL ) in section CARDINAL extended the period for adoption of municipal spatial plans to CARDINAL DATE .

Section CARDINAL of the LAW to LAW of DATE ( Zakon o izmjenama i dopunama PERSON o prostornom uređenju , ORG no . CARDINAL ) extended the period for adoption of municipal spatial plans to DATE .

Section CARDINAL of ORG of DATE ( ORG o prostornom uređenju i gradnji , ORG no . CARDINAL/CARDINAL ) extended the period for adoption of municipal spatial plans to CARDINAL DATE , and expressly prohibited the grant of zoning permits in the absence of relevant zoning documents .


Preliminary objection joined to merits (Article 35-3 - Ratione materiae);No violation of Article 7 - No punishment without law (Article 7-1 - Retroactivity)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and is currently in the specialised hospital centre ( CHS ) of PERSON .

On DATE the applicant , who was CARDINAL , went to the workplace of GPE , who had been his girlfriend and who had told him , following threats and violence on his part , that she no longer wanted to see him . The applicant inflicted several stab wounds on PERSON , who died from a massive haemorrhage , having been wounded in the throat and thorax , and on CARDINAL other individuals . On DATE the applicant was placed under judicial investigation , charged with the premeditated murder of his former girlfriend and the intentional wounding of the other CARDINAL people , and remanded in custody . On DATE the Prefect ordered his compulsory admission to FAC .

The applicant was examined by CARDINAL boards of expert psychiatrists who found that , at the material time , he was suffering from a mental disorder which had impaired his discernment and the ability to control his actions within the meaning of Article CARDINAL - CARDINAL of the Criminal Code ....

On DATE the public prosecutor asked the investigating judge at the GPE tribunal de grande instance to refer the case to ORG for a ruling as to the applicant ’s lack of criminal liability , in accordance with LAW , derived from LAW DATE on preventive detention and declarations of criminal insanity ( hereafter “ the DATE Act ” , ... ) .

In a decision of DATE the investigating judge found that it transpired from his investigation that there was sufficient evidence against the applicant to show that he had committed the offences as charged and that there were plausible reasons to apply LAW , first paragraph , of LAW . He ordered the transmission of the case file by the public prosecutor to ORG for the purposes of referral to ORG .

On DATE ORG at ORG made his submissions calling for referral to ORG for a ruling as to the applicant ’s lack of criminal liability on grounds of criminal insanity , in accordance with the procedure set out in new LAW of LAW , which provided in particular for a public hearing ...

In a decision of DATE the President of ORG noted that it was impossible for medical reasons for the applicant to appear at the hearing . At the hearing of DATE , his representative argued in particular that the decision of CARDINAL DATE had breached the principle that harsher criminal legislation could not be applied retrospectively . He indicated that under the above - mentioned LAW of LAW , ORG was required to rule on the commission of the offences by the applicant when deciding on compulsory psychiatric treatment , for an indefinite duration , and that this was tantamount to conviction for an offence and to the imposition of a sentence which had not been applicable at the material time .

NORP In a judgment of CARDINAL DATE ORG stated that there was sufficient evidence to show that the applicant had “ intentionally killed PERSON and that he lacked criminal liability for those acts on the ground that he was suffering from a mental disorder which had impaired his discernment and ability to control his actions . It ordered his compulsory hospitalisation pursuant to LAW of LAW , derived from the DATE Act ... , on the grounds that “ it transpire[d ] from the proceedings that [ the applicant ’s ] mental disorder represent[ed ] a risk for the safety of others and GPE ] long - term care which [ could ] only be provided in a hospital ” . The court also prohibited him , for DATE , from having any contact with the complainants and from possessing or carrying a weapon , those being preventive measures provided for under new LAW of LAW ... It sent the case back to ORG for a judgment on the applicant ’s civil liability and on the claims of damages . ORG had previously ruled on the procedural objections raised by the applicant ’s representative , including argument concerning the immediate application of the provisions of DATE Act and the alleged violation of LAW :

“ ... The declaration of the existence of sufficient evidence that the person has committed the offence as charged does not constitute a conviction but a finding that there is a factual situation which could have legal consequences ...

... contrary to the pleadings and contrary to the rules on preventive detention , ORG does not rule on judicial confinement of unlimited duration but orders the compulsory hospitalisation of the individual in an institution mentioned in Article PERSON - CARDINAL of LAW , which provides for hospitalisation arrangements specifically in such contexts , and the ORG is immediately informed of the decisions . Thus the person concerned will be subject to the compulsory hospitalisation arrangements solely under the auspices of the medical and administrative authorities , depending on the evolution of his state of health .

Accordingly , this measure can not be regarded as a penalty but as a preventive measure . ... The PERSON of DATE and the Decree of DATE are thus applicable . ”

The applicant appealed against that judgment on points of law . In his grounds of appeal he argued , relying on Articles CARDINAL § CARDINAL and CARDINAL of the LAW , that the principle of “ no punishment without law ” precluded the immediate application of a procedure which had the effect of rendering him liable for penalties that his mental state would not have entailed under the former legislation in force at the material time . He contended that the declaration of his criminal insanity could not be accompanied by court - ordered sanctions or coercive measures , as this would breach the principle of the non - retrospective application of harsher criminal legislation .

Before ORG , the public prosecutor , in his opinion , took the view that it was impossible to find that there was sufficient evidence against the applicant to show that he had “ intentionally ” committed the offences as charged , since “ legally speaking , a state of criminal insanity related to a loss of discernment preclude[d ] a court from ruling on the mental element of the offence and consequently on the question whether the offences were made out under the law ” . He pointed out that the legislature had sought to ensure that the investigating judge would anticipate the declaration of criminal insanity and confine his assessment to the facts : “ as a result of such anticipation only the material element will stand , devoid of its punitive connotation , together with its ‘ objective imputation’ to an individual , which would serve as a basis for granting redress to the ‘ GPE and was in itself the focus of the legislative intent ” . On this point he called for the setting - aside of part of the judgment , namely the replacement of the operative part in order to delete the word “ intentionally ” .

In a judgment of DATE ORG dismissed the appeal on points of law :

“ ... The person under judicial investigation submitted that there could be no immediate application of the PERSON of DATE , as the provisions of Article MONEY [ of LAW ] derived therefrom would enable the judge to order , against the person declared criminally insane , measures which , by their effects , would be ‘ quasi - criminal sanctions’ , being listed in the person ’s criminal record .

To dismiss those arguments , the judgment uses the above - mentioned reasoning .

As those grounds stand , the judgment does not warrant the alleged complaint in so far as the provisions of LAW , which provides that the only penalties that may be imposed are those legally applicable on the date of the offence , do not apply to the preventive measures that are prescribed in cases of criminal insanity under Articles CARDINAL - CARDINAL and CARDINAL ...

... there is sufficient evidence [ against the applicant ] to show that he committed the offences of premeditated murder and wounding ... ”

In a decision of CARDINAL DATE , produced by the applicant with his observations , the Prefect of Saône - et - LOC denied his requests to go outside the institution unescorted . The ORG ’s letter to the responsible psychiatrist of the Sevrey CHS reads as follows :

“ ... In a letter dated DATE , I informed you that I had requested CARDINAL assessments to ascertain whether I would be able to grant such leave .

Those assessments reached me DATE . CARDINAL states as follows : ‘ In view of Mr Berland ’s current state of health we can envisage allowing him to go outside unescorted in the context of a trial period with a process of social rehabilitation , which seems indispensable’ . The other one reads : ‘ his current state of health allows the possibility of unescorted leave to be envisaged . We should gradually move towards trial arrangements to consolidate the rehabilitation plans’ .

Moreover , in accordance with his instructions , issued following the judgment against Mr GPE , I have contacted the public prosecutor of ORG to inform him of the findings of the assessments which could lead me in the future to authorise Mr PERSON to leave the hospital unescorted .

The public prosecutor drew my attention to the prohibitions ordered by ORG on DATE against Mr Berland , pursuant to ORG CARDINAL - CARDINAL to CARDINAL of the Code of Criminal Procedure ...

In those circumstances , even though the assessments tentatively allow for the possibility of granting Mr Berland such unescorted leave , it appears impossible to me to guarantee that he would not come into contact during such leave , if therefore alone , with the complainants . Consequently I wish to inform you of my decision ... to grant Mr PERSON permission in the future to leave the hospital exclusively if escorted , depending on any assessment data that you may wish to transmit to me . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

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

The applicant lives in LOC .

The applicant was a member of a hunting association , ORG , based in PERSON ( hereafter “ the association ” ) .

On DATE the association ’s executive board initiated internal proceedings against the applicant before its disciplinary commission . The executive board sought the applicant ’s suspension until the next session of the association ’s general meeting ( skupština ) for reporting a member of the association to the police , falsely accusing him of the criminal offence of intimidation . The executive board argued that by doing so the applicant had committed a serious breach of his duties as a member , a disciplinary offence stipulated in the association ’s internal regulations .

By a decision of CARDINAL DATE the disciplinary commission dismissed the disciplinary action against the applicant . No appeals were lodged against that decision .

NORP The executive board nevertheless referred the matter to the general meeting for re - examination , convening an extraordinary session .

On DATE the general meeting adopted , by CARDINAL votes to CARDINAL , a resolution expelling the applicant from the association . He was informed that he could appeal against that decision and that any appeal would be examined at the general meeting ’s ( regular ) annual session .

The applicant appealed , but the general meeting ’s resolution was upheld by CARDINAL votes to CARDINAL following the adoption of another resolution at the DATE session held on DATE .

NORP The general meeting did not give any reasons for expelling the applicant in either of its resolutions .

On DATE the applicant brought a civil action against the hunting association in ORG PERSON u GPE ) , whereby he asked the court to declare unlawful the general meeting ’s resolution of DATE and to reinstate him as a member . He relied on section DATE ) of LAW ( see paragraph CARDINAL below ) and argued that the decision to expel him had been adopted in breach of the procedure provided for in the association ’s statute and its internal regulations on disciplinary proceedings . In particular , he submitted that , in the absence of appeals against the disciplinary commission ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) , the general meeting could not have overridden that decision because under the association ’s statute that commission was the only body authorised to decide on the expulsion of a member .

By a decision of CARDINAL DATE ORG declared the applicant ’s action inadmissible , on the grounds that the matter was outside the jurisdiction of the courts . The relevant part of that decision reads as follows :

“ Section CARDINAL(CARDINAL ) of LAW suggests that legal protection by way of civil action in the county court could be sought only if ORG or the other relevant body of the association had failed to examine a member ’s report regarding irregularities in the implementation of the statute [ of the association ] , or had failed to correct such irregularities .

Such a civil action would therefore be aimed at securing the implementation of the statute of the association , and thus would not provide for legal protection in the sense that a specific decision ... of the association could be declared unlawful .

Under section CARDINAL of the defendant association ’s Statute [ GPE ] the disciplinary tribunal imposes disciplinary measures against members who have breached their duties stipulated in the statute . According to section CARDINAL(CARDINAL ) of the defendant association ’s Rules on Disciplinary Proceedings and Disciplinary Liability of Members , a request for review may be lodged with ORG [ to contest ] ORG decision to expel [ a member ] . The time - limit for ORG to adopt a resolution on the request is not stipulated . ORG resolution is final .

... since the plaintiff in his action does not seek [ legal ] protection envisaged in section DATE ) of LAW , but asks [ the court ] to declare unlawful the defendant ’s resolution to expel him , on which [ issue ] it is for ORG to make a final decision ... this case does not fall within the jurisdiction of the courts ... ”

The applicant then appealed against that decision to ORG ( PERSON ) .

By a decision of DATE ORG dismissed the applicant ’s appeal and upheld the first - instance decision , reasoning as follows :

“ The first - instance court was correct in declaring the action inadmissible , because the case does not fall within the jurisdiction of the courts ...

In particular , pursuant to section DATE ) of LAW ... the conduct of associations is supervised by their members , and if a member finds irregularities in the implementation of the statute he or she is entitled to report it to the relevant body of the association designated in the statute or to ORG if there is no relevant body designated in the statute . Furthermore , if the written report is not examined at ORG or by the relevant body of the association designated in the statute within DATE of its submission , or if irregularities are not corrected , the member may bring a civil action in the county court within whose area of jurisdiction the registered office of the association is situated , with a view to protecting his or her rights as stipulated in the statute .

The said provision ... governs jurisdiction of the courts regarding the right of the members of an association to supervise its conduct . That right does not entail the power to contest the lawfulness of a decision adopted in disciplinary proceedings against the plaintiff as a member , as correctly explained in the impugned [ first - instance ] decision .

In this connection it should be taken into account that the case concerns membership of a ... voluntary organisation [ where ] members may under the internal rules regulate the protection of [ their ] membership rights . Therefore , the decision to expel a member does not fall within the jurisdiction of the courts under section DATE ) of LAW .

The defendant association is not an entity vested with public authority , and the decisions it adopts are not administrative acts , which means that the plaintiff ’s action could not even be examined by ORG under the [ relevant provisions ] of LAW . That is also the opinion of ORG , as expressed in the case ORG .

It follows that the county court was correct in deciding that courts have no jurisdiction to decide on the plaintiff ’s action ... ”

On DATE the applicant lodged a constitutional complaint against ORG decision . He alleged violations of his right to a fair procedure guaranteed by LAW paragraph CARDINAL of LAW ( see paragraph CARDINAL below ) , and also explicitly relied on LAW .

By a decision of DATE ORG ( Ustavni sud PERSON ) declared the applicant ’s constitutional complaint inadmissible and served its decision on his representative on DATE . It found that the case did not raise any constitutional issues .


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

The first applicant , PERSON , is a NORP national who was born in DATE . The second applicant , Mr PERSON , is a NORP national who was born in DATE . Both applicants live in PERSON . They are represented before the Court by Dr PERSON , a lawyer practising in GPE .

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

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

The second applicant arrived in GPE on DATE . He had obtained a visa on DATE in GPE , which was valid for CARDINAL entry for a duration of DATE , namely from DATE to DATE .

The second applicant ’s presence in GPE as from DATE was thus illegal under the provisions of LAW .

During his illegal stay , the second applicant was charged before ORG in connection with a violent incident which had occurred on DATE in the apartment in which he was residing . Following DATE of detention on remand the second applicant was granted bail and was released . The court ordered him not to leave GPE .

By a judgment of CARDINAL DATE the second applicant was cleared of attempted murder , but found guilty of possessing a knife without a licence . He was sentenced to DATE imprisonment . He served his sentence while his appeal was pending . By an appeal judgment of DATE the second applicant was acquitted of all the charges .

In DATE , the second applicant met the first applicant , who at the time was DATE , and they entered into a relationship . The second applicant moved in with the first applicant ’s family and has lived in their house since .

According to the applicants , a request to issue marriage banns for the couple was rejected on DATE that is not clear on the grounds that the first applicant was too young and her GPE approval was required . The second applicant was also told that he required a visa , as it was not sufficient that he was in GPE on the basis of a court order . Nevertheless , no visa was issued to him , at first because his passport was being held by the police in connection with the court case , and later for unspecified reasons .

According to the Government , in DATE the applicants verbally enquired with ORG about the documents which were necessary to contract a marriage . According to the principal officer of the registry ( who gave evidence in later proceedings ) , the necessary documents were a birth certificate , a free status certificate , a permit allowing the second applicant to marry a non - NORP woman ( as required by the NORP authorities ) , a valid passport and a valid visa . The application could not be processed DATE as the applicants did not have the required documents .

It can be seen in the documents submitted to the ORG that on DATE the applicants lodged an application with ORG ( voluntary jurisdiction ) , requesting that the court order LAW to issue their banns . PERSON objected , noting that the refusal had been a result of the fact that the second applicant had failed to submit the necessary documents , namely ( i ) a true copy of his birth certificate together with a certified translation , ( ii ) a free status certificate together with a certified translation , ( iii ) a passport or a visa covering his stay until the marriage , and ( iv ) the written consent of the first applicant ’s parents . Furthermore , the second applicant had been waiting to undergo a trial by jury . By a decree of DATE , their application was rejected as the applicants had not produced all the documents required by law .

On DATE the applicants verbally requested that ORG publish the marriage banns and to this end they produced the second applicant ’s birth certificate , a certificate of free status and an expired passport . Since their request was not accompanied by a permit issued by the NORP authorities allowing the second applicant ( as a NORP national ) to marry , as well as a valid passport and visa , their request could not be processed .

The applicants put their case to the ORG who by a decision of DATE found that the fact that the would - be spouse had not presented a valid visa should not have been an obstacle to the marriage banns being issued . He thus advised ORG to issue the banns . However , the recommendation went unheeded .

In the meantime , the second applicant submitted a declaration of good conduct and behaviour , a certified free status certificate and a certified birth certificate . By a letter of DATE the Director of ORG declared that the only missing document was the visa .

On DATE the applicants , assisted by a lawyer , lodged another application with ORG ( voluntary jurisdiction ) , requesting that it order ORG to issue the marriage banns given that the required visa was not a lawful requirement . Alternatively , if the court considered it to be a required document , they requested that the court refer the matter to the constitutional jurisdictions to establish whether there had been a violation of Articles CARDINAL of the Convention . By means of a decree of CARDINAL DATE the court found that , without prejudice to any rights of the applicants of obtaining constitutional redress si et quatenus [ if and in so far as ] , given that it appeared that the applicants had not produced all the necessary documents ORG had been justified in refusing to issue their marriage banns .

In DATE the applicants had a son , who was , however , registered as having an “ unknown father ” up to the date of the submission of observations , namely when the child was aged CARDINAL . The applicants submitted that they wished to rectify the position of the child per subsequens matrimonium .

On DATE the applicants , assisted by a lawyer , instituted constitutional redress proceedings , invoking Articles CARDINAL , CARDINAL and DATE of the Convention .

By a judgment of CARDINAL DATE ORG , in its constitutional jurisdiction , considered that the applicants had exhausted ordinary remedies , no further remedies were available , and it thus found a breach of LAW in respect of the applicants’ rights . The court considered that the refusal to issue the banns had not been justified , and ordered the authorities to reverse that decision . In particular , it noted that LAW ) and ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) did not provide that a passport or visa were to be submitted in order to issue marriage banns . While it was true that a certain amount of discretion was allowed LAW ) , which also referred to “ in addition to all other relevant information ” , such discretion had to operate to ensure good order and national security , and it had to be reasonable and proportionate to the aim pursued . The court considered that it was justified for a state to require a visa or a passport , nevertheless in the second applicant ’s case it appeared that it was not possible to issue him with a visa , though no justification for this had been submitted . Now that the second applicant had submitted all the relevant documents ( apart from the visa ) and that he had been living in GPE for DATE , the court could not find any justification or legitimate aim behind the registrar ’’ family life had not been affected in any way and no discrimination had been proved .

The respondents , namely the Director of ORG and ORG , appealed .

By a judgment of CARDINAL DATE ORG reversed the first - instance judgment . It considered that the applicants had not exhausted ordinary remedies as they had failed to institute ordinary proceedings before ORG ( FAC ) in its civil jurisdiction under LAW ( hereinafter the “ COCP ” - see paragraph CARDINAL below ) . ORG highlighted that according to domestic case - law , particularly PERSON vs ORG , ORG judgment of CARDINAL DATE , and the domestic case - law cited therein ( see paragraph CARDINAL below ) that procedure was a normal and ordinary procedure , CARDINAL that was regularly used , and there was nothing preventing the applicants from instituting such proceedings . The decree of the court of voluntary jurisdiction could be challenged by an ordinary application before ORG ( FAC ) which had the power to confirm , revoke or alter the decree being challenged . In the event of the applicants’ request being acceded to , the remedy would have been an effective one and there would have been no complaint concerning any breach of human rights .

The relevant articles of LAW , LAW of LAW , read as follows :

“ ( CARDINAL ) The celebration of marriage must be preceded by the publication of banns of matrimony .

( CARDINAL ) PERSON of matrimony shall state the name , surname , place of birth and residence of each of the persons to be married , the place where they intend to contract marriage and , unless the PERSON in the case of natural filiation or other circumstances deems proper to act otherwise , the name of the father and the name and surname of the mother of each of the persons to be married .

( CARDINAL ) A request for the publication of banns shall not be entertained unless it is delivered to the Registrar DATE before DATE of the intended marriage , or than such shorter period as the Registrar may in his discretion accept in special circumstances , and unless and until , in addition to all other relevant information , there are delivered to the Registrar-

( a ) the certificate of birth of each of the persons to be married ;

( b ) a declaration on oath made and signed by each of the persons to be married stating that to the best of his or her knowledge and belief there is no legal impediment to the marriage or other lawful cause why it should not take place .

Provided that if it is shown to the satisfaction of the Registrar that it is impracticable to obtain a certificate of birth required to be delivered by this sub - article , the Registrar may accept instead such other document or evidence as he may deem adequate for the purpose of this article . ”

“ ( CARDINAL ) If the Registrar is of the opinion that he can not proceed to the publication of the banns or that he can not issue a certificate of such publication he shall notify the persons requesting the publication of his inability to do so , giving the reasons therefor .

( CARDINAL ) In any such case , either of the persons to be married may apply to the competent court of voluntary jurisdiction for an order directing the PERSON to publish the banns or to issue a certificate of their publication , as the case may require , and the court may , after hearing the applicant and the Registrar , give such directions as it may deem appropriate in the circumstances , and the Registrar shall act in accordance with any such directions . ”

Article CARDINAL of the COCP ( Chapter CARDINAL of the Laws of Malta ) reads as follows :

“ No appeal shall lie from any decree of the ORG of voluntary jurisdiction ; but it shall be lawful for any party , who deems himself aggrieved , to bring an action before ORG , ORG , for the necessary order . ”

Relevant domestic case - law on the subject matter includes the case of PERSON vs Director of ORG ( see paragraph CARDINAL , above ) , concerning the registrar ’s refusal to issue the necessary banns on suspicion that it would have been a marriage of convenience . ORG confirmed the first - instance judgment , noting that the applicable principles to decide whether the applicants have or had at their disposal an alternative and effective ordinary remedy had been underlined by it in various judgments and in particular in GPE vs Director of Citizenship and Expatriate Affairs of DATE . Amongst other principles , ORG referred to : the existence of another remedy as an actual and objective fact ; that the remedy be accessible , just , effective and adequate in addressing the violation complained of ; that for a remedy to be effective it need not guarantee a favourable outcome , but it sufficed that it could be pursued in a practical , effective and efficient manner ; that the discretion of ORG in this respect must be carried out justly and in the best interest of the administration of justice in order to , on the one hand , avoid that the constitutional jurisdictions be burdened by cases which could or should have been dealt with by other competent courts or through other effective remedies , and on the other hand to ensure that a person is not denied the remedies available under LAW or the Convention . It considered that the fact that a remedy is not pursued is not sufficient for the constitutional jurisdictions to refuse to take cognisance of a case , if it is shown that the remedy referred to was not effective to give full redress ; however , when it is clear that there exists an available ordinary remedy , that must be pursued before seeking constitutional redress .

ORG held ( in PERSON ) that the plaintiffs had failed to challenge the decree of the court of voluntary jurisdiction by an ordinary application before ORG ( FAC ) , which had the power to annul and revoke the decree being challenged ( see also Director of Public Registry vs X , judgment of ORG ( FAC ) in its ordinary competence , of CARDINAL DATE ) . As had been held by the firstinstance court this was not an extraordinary remedy ; it had been used in the past and continued to be used .


The applicant , Mr Grigoriy Nikolayevich Pleshchinskiy , is a NORP national who was born in DATE and lives in GPE , GPE .


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

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


CASE OF FRANČIŠKA ŠTEFANČIČ  v. SLOVENIA

Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in PERSON . She is the mother of PERSON , born in DATE . Mr Štefančič suffered from paranoid schizophrenia and depression and had been admitted to ORG on several occasions . In DATE he lodged an extensive criminal complaint , alleging that he had suffered various injustices at the hands of his work colleagues , acquaintances , the police and other organisations . Upon examining the complaint , ORG decided not to pursue it . In DATE Mr Štefančič started to telephone ORG and go there in person on an almost DATE basis . He made various delusional accusations regarding murders that had gone unpunished “ since DATE NORP ” .

On DATE Mr Štefančič appeared at ORG , and was told by the receptionist that the office was closed DATE . He replied that he would come back DATE , armed , and that nobody would be able to hide from him . Having been told about Mr Štefančič ’s threats , the Head of ORG , ORG , telephoned ORG and told the staff what had happened . She was told that PERSON was mentally ill and had already been treated in the hospital several times . She was further advised to contact ORG and suggest that a referral be made for PERSON involuntary confinement . In addition , ORG was warned by PERSON consulting psychiatrist that over DATE his patient had threatened to kill several people , including his doctor , mother and sisters . In view of this , the psychiatrist had assessed that Mr Štefančič was dangerous and in need of treatment , and added that he should be taken seriously due to his physical strength . ORG also called the LOC police and told them about PERSON visits to ORG .

At TIME a doctor from the health centre telephoned the LOC police station to request police assistance with PERSON involuntary confinement on the grounds that he could become aggressive . She later took the request for his police - assisted transport and the order for his confinement to the police station in person .

At TIME the duty officer submitted the request to the commander of the police station , who granted it immediately .

At TIME officer PERSON from the LOC police station set off to the applicant ’s house and found her son , who was living there , at home . He informed officers at the LOC police communications centre , and they informed the health centre staff that they could proceed with the involuntary confinement . Police officer PERSON remained at the scene until health centre medical staff consisting of ORG , the doctor on duty , and PERSON and GPE , medical technicians , arrived . Also sent to the scene were GPE , a second officer from the LOC police station , police officer dog handler PERSON , and CARDINAL traffic officers of the Nova Gorica traffic police .

According to the police report of DATE based on the statements made by the police officers and medical staff , upon their arrival at TIME the police officers and medical technicians first talked to the applicant , who was sitting on a bench at the back of her house . They asked her whether her son was in the house and whether he was armed . She replied that her son was indeed in the house and was on the telephone . She further explained that she was not aware of him possessing any firearms . The medical team informed the applicant why they were there and then entered the house , while the police officers remained at the front door .

Dr B.A. informed PERSON that they were going to take him to a psychiatric hospital , but he refused to go with them . The medical team attempted to persuade him , but he became agitated and verbally aggressive . The police officers warned him that he would be taken to the hospital by force if he refused to go of his own free will .

NORP The medical technicians attempted to take hold of Mr Štefančič ’s arms , but he pushed them off and started to scream . PERSON then instructed the police officers to handcuff him , but when PERSON and PERSON attempted to restrain him , he resisted forcefully and pushed them off . In response , the police officers used physical force in order to push him to the ground , and PERSON ordered a muzzled dog on a leash to jump at him . As PERSON did not seem to react to the dog jumping at his chest , PERSON took it back to the police car . PERSON and GPE meanwhile continued to use physical force and managed to wrestle Mr Štefančič to the ground onto his back .

The QUANTITY police officers were then joined by dog handler PERSON , who used the “ rear chokehold ” technique on PERSON . Together they managed to put him into the recovery position and medical technician PERSON injected GPE ( an antipsychotic drug with tranquilising effects ) into his buttocks . As PERSON continued to resist , they could not administer the full dose of medication to him . The police officers then turned him onto his stomach , and PERSON handcuffed his hands behind his back . Medical technician PERSON injected him with ORG , medication used on psychiatric patients to reduce the tremors caused by antipsychotic drugs .

Mr Štefančič calmed down as soon as he received the second dose of medication . TIME , the police officers and medical technicians noticed that there was a brown palm - sized pool of liquid under his head . They alerted PERSON , who established that PERSON had vomited and assessed that it could have been attributed to exertion . However , when CARDINAL of the medical technicians checked Mr Štefančič again , he detected an irregular heartbeat , and again called out to the doctor . The medical team began to resuscitate him at TIME The police officers attempted to unlock his handcuffs , but only managed to free CARDINAL of his hands , before the key broke .

The applicant , who was waiting outside during the intervention , was heading to the front of the house when she heard loud noises and a dog barking . When she approached the front door , she saw PERSON massaging her son ’s chest . She asked the police officers what was going on , to which one of them replied that they were resuscitating her son . Another ambulance arrived at the scene at TIME , and an electrocardiogram was performed on PERSON , but to no avail . At TIME Dr B.A. pronounced him dead . He attributed the death to a heart attack or stroke .

NORP Immediately after PERSON death , the officers from the LOC police station notified the LOC police communications centre of the incident and secured the area . The duty ORG prosecutor and the duty investigating judge of ORG were also notified of the death . The investigating judge attended the scene and ordered a forensic examination of the body . The medical file and equipment used in his resuscitation were also seized .

On DATE police officers GPE , PERSON and PERSON made records of the methods of restraint they had used on PERSON ( physical force , handcuffs and the police dog ) , which were confirmed by their superior officers to have been lawful .

In DATE after the incident , an officer of the Nova Gorica police took statements from the police officers and medical staff involved in the incident , as well as from the applicant .

The applicant stated that on TIME DATE several police cars and an ambulance drove to the house and an officer asked her whether her son was keeping firearms . She replied that he was not , as far as she was aware . The applicant remained outside during the intervention and could not remember exactly how the events unfolded . She heard screaming , but was afraid to go inside . Sometime later she looked into the hallway and saw her son lying on the floor , surrounded by PERSON and the medical technicians . She asked them what was going on , and they replied that they were resuscitating her son . She noticed that he had vomited .

GPE and PERSON , police officers , stated that upon entering the house , PERSON , who appeared to be talking on the telephone , told the medical technicians that he would not go with them , and GPE and PERSON then warned him that they would use force if necessary . PERSON also tried to convince him to go with them without success and he then instructed the officers to handcuff him . PERSON and PERSON took him by the arms to lead him to the ambulance but he resisted strongly . Dog handler PERSON attempted to calm him down by ordering the police dog to jump at him but Mr Štefančič did not react to the dog ’s attack . The officers struggled to wrestle him to the ground and eventually succeeded in pushing him to the ground on his back ; they then turned him onto his stomach , but he continued to resist forcefully . Dog handler PERSON then used the so - called “ rear chokehold ” technique on him , and together they managed to turn him onto his side . CARDINAL of the medical technicians then administered the first dose of medication to him , whereupon he was again turned onto his stomach and handcuffed with his hands behind his back . The second dose of medication was then administered to him and he calmed down .

After PERSON received the second dose of medication , GPE noticed a brown palm - sized pool of liquid under his head . Somebody mentioned that it was vomit and PERSON then asked if that was right . Dr GPE was on the telephone arranging for PERSON transport to the psychiatric hospital but upon hearing PERSON ’s question checked PERSON and said that the vomiting was due to exertion . PERSON confirmed that PERSON initially said that PERSON was okay and vomited from exertion but added that the doctor did not check PERSON pupils or pulse . Then CARDINAL of the medical technicians looked at Mr Štefančič again and checked his pulse . He called out to the doctor , saying that something was not right as he was breathing irregularly . Officer PERSON then attempted to unlock the handcuffs , and managed to get the CARDINAL on his right hand off before the key broke . The medical staff started to resuscitate him . The whole incident , from the beginning of the police intervention until the beginning of the resuscitation procedure , only lasted TIME , five at the most .

PERSON , a police dog handler , confirmed that he had first joined the intervention by ordering the police dog , which was muzzled , to jump at Mr Štefančič , who , however , made no attempt to shake the dog off or to withdraw from the attack . Therefore PERSON took the dog back to his car and then returned to the house , where officers PERSON and PERSON were not able to turn Mr Štefančič onto his stomach . PERSON helped them by holding him in a rear chokehold and together they managed to turn him onto his stomach and handcuff him . As this was going on , one of the medical technicians injected medication into his buttocks . PERSON also confirmed his NORP accounts as to how the resuscitation of PERSON proceeded after it was discovered that he had vomited .

I.P. , a medical technician , stated that on his arrival , he first asked the applicant a few questions and then entered her house with his colleague PERSON According to both medical technicians , PERSON pretended to be speaking on the telephone . ORG explained to him that he was being taken to the psychiatric hospital to see a psychiatrist . PERSON refused to go and PERSON ordered him to be handcuffed . As regards the events that ensued concerning the use of force by the police officers , ORG ’s statement matched the statements of police officers GPE , PERSON and PERSON ( see paragraphs CARDINAL above ) , while PERSON did not pay much attention to the police operation , as he was preparing a syringe of GPE .

As soon as the police officers managed to wrestle Mr Štefančič to the ground and turn him onto his side , PERSON injected him with GPE . PERSON added that because Mr Štefančič forcefully resisted , he could not administer the full dose of medication to him . He then left the house . While the police officers turned Mr Štefančič onto his stomach , ORG administered the second injection into his buttocks and he calmed down . ORG then noticed that he was not breathing or was struggling to breathe . As far as he could remember , he called out that PERSON was not breathing . PERSON approached him and saw him take a breath , concluding that he was breathing . PERSON , standing outside , stated that he had not seen when and how PERSON had started to vomit , but heard the exchange between his colleague and PERSON The doctor then left the house and started to arrange PERSON transport to the hospital . GPE checked PERSON again and exclaimed that he was not breathing . Together with the police officers they turned PERSON Štefančič onto his back and GPE noticed that he was cyanotic . He also noticed traces of vomit on PERSON face , so he first protected his airways . The police officers had by then removed the handcuffs from him . His colleague PERSON , who confirmed that PERSON looked grey and had traces of vomit on his face , fetched the resuscitation kit from the ambulance . Together with PERSON they had intubated him ; however , even at the beginning of resuscitation , his pupils were dilated , which was also a bad sign . ORG also stated that the whole incident , from the use of physical force on Mr Štefančič until the beginning of the resuscitation procedure , only lasted TIME , five at the most . ORG ’s account was confirmed in substance by traffic officer PERSON , who together with his colleague PERSON guarded the back entrance to the applicant ’s house and thus only heard part of the incident .

Medical technician PERSON expressed the view that the police officers might have used excessive force in dealing with PERSON . He added that though Mr Štefančič had refused to go to the psychiatric hospital , he had not been particularly aggressive , and above all , had not physically attacked anyone .

Dr B.A. , a general practitioner , stated that PERSON psychiatrist expected that he might behave aggressively so he received instructions to give him an injection of CARDINAL ampoules of GPE and CARDINAL ampoule of ORG . Although in the beginning of the intervention Mr Štefančič appeared agitated , but not aggressive , he started to resist forcefully when the police officers attempted to handcuff him .

According to PERSON , after PERSON was handcuffed and calmed down , he came out of the applicant ’s house and started to arrange his transport . CARDINAL of the police officers then called out to him that something was not right , that Mr Štefančič had vomited and was having trouble breathing . He was immediately turned onto his back . Dr GPE noticed that Mr Štefančič had turned blue in the face and that he was wheezing . The medical team then started the resuscitation procedure , massaging his heart and intubating him , as well as administering QUANTITY mg of adrenaline and QUANTITY of atropine to him . However , as they did not have an electrocardiogram monitor or a defibrillator , another ambulance was called . By the time the second ambulance arrived at TIME , they could only establish that Mr Štefančič had died .

On DATE a criminal investigations officer of the Nova Gorica police obtained an oral preliminary report from the forensic pathologist who had performed the autopsy of Mr Štefančič . According to him , the deceased had most likely died of asphyxiation from inhaling gastric contents ( choking on his own vomit ) . With regard to the question of potential liability for Mr Štefančič ’s death , he took the view that the asphyxiation occurred during the police intervention , and that the presence of a doctor could not have altered the course of events . He added that the doctor could only be accused of negligence if the death had occurred during the resuscitation , which in his opinion had not been the case .

On DATE the head of the Nova Gorica police criminal investigations unit submitted a report of the incident to ORG . Based on a statement provided by the forensic pathologist who conducted the forensic examination , the report stated asphyxiation from inhaling gastric contents as the cause of PERSON death . As to the events leading to the death , the police report summarised the statements given by the intervention team and stated that PERSON had resisted the police officers who had tried to take him to the psychiatric hospital , whereupon physical force had been used on him . After PERSON Štefančič had been restrained and had calmed down , the police officers and medical technicians had noticed that he had vomited . After Dr B.A. had initially assessed that this could be attributed to exertion , he had been found to have an irregular heartbeat and the medical team had tried to resuscitate him , but to no avail . As regards the question of potential liability for Mr Štefančič ’s death , the police report followed the forensic pathologist ’s opinion that he had died during the police intervention and that his death could not have been prevented by any medical assistance . The report concluded by saying that no facts had been established giving rise to a suspicion that a criminal offence had been committed in connection with the death of Mr Štefančič which warranted criminal prosecution .

On DATE the completed forensic report was submitted to the investigating judge of ORG , confirming asphyxiation from inhaling gastric contents as the immediate cause of PERSON death . In addition to the trauma consistent with the cause of death , the examination revealed a number of blunt injuries to various parts of his body .

These included contusions on the outer edge of the shoulder blade , the left of the back and the back of the right thigh , swelling on the right of the hairline and the squamous part of the temporal bone , contusions on the inside of the upper right arm and left forearm and on the front of the left thigh . Several haematomas were recorded around the left shoulder blade , on the outer edge of the right shoulder blade , on the right of the thorax and on the scalp , as well as a pulmonary oedema , an oblique fracture of the fifth rib , bruising around the lumbar spine , and brain swelling .

According to the report , these injuries had either been caused by Mr Štefančič ’s body being struck by an object , by part of his body being pressed against something , by him falling , or by his body being pressed between CARDINAL hard surfaces . As regards the injuries to the back of his body , hairline and front left thigh , the forensic pathologist concluded that they had most likely occurred by him falling or falling after being struck , and that the bruises were caused by the body being pulled to the ground .

The toxicology report revealed a low concentration of haloperidol ( an antipsychotic drug with strong calming effects ) in PERSON blood . The forensic report concluded that the substance had been consumed either as a prescription medicine or administered during the intervention in order to calm him down , but could not be linked to his death or identified as the cause of his vomiting .

No particularities or disease - related changes had been found in Mr Štefančič ’s system which could have directly contributed to his death .

With regard to enquiries made by the investigating judge as to whether PERSON death could have been prevented by prompt and adequate medical assistance , the forensic report stated :

“ Disregarding the particular circumstances surrounding the incident , this question could be answered in the affirmative ; however , one can not neglect the exceptional circumstances in which the incident occurred .

Prompt and adequate medical assistance could have saved the life of [ Mr Štefančič ] , even in the event that no ambulance with resuscitation equipment was immediately available .

It is likely that [ Mr Štefančič ] was thrown or pushed to the ground where , prior to being handcuffed , his body was pushed down by applying body weight or some other pressure . [ Being struck or pushed in ] the stomach most likely induced the vomiting . In so far as the medical staff or the officers assisting them in the involuntary confinement had noticed in due course that [ Mr Štefančič ] began to vomit , they could have prevented him from inhaling gastric contents either by lifting his body into a vertical position or by turning him onto his side and mechanically clearing his oral cavity by using their fingers or an aspirator ( if an aspirator was at the disposal of the medical staff ) . However , it was not possible to apply any of these measures to an aggressive patient resisting hospitalisation ; it is only possible to apply such measures after the patient has calmed down or lost consciousness as a result of disruption in the exchange of gases following the aspiration of gastric contents . Having regard to the agitation and aggressiveness of the patient , as well as the circumstances of the incident , such measures almost certainly could not have been applied .

The deceased only lost consciousness when his breathing was disrupted by inhaling massive amounts of gastric contents . Only then was it possible to apply more aggressive medical intervention ( mechanical clearing of the oral cavity , suction of gastric contents from the oral cavity and respiratory tract , removal of potentially larger foreign objects and insertion of a tube with a balloon to prevent continuing aspiration of gastric contents , ventilation of the patient ) , which could not be performed on a conscious person , in particular on an aggressive person , due to the unpleasant feelings such an intervention induces . In the present case , the aspiration of gastric contents was particularly massive and aggressive , which is indicated by the pieces of food found by the histological analysis to be present even in the alveoli , the final branching of the respiratory system .

In the present case it was not possible , once the deceased lost consciousness , to apply those methods and to suck the gastric contents from the respiratory passages and alveoli ; considering the quantity and force of the aspiration of gastric contents , medical assistance probably would not have saved the life of [ Mr Štefančič ] . ”

On DATE the investigating judge of ORG sent the statements of the persons involved in the incident , a record of the examination of the scene , the order for a forensic examination of PERSON body and the forensic report to ORG .

On DATE the Head of ORG , ORG , informed ORG that the conditions had not been met for the institution of criminal proceedings , and that the case file had been archived .

On DATE the applicant , through her representative , lodged a criminal complaint against police officers PERSON , GPE and PERSON , whereby she stated that her son had been strangled and had died as a result of an unnecessary and unprofessional police intervention . The applicant also stated that the forensic report was misleading and there were doubts as to its accuracy . In addition , an anonymous criminal complaint was lodged against ORG , the head of the Nova Gorica uniformed police unit . The complainant alleged that ORG had abused his position by giving a statement at a press conference in which he had covered up the actual cause of Mr Štefančič ’s death in order to prevent criminal prosecution of Dr B.A.

After having reviewed ORG Office ’s case file , on DATE a ORG prosecutor from ORG ( GPE državnih tožilcev za posebne zadeve – hereinafter “ the Special Matters Group ” ) , which had exclusive jurisdiction over the prosecution of criminal offences committed by police officers , rejected both criminal complaints on the basis of the police and forensic reports and the media reports from the press conference on Mr Štefančič ’s death .

NORP The decision to reject the criminal complaints summarised the information included in the police and forensic reports , as well as the statements given to the police by PERSON and medical technicians PERSON and GPE

The ORG prosecutor , relying on the forensic report , concluded that PERSON death could have been prevented if someone had been noticed in time that he had started to vomit . However , in the case in question PERSON had been aggressive and resisted hospitalisation , and no assistance could be provided until he had calmed down . Therefore , in the ORG prosecutor ’s opinion there was no is reasonable suspicion that the actions of PERSON , GPE and PERSON , the QUANTITY police officers who had restrained PERSON , constituted a criminal offence . Moreover , as regards the anonymous criminal complaint , the ORG prosecutor established that , according to the reports in the media , the head of the PERSON uniformed police unit had stated neither that Mr Štefančič had died as a result of being administered sedatives , nor that the medical team had immediately begun resuscitation after his condition had deteriorated . Therefore , no reasonable suspicion existed that ORG had committed a criminal offence liable to prosecution ex officio .

No appeal was available to the applicant against the decision to reject her criminal complaint . However , she could take over the conduct of criminal proceedings as a “ subsidiary prosecutor ” .