Remainder inadmissible;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) (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 - Length of pre-trial detention);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested during the dispersal of a political rally at FAC in GPE . He was found guilty of failure to obey lawful police orders , an offence under LAW , and was subsequently charged with participation in mass disorder and with having committed violent acts against police officers , criminal offences provided for by Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW . He was detained and tried on these charges and was convicted to a prison term of DATE and DATE .

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

On DATE CARDINAL individuals ( Mr I. GPE , Mr S. NORP , Ms Y. PERSON , PERSON Mityushkina and Mr S. Udaltsov ) submitted notice of a public demonstration to the mayor of GPE . The aim of the demonstration was “ to protest against abuses and falsifications in the course of the elections to ORG and of the President of GPE , and to demand fair elections , respect for human rights , the rule of law and the international obligations of the GPE ” .

On DATE ORG approved the route from FAC , down FAC and FAC , followed by a meeting at FAC , noting that the organisers had provided a detailed plan of the proposed events . The march was to begin at TIME , and the meeting had to finish by TIME The number of participants was indicated as CARDINAL .

On CARDINAL DATE the First Deputy Head of ORG held a working meeting with the organisers of the demonstration at FAC , at which they discussed the security issues . The organisers and the authorities agreed that the assembly layout and the security arrangements would be identical to the previous public event organised by the same group of opposition activists on DATE . On that occasion , the venue of the meeting had included the park at FAC and the GPE embankment .

On CARDINAL DATE ORG issued a warning to CARDINAL of the organisers , Mr NORP and Mr GPE , against exceeding the notified number of participants and against erecting camping tents at the meeting venue , an intention allegedly expressed by the organisers at the working meeting .

On DATE ORG of the ORG published on its website the official information about the forthcoming demonstration on DATE , including a map . The map indicated the route of the march , the traffic restrictions and an access plan to FAC ; it delineated the area allotted to the meeting , which included the park at FAC . Access to the meeting was marked through the park .

On DATE the Police Chief of ORG of the ORG adopted a plan for safeguarding public order in GPE on DATE ( the “ security plan ” ) . In view of the forthcoming authorised demonstration at FAC and anticipated attempts by other opposition groups to hold unauthorised public gatherings , it provided for security measures in GPE city centre and set up operational headquarters to implement them . The police units assigned to police the march and the meeting counted CARDINAL riot police officers , of which CARDINAL were on duty at FAC . They were instructed , in particular , to search the demonstrators to prevent them from taking tents to the site of the meeting and to obstruct access to PERSON , diverting the marchers to GPE embankment , the place of the meeting . The adjacent park at FAC had to be cordoned off .

At TIME on DATE the organisers were allowed access to the meeting venue to set up their stage and sound equipment . The police searched the vehicles delivering the equipment and seized CARDINAL tents found amid the gear . They arrested several people for bringing the tents .

At the beginning of the march , the organisers signed an undertaking to ensure public order during the demonstration and gave assurances to the police that the limits on the place and time allocated for the assembly would be respected and that no tents would be placed on FAC .

NORP The march began at TIME at FAC . It went down FAC peacefully and without disruption . The turnout exceeded expectations , but there is no consensus as to the exact numbers . The official estimate was that there were CARDINAL participants , whereas the organisers considered that there were CARDINAL . The media reported different numbers , some significantly exceeding the above estimates .

At TIME the march approached FAC . The leaders found that the layout of the meeting and the placement of the police cordon did not correspond to what they had anticipated . Unlike on DATE , the park at FAC was excluded from the meeting venue , which was limited to GPE embankment .

Faced with the police cordon and unable to access the park , the leaders of the march – Mr PERSON , PERSON , PERSON and PERSON DATE stopped and demanded that the police open access to the park . The cordon officers did not enter into any discussion with the protest leaders and no senior officer was delegated to negotiate . After TIME of attempting to engage with the cordon officers , at TIME the CARDINAL leaders announced that they were going on a “ sit - down strike ” and sat on the ground . The people behind them stopped , although some people continued to go past them towards the stage .

Between TIME and TIME CARDINAL State PERSON deputies tried to negotiate the enlargement of the restricted area by moving the police cordon behind the park along the lines expected by the organisers . At the same time the Ombudsman of GPE , at the request of police , attempted to persuade the leaders of the sit - in to resume the procession and to head towards the meeting venue at GPE embankment where the stage had been set up . During that time no senior police officer or municipal official came to the site of the sit - down protest , and there was no direct communication between the authorities and the leaders of the sit - in .

At TIME the crowd around the sit - down protest built up , which caused some congestion , and the leaders abandoned the protest and headed towards the stage , followed by the crowd .

At TIME the media reported that the police authorities were regarding the strike as a provocation of mass disorder and were considering prosecuting those responsible for it .

At the same time a commotion near the police cordon occurred at the place vacated by the sit - down protest , and the police cordon was broken in several places . A crowd of CARDINAL people spilled over into the empty space beyond the cordon . Within TIME the police restored the cordon , which was reinforced by an additional riot police force . Those who found themselves outside the cordon wandered around , uncertain what to do next . Several people were apprehended , others were pushed back inside the cordon , and some continued to loiter outside or walked towards the park . The police cordon began to push the crowd into the restricted area and advanced by QUANTITY , pressing it inwards .

At TIME , on police instructions , announced from the stage that the meeting was now over , but apparently her message was not heard by most of the demonstrators or the media reporters broadcasting from the spot . The live television footage provided by the parties contained no mention of her announcement .

At the same time a Molotov cocktail was launched from the crowd at the corner of ORG bridge over the restored police cordon . It landed outside the cordon and a passer - by ’s trousers caught fire . It was promptly extinguished by the police .

At TIME at the same corner of PERSON bridge the riot police began breaking into the demonstration to split up the crowd . Running in tight formations , they pushed the crowd apart , arrested some people , confronted others , and formed new cordons to isolate sections of the crowd . Some protesters held up metal barriers and aligned them so as to resist the police , threw various objects at the police , shouted and chanted “ Shame ! ” and other slogans , and whenever the police apprehended someone from among the protesters they attempted to pull them back . The police applied combat techniques and used truncheons .

At TIME Mr Udaltsov climbed onto the stage at the opposite end of the square to address the meeting . At this point , he was arrested . Mr PERSON attempted to go up onto the stage , but he was also arrested , and so was Mr PERSON , TIME .

Meanwhile , at ORG the police continued dividing the crowd and began pushing some sections away from the venue . Through loudspeakers they asked the participants to leave for the metro station . The dispersal continued for TIME until the venue was fully cleared of all protesters .

On DATE ORG of GPE opened a criminal investigation into the suspected mass disorder and violent acts against the police ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) .

On DATE an investigation was also launched into the criminal offence of organising mass disorder ( Article CARDINAL § CARDINAL of LAW ) . The CARDINAL criminal cases were joined on DATE .

On DATE the first criminal case against CARDINAL individuals suspected of participation in mass disorder , including the applicant , was transferred to LOC of GPE for the determination of criminal charges ( the first “ GPE ” case ) .

On DATE the ORG of GPE pronounced a judgment in the first PERSON case . It found CARDINAL individuals , including the applicant , guilty of participation in mass disorder and of violent acts against police officers during the public assembly on DATE . They received prison sentences of CARDINAL ; CARDINAL of them was released on parole . The applicant was sentenced to DATE and CARDINAL months’ imprisonment . CARDINAL co - defendants had previously been pardoned under LAW and a fourth had his case disjoined from the main proceedings . This judgment was upheld by ORG on DATE . It reduced the applicant ’s prison sentence to DATE .

On DATE ORG found PERSON and PERSON ORG guilty of organising mass disorder on DATE and sentenced them to CARDINAL half years’ imprisonment . On DATE ORG of GPE upheld the judgment of DATE , with amendments .

On DATE the ORG of GPE examined another “ GPE ” case and found CARDINAL persons guilty of participating in the mass disorder and of committing violent acts against police officers during the demonstration on DATE . They received prison sentences of CARDINAL ; CARDINAL of them was released on parole . This judgment was upheld by ORG on DATE .

At the time of arrest the applicant was a student at the political science faculty of ORG and lived with his wife and their child born in DATE . On DATE he arrived at FAC to take part in the demonstration and , according to him , he did not take part in any disorder or clashes with the police , although he was in the area where clashes occurred . At CARDINAL point during the dispersal of the demonstration he picked up from the ground a small round yellow object and threw it over the heads of the protesters in the direction of the police . He was arrested shortly after that . There is no information as to whether he was detained on DATE .

On CARDINAL DATE the applicant was charged with non - compliance with a lawful order by a police officer on DATE . He was found guilty of the offence provided by LAW and was sentenced to CARDINAL detention .

Until DATE the applicant continued to study at the university while living with his family at his usual address . On DATE he was detained on suspicion of having participated in mass disorders on DATE .

On DATE ORG examined and granted the request to detain the applicant pending criminal investigation . It reasoned as follows :

“ In assessing the circumstances under investigation , [ the court takes account of ] the submitted materials and the indicated information in their integrity , as well as the personality of [ the applicant ] , who is suspected of having committed criminal offences CARDINAL of which is characterised as grave and the other of medium gravity , punishable by DATE of deprivation of liberty , and therefore giving sufficient reasons to believe that the applicant is likely to abscond , to continue his criminal activity , to destroy evidence , or to otherwise obstruct the investigation of the criminal case . ”

The court dismissed the applicant ’s request for an alternative preventive measure , including bail of MONEY ( RUB ) , and personal guarantees of several state officials and found that his release was not required on health grounds . It ordered the applicant ’s detention until DATE . On DATE ORG upheld the detention order .

On DATE charges were brought against the applicant under Articles CARDINAL § CARDINAL ( participation in mass disorder ) and CARDINAL § CARDINAL ( violence against a public official ) of LAW . He was accused , in particular , of shouting slogans and throwing an unidentified small round yellow object that had hit the police officer ’s shoulder .

NORP On DATE ORG examined the investigator ’s request to extend the term of the applicant ’s detention by DATE . The applicant asked for another preventive measure pending trial . He offered bail of RUB MONEY or the personal guarantees of a ORG deputy , CARDINAL GPE municipal deputies and CARDINAL academic . His request for an alternative preventive measure was supported by petitions signed by CARDINAL GPE municipal deputies and CARDINAL personal references from his place of residence and the university . The applicant also made a plea for release on health grounds , having provided medical certificates confirming that he was suffering from a high - degree myopia and asthma . On DATE the court found that the circumstances that had justified the detention order had not changed and , referring to the gravity of the charges and the complexity of the investigation , extended the applicant ’s detention until DATE . This extension order was upheld by ORG on DATE .

On DATE ORG granted another extension of the applicant ’s detention , until DATE , essentially on the same grounds and noting that the circumstances that had justified the detention order had not changed . This extension order was upheld by ORG on DATE .

On DATE the charges against the applicant were updated with a statement that the applicant ’s and others’ acts had cumulatively caused the police officer a haematoma on the head , leg and shoulder . The classification of the offences remained unchanged .

On DATE ORG granted a new extension of the applicant ’s detention , until DATE , essentially on the same grounds as before and noting that the circumstances that had justified the detention order had not changed . On DATE ORG upheld this extension order .

On DATE ORG examined a fresh request for the extension of the applicant ’s detention and granted it until DATE . The decision read as follows :

“ The materials presented [ by the investigator ] reveal that the grounds for choosing the preventive measure in respect of [ the applicant ] were not only the gravity of the charges but also the information about the personality of [ the applicant ] who could abscond from the investigation and trial , threaten witnesses , or otherwise obstruct the proceedings in the case , if released .

The aforementioned grounds ... ...

This term is reasonable , [ it ] is justified by the objective circumstances , it is not in conflict with the term of the pre - trial investigation , also extended on the same grounds ...

In accordance with ORG [ case - law ] , the proportionality of the preventive measure to the [ gravity of the ] charges imputed to [ the applicant ] show that in this case the public interests , in particular those related to the criminal investigation , override the importance of the principle of respect of individual liberty . ”

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

On CARDINAL DATE ORG upheld the extension order of DATE .

On DATE the latter court granted another extension of the applicant ’s detention until DATE . This decision concerned CARDINAL defendants and read , in so far as relevant , as follows :

“ ... the court concludes that the preventive measure in respect of [ all defendants ] ... is to remain unchanged because the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ...

... [ the defendants ] are accused of [ grave crimes punishable by prison sentences ] ...

Regard being had to all the available information about the personality of [ the defendants ] and the nature of the criminal offences imputed to each of them , the court still has sufficient grounds to believe that the said defendants , if at liberty , may flee the trial or otherwise obstruct the course of justice , [ motivated by ] the gravity of the charges .

... no other measures of restraint would secure the aims and goals of the judicial proceedings ...

The court takes into account the arguments of Mr PERSON , Mr GPE and PERSON PERSON and their counsel concerning the health problems which occurred in custody , but notes that no documentary evidence that these defendants have diseases threatening their life or health and incompatible with the detention in custody have been provided . ”

On DATE ORG upheld the extension order of DATE .

DATE . On DATE , during the court hearing the applicant made an application for release which was dismissed by ORG on DATE .

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

On DATE the applicant applied for release on the grounds of his child ’s medical condition , as well as the deterioration of the applicant ’s own health . This application was supported by several prominent public personages , including university professors , the dean of the faculty of political science and a State PERSON deputy , all of whom provided personal guarantees . On DATE ORG rejected this application .

On DATE ORG refused the ORG ’s request of CARDINAL DATE .

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 . It held , in particular , as follows :

“ [ The defendants ] are charged with a criminal offence provided for by LAW , which belongs to the category of grave crimes punishable by a prison sentence of DATE . Furthermore , [ some defendants ] are charged with a criminal offence provided for by LAW , also punishable by a prison sentence of DATE .

Despite the defendants being registered as having permanent addresses in GPE , the analysis of the overall information about [ the GPE ] personalities , and the nature of the offences imputable to them , give the court sufficient grounds to consider that the defendants , if the preventive measure is changed to another one not involving deprivation of liberty , may flee the trial or otherwise obstruct the course of justice , [ motivated by ] the gravity of the charges ... the reasons taken into account when these measures were chosen have not ceased to exist and have not changed ... ”

The applicant has high - degree myopia . According to a DATE medical certificate , his eyesight in the right eye was CARDINAL dioptres , and on the left eye CARDINAL dioptres .

From DATE to CARDINAL DATE the applicant was detained in remand prison GPE , and from DATE he was held in GPE . Upon his arrival at the remand prisons the applicant was subjected to medical checks which did not reveal any health issues .

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

The parties provided the following accounts of the conditions in these cells . According to the applicant , the cells were inadequately lit and ventilated , excessively hot in DATE and cold in DATE , all with a lavatory pan separated from the living space by a chin - high plastic partition providing insufficient privacy . The applicant alleged that he had been constantly exposed to cigarette smoke , and although the window in the cell could be opened it gave onto a courtyard used for incinerating rubbish , letting in fumes . Therefore the cell constantly lacked fresh air , and the forced ventilation could not compensate for it . Outdoor exercise was limited to TIME per day . The applicant also claimed that the window was too high to give sufficient light for reading or working with documents . Finally , he alleged that access to drinking water was conditional on the purchase of an electric kettle .

According to the Government , the artificial light in the cells was maintained at QUANTITY round the clock except at night , from TIME to CARDINAL a.m. , when it was QUANTITY ; they provided measurement tables for this detention centre created in DATE , which stated that the brightness in the cells was CARDINAL and CARDINAL lux , the temperature in the cells between CARDINALoC and CARDINALoC , and the humidity PERCENT . They indicated that in IZCARDINAL/CARDINAL the detainees had access to a gym upon their written request .

On DATE the applicant applied in writing to the head of the facility for a medical examination . He alleged that he had been suffering from asthma and high - degree myopia . On DATE he made a similar application to the investigator of the criminal case .

On DATE the investigator granted the applicant ’s request for a medical examination . This decision read as follows :

“ ... the performance of a medical examination ... falls outside the competence of the investigating bodies ...

However , given that the state of health of the accused Mr GPE is of importance to the present criminal case , the investigating bodies have sent the relevant request to the administration of [ GPE ] stating the need to carry out , in the shortest possible time , the medical examination of the accused Mr Belousov , the results of which are to be submitted to the investigating bodies for inclusion in the criminal case file . ”

It appears that the medical examination was not carried out .

On DATE and CARDINAL DATE the public commission for the monitoring of detention facilities visited GPE , and , according to the Government , the applicant made no complaints about the conditions of detention or the lack of medical assistance on either occasion .

On DATE the applicant had a hypertension crisis during a court hearing . An ambulance was called and provided him with the necessary assistance .

Following his complaints of headaches , on DATE the applicant was placed in the medical ward of ORG . Upon admission , the applicant was diagnosed with hypertension . He remained in the medical ward for a period of DATE for his blood pressure to be monitored .

The applicant alleged that the conditions in GPE were poor , in particular on account of the lack of outdoor exercise and inadequate sanitary arrangements . He specified that the lavatory pan was separated from the living space by a chest - high partition providing insufficient privacy . According to the applicant ’s letter of DATE , he had not been able to have a shower since his transfer to ORG .

According to the Government , the conditions in the cells of GPE were as follows : the toilet was separated by a solid partition from the rest of the cell and ensured the necessary privacy ; the state of the sanitary facilities was satisfactory ; the cells were treated for disinfection and pest - control once DATE and whenever necessary ; the applicant was entitled to TIME outdoor exercise per day ; the cell was cleaned and the bedding changed once a week ; the cells were equipped with forced ventilation and could be aired through a hinged window pane . Artificial light was provided at QUANTITY by day and QUANTITY by night . The glazed windows let in sufficient daylight .

DATE . Pursuant to the request of the applicant ’s counsel filed on an unidentified date , on DATE the applicant was examined by an ophthalmologist and was diagnosed with high - degree myopia ( CARDINAL dioptres on both eyes ) .

During the hearing of the applicants’ criminal case , which began in DATE , the applicant and his co - defendants were regularly transferred from the remand prisons to the court - house and back . All the defendants attended the hearings on DATE every week . According to the Government , the applicant ’s trial involved CARDINAL court hearings , and it appears that the applicant was transferred to attend all of them . A typical schedule on a hearing day is represented by the following DATE extract submitted by the applicant :

According to the applicant , this schedule left him insufficient time for sleep between the court hearings , gave him no time to prepare for DATE hearing , and deprived him of hot meals .

He further alleged that the conditions in the prison assembly rooms and in the transfer van ( « автозак ORG ) had been appalling , in particular owing to overcrowding . He claimed that he was cramped together with other detainees and their belongings in a small tin cabin without windows , ventilated only through a roof hatch . The benches were spaced at QUANTITY , and the detainees had to get in and out by walking on others . Smoking was allowed , which caused further discomfort , especially to non - smokers . Occasionally , they were transferred in vans divided into tight individual metal cubicles . In both types of vans the cabin overheated in DATE and froze in cold weather . The transfer lasted for TIME depending on the number of pick - up points and traffic conditions . There was no opportunity to use a toilet during the transfer , even at other pick - up points where the van could wait for TIME .

At ORG before and after the hearings the applicant and his co - defendants were held in convoy cells . According to the applicant , these were poorly lit and often overcrowded , and access to a toilet was subject to the availability of a convoy officer . Some of the convoy cells on the ground floor of the court - house were as small QUANTITY , and each could be shared by CARDINAL detainees . The applicants’ account was supported by witness statements submitted by his co - defendant PERSON PERSON and those given by his CARDINAL fellow inmates , unrelated to the present case ; their detailed accounts of the prison transfers in the relevant period , as well as of the convoy cells at ORG , were consistent with the applicant ’s submissions .

According to the ORG , the morning transfer to the courthouse did not exceed TIME , and the transfer back lasted for TIME because of the evening traffic . Also , the applicant ’s schedule allowed for TIME of uninterrupted sleep . They indicated that the wake - up time at the detention centres was TIME , the pickup would take place at TIME , and the drop - off after the hearing at TIME ; assembly before and after the transfer did not exceed TIME . All the detainees were provided with packed meals for DATE out at the court - house , and they were given hot water at lunchtime . They further indicated that the vans used for the transfer were DATE models of KAMAZCARDINALAZ , KAMAZOTSCARDINALAZ ( both designed for CARDINAL detainees ) , PERSON ( designed for CARDINAL detainees ) , and PERSON ( designed for CARDINAL detainees ) . As regards the convoy cells at ORG , they submitted that the applicant and his co - defendants were detained in convoy area of the court - house , which included CARDINAL cells measuring QUANTITY each and toilets , including a wheelchair - accessible one , which the detainees could use on demand , accompanied by the convoy . They submitted that the cells had adequate light and ventilation , and that they were furnished with tables and benches . During the intervals in the hearing the defendants could use an electric kettle to boil water .

On DATE the court proceedings began in hearing room no . CARDINAL of ORG . The latter court lent its LOC to ORG so as to accommodate all the participants in the proceedings , the public and the press . In that hearing room CARDINAL defendants were held in a glass cabin measuring QUANTITY ( height ) . The Government submitted that the glass cabin was a permanent courtroom installation consisting of a steel frame and sheets of bulletproof glass , with a partition inside , a steel mesh ceiling and a secure door ; the cabin was equipped with benches . The walls of the cabin had slots allowing documents to be passed between the defendants and their counsel ; ventilation outlets were at floor level , and near the dock was an air conditioner . The cabin was equipped with microphones allowing for consultations with counsel and facilitating the defendants’ participation in the proceedings . The Government specified that convoy officer guarded the cabin on both sides , supervised the defendants and intercepted any attempts of “ contact with outsiders ” , but the defendants could communicate with their counsel with the court ’s permission .

The applicant submitted that the glass cabin lacked space and ventilation and that it was virtually soundproof , hampering the defendants’ participation in the proceedings and their communication with counsel . The benches had no backrests , and the lack of space made it impossible to have documents ; it was impossible to consult counsel or the case file during the hearing . The applicant also submitted that the video evidence examined at the hearing could not be seen by him from the cabin because of the distance between the cabin and the screen and his poor eyesight .

DATE . In DATE the proceedings moved to hearing room no . CARDINAL of ORG . This hearing room was equipped with CARDINAL glass cabins similar to the CARDINAL in hearing room no . CARDINAL , except that there were no slots in them . Each cabin measured QUANTITY ( height ) . From DATE one of the defendants was no longer placed in the glass cabin owing to a change in the measure of restraint for him . The CARDINAL remaining defendants were divided between the CARDINAL cabins .

From DATE to DATE the hearings continued on the premises of ORG of GPE ( hearing room no . CARDINAL ) , and in DATE and DATE at FAC ( hearing room no . CARDINAL ) . These hearing rooms were equipped with metal cages in which the CARDINAL defendants ( from DATE ) , including the applicant , sat during the hearings . According to the photographs submitted by the applicants , the dimensions of the cages were similar to the glass cabins described above and , likewise , they were not equipped with any furniture other than benches .

On DATE the ORG of GPE began a preliminary hearing of the criminal case against CARDINAL participants in the public assembly at FAC charged with participation in mass disorders and violent acts against police officers . On DATE the same court began the hearing on the merits .

On DATE police officer PERSON , the victim of the applicant ’s assault , was examined as a witness . He testified that the applicant had thrown an unidentified yellow object which had hit him on the shoulder and caused him pain . The applicant asked for PERSON ’s statements made during the investigation , which contained no mention of the yellow object or the applicant , to be read out in court . The applicant pointed out that no identification parade had been held during the investigation to enable PERSON to identify the person who had assaulted him ; instead , the applicant and PERSON had been questioned in confrontation , whereby the applicant had been the only person introduced to F. as the likely perpetrator . The court refused the applicant ’s request for PERSON ’s statements to be read out .

On DATE the ORG of GPE pronounced judgment . It found , in particular , as follows :

“ TIME on DATE ... at FAC ... unidentified persons ... called those present [ at the venue ] to move outside the agreed meeting venue , to defy the lawful orders of the police ... , to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [ and ] the destruction of property .

On DATE at TIME at the latest [ the defendants ] acquired the criminal intent to participate in mass disorder and to use violence ...

Thus , in furtherance of this criminal intent , at an unidentified time and place Mr ORG acquired an unidentified solid yellow round object with the intention of using it to cause violence against officials ...

... together with other participants ... Mr Belousov repeatedly chanted antigovernment slogans .

Moreover ... the participants in the mass disorder threw chunks of tarmac , stones , sticks and other objects at the police ... which hit them on various body parts , and [ the defendants ] ... [ who ] participated in the mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force not endangering life or health of those [ officials ] ...

Mr GPE used violence not endangering the life or health of [ Mr F. ] ...

DATE and TIME on CARDINAL DATE ... unidentified participants in the mass disorder deliberately administered CARDINAL blows and kicks to [ F. ’s ] head , body and limbs , after which Mr GPE ... deliberately targeting [ F. ] , threw an unidentified solid yellow round object , which hit [ F. ] on the upper right side of the chest , causing him physical pain .

As a result of Mr GPE and other unidentified ORG actions [ F. ] sustained physical pain and injuries in the form of bruising and abrasion of the soft tissues of the parietal region , bruising of the ... left forearm , abrasion on the ... right shin , [ all of ] which , assessed individually or cumulatively , constituted injuries not endangering life or health , and not entailing short - term health impairment or minor durable professional incapacitation ...

Mr GPE ... pleaded not guilty and testified that ... he wanted to see why the meeting was not starting [ and ] went to FAC ... [ he ] saw the riot police cordon ... [ and officers ] arresting some [ participants ] ... [ he ] was looking to leave and went to the middle of FAC and saw a girl who tripped on something and nearly fell . Without looking at it closely he picked it up from the ground ; it felt soft and slimy ... and threw it away without aiming it at anyone ... he joined hands with other protesters chanting “ One for all and all for one ! ” , “ United , we are invincible ! ” . At this moment QUANTITY police officers ran up to him , grabbed him and carried him to the police vehicle ...

Police officer [ F. ] testified that ... after the cordon was restored ... he was heading into the crowd to arrest offenders ... somebody hit him CARDINAL times on the head ... then he felt a blow from a heavy object on his shoulder . From the corner of his eye he saw [ Mr GPE ] take a swing and toss something ... like a billiard ball .

... Mr GPE was filmed at the moment he threw a yellow object at the police ...

The [ defendants’ ] argument that no mass disorder took place is considered by the court unsubstantiated because ... as a result of the premeditated actions of a group of individuals who organised ... obstruction to the ORG march on their way to the intended meeting venue where the stage was , which caused discontent among the protesters towards ... the police ... those who were leading the march and who were able to make an unhindered approach to the meeting venue changed their tactics and called for ... a sit - in , hoping thus to secure a decision to change the placement of the cordon to their advantage and to extend their area beyond what had been agreed ... As a result ... the protesters forced their way through the police cordon ... public order was disrupted ... because of the larger crowd , uncontrollable and incited by organised groups ... conditioned the applicants’ intent to participate in such actions , accompanied by chunks of tarmac and plastic bottles being thrown and violence towards the police otherwise being used . Conscious of their participation in spontaneously erupted disorder and wishing to take part in it , the defendants joined the mass movement ...

... the court takes into account the nature and the degree of [ the applicant ’s ] involvement in the mass disorder ... and considers it possible to give him a sentence below the minimum punishment provided for by LAW . ”

The applicant was sentenced to DATE and CARDINAL months’ imprisonment , calculated on the basis of a DATE prison term under LAW partly concurrent with a DATE prison term under LAW . The applicant ’s pre - trial detention counted towards the prison sentence .

The applicant appealed . He contested the first - instance court ’s finding that mass disorder had taken place , and alleged that there had only been isolated clashes between the protesters and the police , caused by the authorities’ TIME decision to alter the layout of the meeting venue and aggravated by their excessive crowd - control measures . He denied that the object he threw hit anybody ; he alleged a breach of procedure for questioning in confrontation with the victim , police officer PERSON , and complained that the court had refused to have the records of the latter ’s interrogation conducted during the investigation read out . He also complained about the conditions in which he was escorted to the courtroom , the intensity of the hearing schedule , and that he had been placed in a glass cabin during the trial , claiming that it hindered his communication with counsel .

On DATE ORG upheld the first - instance judgment , also reducing his prison sentence to DATE , comprising a DATE - and - DATE term under LAW and a DATE term under LAW , to run partly concurrently .

On DATE the applicant was released after serving his prison term .


MUSTAFIĆ-MUJIĆ AND OTHERS v. THE NETHERLANDS

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

A list of the applicants is appended to this decision . The applicants are all represented by PERSON and PERSON , lawyers practising in GPE .

Ms Mehida ORG is the widow of the late Mr PERSON . PERSON and Mr PERSON are the daughter and son , respectively , of the late Mr PERSON . Mr PERSON is the son of the late Mr PERSON and the brother of the late Mr PERSON .

Mr PERSON , Mr PERSON and Mr PERSON died on or shortly after DATE in what has come to be known as the GPE massacre .

The Socialist GPE ( SFRY ) was made up of CARDINAL GPE , GPE , GPE , GPE , GPE , GPE and GPE . GPE and GPE declared their independence from the SFRY on DATE following referenda held earlier . Thereupon the Presidency of the SFRY ordered the JNA ( ORG Armija/Југословенска народна армија , or ORG ) into action with a view to reasserting the control of the federal government .

Other component GPE of the SFRY followed GPE and GPE in declaring independence . Eventually only GPE and GPE were left to constitute the SFRY ’s successor state , GPE ( FRY ) . Hostilities ensued , largely along ethnic lines , as groups who were ethnic minorities within particular GPE and whose members felt difficulty identifying with the emerging independent states sought to unite territory that they inhabited with that of GPE with which they perceived an ethnic bond .

By its LAW ( DATE ) of DATE , ORG of ORG set up ORG ( UNPROFOR ) intended to be “ an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the NORP crisis ” . Although PERSON ’s mandate was originally for DATE , it was extended ; PERSON ( later renamed ORG , the name UNPROFOR coming to refer only to the operation in GPE ) continued in operation until DATE . Troop - contributing nations included the GPE .

GPE and GPE declared independence on DATE as GPE . Thereupon war broke out , the warring factions being defined largely according to the country ’s pre - existing ethnic divisions . The main belligerent forces were the ORG ( PERSON i ORG , or ORG of GPE , mostly made up of Bosniacs and loyal to the central authorities of GPE ) , the ORG ( PERSON vijeće obrane , or ORG , mostly made up of NORP ) and the ORG ( PERSON Srpske/Војска PERSON , or ORG of ORG , also called ORG , mostly made up of NORP ) .

It would appear that CARDINAL people were killed and CARDINAL people were displaced . It is estimated that CARDINAL people went missing ; in DATE , CARDINAL of them were still so listed .

The conflict came to an end on DATE when ORG for Peace ( “ FAC ” , adopted in GPE , GPE , GPE ) entered into force .

The bulk of the ORG withdrew from GPE in DATE , leaving behind units whose members were nationals of GPE and GPE with their weapons and equipment . These became the backbone of the ORG . In its operations the ORG obtained the assistance of paramilitary units , most of which were composed of NORP but some of which comprised non - NORP including nationals of countries outside the former SFRY .

NORP The municipality of GPE in eastern GPE is constituted of a number of towns and villages , among them PERSON and the town of GPE from which the municipality takes its name . Before the outbreak of the war its population was almost entirely PERSON and NORP , Bosniacs outnumbering NORP by CARDINAL to one . It is now part of ORG .

Being an obstacle to the formation of ORG as a continuous territorial entity as long as it remained in the hands of the central government of GPE , PERSON came under ORG attack already in the course of DATE .

It appears that the central government of GPE refused to countenance any evacuation of GPE ’s civilian population , since that would amount to the acceptance of “ ethnic cleansing ” and facilitate the surrender of territory to the ORG .

On DATE ORG of ORG adopted , by a unanimous vote , a resolution ( LAW ( DATE ) ) demanding that “ all parties and others concerned treat the eastern NORP town of GPE and its surroundings as a safe area which should be free from any armed attack or any other hostile act . ”

By DATE the GPE “ safe area ” was an enclave surrounded by territory held by the ORG . It contained ORG combatants , most of them disarmed , and civilians . The latter numbered in MONEY , mostly Bosniacs ; these included by then , in addition to the local residents , persons displaced from elsewhere in eastern GPE .

There was also an UNPROFOR presence within the enclave , nominally consisting of CARDINAL lightly - armed GPE air - mobile infantry , known as Dutchbat ( from “ NORP ” and “ battalion ” ) . In fact , however , Dutchbat was under - strength by this time , troops returning from leave having been prevented by the ORG from rejoining their unit . In DATE ORG ’s leadership consisted of its commander , Lieutenant Colonel NORP ; its deputy commander , Major PERSON ; and other commissioned and non - commissioned officers including Warrant Officer PERSON who was in charge of personnel matters .

On DATE ORG of the ORG attacked the LOC “ safe area ” in overwhelming force , overrunning the area and taking control despite the presence of Dutchbat .

In TIME of DATE the ORG entered the town of GPE meeting little resistance from either the ORG or UNPROFOR . By this time the civilian population had left the town . A throng of civilians consisting of women , children and mostly elderly men were converging on the Dutchbat compound in the village of GPE . The Dutchbat commander estimated the number of civilians inside the compound at CARDINAL .

At the ORG Commander ’s request , the acting UNPROFOR Commander then issued instructions to Dutchbat , ordering them to enter into negotiations with the ORG to secure an immediate ceasefire . He ordered Dutchbat to concentrate their forces in the PERSON compound and to “ take all reasonable measures to protect refugees and civilians in [ their ] care ” . He added that Dutchbat should “ continue with all possible means to defend [ their ] forces and installation from attack ” . This was “ to include the use of close air support if necessary ” .

That night , as meetings were taking place between the Dutchbat Commander and ORG , a column of PERSON men , possibly numbering CARDINAL , started to move out of the enclave in the direction of GPE .

In TIME DATE a meeting took place between ORG and Lieutenant Colonel NORP . Among other matters discussed , ORG threatened to shell the Dutchbat compound in retaliation if air power was used against the ORG . He also demanded to see all the men between the ages of CARDINAL and DATE because , as he alleged , there were “ criminals ” in the crowd gathered at ORG and he would need to question each of them . It was also arranged that the civilian population would be transported by bus to GPE , the nearest town in the hands of the government of GPE .

In TIME of the same day the ORG entered PERSON in force and the deportation of the civilians began , beginning with those outside the compound . ORG soldiers separated the men ( between the ages of CARDINAL and DATE ) from the women , children and elderly who were allowed to board the buses . Major PERSON instructed civilian representatives to draw up a list of all the men between the ages of DATE and DATE both inside and outside the compound . The resulting list eventually included CARDINAL names . He later explained that his intention had been to forward the information to ORG and other authorities , so as to keep track of the men . He also explained afterwards that he had protested to the ORG about the separation of the men from the others , but had relented upon being told that the men would not be harmed and would simply be questioned as prisoners of war in accordance with LAW .

On DATE Lieutenant Colonel PERSON was instructed by the PERSON command in GPE to ensure that Dutchbat left the enclave together with locally recruited ORG staff . Lieutenant Colonel NORP informed ORG accordingly . Lieutenant Colonel PERSON interpreted these instructions so as to include staff of the non - governmental organisation ORG . Major PERSON drew up a list of the persons concerned , which came to comprise CARDINAL names . It was later learned that the ORG leadership had given Major PERSON the names of persons who were related to its staff members but who were not actually employed by that body for inclusion on that list , misrepresenting them as staff members .

Also on CARDINAL DATE Dutchbat personnel in GPE turned men out of the compound . Once the men had left the compound they were taken prisoner by the ORG . Dutchbat personnel later stated that they had believed the ORG would treat the men in accordance with LAW .

In DATE that followed , PERSON men who had fallen into the hands of the ORG were killed . Others managed to evade immediate capture and attempted to escape from the enclave ; some succeeded in reaching safety but many were caught and put to death , or died en route of wounds , or were killed by landmines . It is now generally accepted as fact that upwards of CARDINAL , perhaps CARDINAL PERSON men and boys died in this operation at the hands of the ORG and of NORP paramilitary forces .

The remains of the victims were buried in mass graves . In DATE that followed , attempts were made to hide evidence of the massacre by re - burying remains in secondary mass graves in remote locations .

Mr PERSON was employed by Dutchbat as an electrician . On DATE he sought refuge on the compound in PERSON with his wife and children . Although he did not hold a ORG identity pass , he was placed on the list of CARDINAL locally recruited ORG staff who would be allowed to leave with Dutchbat on account of the length of his service . Nevertheless , on CARDINAL DATE Warrant Officer PERSON – who was unaware of the existence of the list of DATE ordered Mr PERSON to leave the compound with the other refugees . Warrant Officer PERSON was later reprimanded by Major PERSON for this “ incredibly stupid mistake ” .

Mr PERSON was the younger brother of the applicant Mr PERSON . The latter was at that time employed as an interpreter for Dutchbat and for that reason his name was on the list of CARDINAL ORG employees who would be evacuated with Dutchbat . It appears that Mr PERSON had intended to join the column of PERSON men breaking out on foot in the direction of ORG , but had changed his mind and sought the protection of Dutchbat on the compound at PERSON on the strong urging of Mr PERSON . Both Mr PERSON and Mr PERSON asked Major PERSON to place Mr PERSON on the list of ORG staff . Major PERSON asked the battalion security and intelligence officer whether a ORG pass could be made on the compound but was told that this was not possible : such passes came from the ORG office in GPE . Major PERSON then refused to place Mr PERSON on the list , reasoning that he would compromise the safety of legitimate ORG staff members by including among their number a person who did not meet the relevant criteria . Major PERSON ordered Mr PERSON to leave the compound .

Mr PERSON , the father of Mr PERSON and Mr PERSON , acted as the ORG representative and attended the meeting between Lieutenant Colonel NORP and ORG on DATE . He was permitted for this reason by Major PERSON to stay in the compound and leave with Dutchbat . However , when Mr PERSON was ordered to leave the compound Mr PERSON elected to leave with him .

It is known that all CARDINAL , Mr PERSON , ORG and PERSON , were killed after having left the compound , either by ORG or by NORP paramilitary forces . Their remains were found buried in mass graves on various dates in DATE , DATE and DATE .

On DATE the applicants lodged a criminal complaint in writing with the public prosecutor ( officier van justitie ) to ORG ( rechtbank ) . The complaint included a request for a criminal investigation to be initiated into the alleged complicity of Lieutenant Colonel NORP , Major PERSON and Warrant Officer PERSON in genocide or alternatively in war crimes committed by the ORG against PERSON PERSON , Mr PERSON and Mr PERSON . Their argument was that Lieutenant Colonel NORP , Major PERSON and Warrant Officer PERSON had exposed the CARDINAL men to the likelihood of death at the hands of the ORG in full awareness of their probable fate . The complaint made made reference to , inter alia , ORG CARDINAL and CARDINAL of the LAW . The public prosecutor acknowledged receipt on CARDINAL DATE .

On DATE the applicants’ counsel , PERSON , wrote to the public prosecutor asking for the applicants to be allowed to make statements . On various dates in DATE she submitted information including inter alia statements made by witnesses in the parallel civil proceedings ( see below ) , and excerpts from the debriefing report ( see paragraph CARDINAL below ) and the report of the Secretary General of ORG ( see paragraphs DATE below ) .

On DATE the public prosecutor wrote to PERSON informing her that ORG ( Openbaar Ministerie ) had decided to enter into “ particular reflection ” ( nadrukkelijke reflectie ) on the results of the investigation up to that point with a view to deciding whether a full criminal investigation was called for . On DATE this was followed up by a letter informing PERSON that a national reflection chamber ( nationale reflectiekamer ) had been appointed to consider the case .

On DATE PERSON wrote to the public prosecutor stating that she had been contacted by the NOS ( PERSON , ORG ) , a domestic public service radio and television broadcaster , who had apparently been informed that the reflection chamber had recommended that the prosecution go ahead . She asked the public prosecutor to confirm this .

On DATE the ORG published a press item to the effect that the national reflection chamber had recommended the prosecution of Lieutenant Colonel PERSON , Major PERSON and Warrant Officer PERSON . The press item cited unnamed sources and added that ORG was refusing to give any details .

On DATE the public prosecutor confirmed to PERSON that the reflection chamber had expressed an opinion but declined to give any details .

On DATE PERSON wrote to the public prosecutor complaining that DATE had passed since the criminal complaint had been lodged and asking that a decision be taken .

On DATE the public prosecutor wrote to PERSON informing her of his decision not to bring any prosecution . The reasoning on which this decision was based included the following :

“ In this matter , I have examined in depth the sources to which you refer in your criminal complaint as well as other sources for the presence of inculpating and disculpating material in relation to the complaint . An analysis has been made of the operational and factual context within which the impugned conduct has taken place and the legal framework within which this conduct must be considered . Important sources from which I have drawn are :

the criminal complaint ;

the GPE archive of ORG ( arrondissementsparket ) LOC ( GPE ) and ORG ( parket - generaal ) ;

the account of the facts resulting from the GPE debriefing ( PERSON ) ( DATE ) ;

the defence report PERSON ( DATE ) ;

the parliamentary letters concerning GPE ;

the reports of the Secretary General of ORG ( DATE and CARDINAL DATE ) ;

the final report and the hearings of the parliamentary committee of inquiry , PERSON ) ( DATE ) ;

the ORG report [ ORG , Holocaust and Genocide Studies ( NIOD Instituut voor Oorlogs- , Holocaust- en GPE , ‘ NIOD’ ) : PERSON : Reconstruction , background , consequences and analyses of the fall of a ‘ safe’ area ] ( DATE ) ;

the case - law of ORG for the Former GPE ( ‘ ICTY’ ) ( among others , ORG , GPE . PERSON and PERSON ) ;

the evidence given by , among others , members of the GPE armed forces before the ORG ;

the evidence given in the [ applicants’ parallel civil proceedings ] against GPE ;

the correspondence of PERSON published in the DATE newspaper ORG .

There has , at various times , been broad internal consultation on the results of the various parts of the investigation and the analyses and further investigative measures have been ordered and carried out . In the factual investigation no witnesses have been heard . The investigation was followed and monitored by a steering group consisting of members of ORG , ORG ( landelijk parket ) , ORG at FAC ( ressortsparket ) , and ORG . ”

The decision takes CARDINAL pages to describe the events leading up to and surrounding the fall of the NORP enclave to the ORG and the deaths of Mr PERSON , ORG and PERSON . It continues :

“ CARDINAL . Criminal responsibility

CARDINAL General

It must be noted at the outset that the ( deadly ) violence to which PERSON , PERSON and PERSON were exposed after they had left the compound on DATE constitute conduct that can be qualified as CARDINAL or more of the crimes penalised in LAW ( PERSON ) and LAW ( PERSON ) and also that these crimes were committed by the ORG .

CARDINAL Culpable involvement in the killing of the victims named in the criminal complaint


CASE OF DROBYSHEVSKIY AND VITT v. RUSSIA

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

All the applicants were parties to civil proceedings in which the first instance and appeal courts granted their claims against the welfare authorities to recalculate periodical payments for social benefits ( i.e. DATE payments for compensation of damage , DATE payments for food allowance and arrears of payments ) . These judgments became final but were subsequently quashed on the basis of newly discovered circumstances . The courts found that the interpretation of law given in the quashed judgments had been different from that of ORG and/or Constitutional Court of Russian Federation . All the judgments were fully enforced prior to their quashing ( for more details see the Appendix ) .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney

The applicant was born in DATE and lives in GPE .

In DATE he was convicted of assault occasioning grievous bodily harm . He had a previous conviction for a similar offence against the same victim . A pre - sentencing report identified the Enhanced Thinking Skills ( “ ETS ” ) course followed by LAW ( “ CALM ” ) course as potentially appropriate courses for the applicant to complete during a sentence of imprisonment and explained that attendance at these courses would take DATE . On DATE an indeterminate sentence for public protection ( “ ORG sentence ” ) was imposed . A minimum term ( “ tariff ” ) of DATE and DATE was fixed .

The applicant was detained in ORG . On DATE a postsentence report by his probation officers confirmed that the ORG and CALM courses were , in principle , appropriate and that completion would take DATE . At a sentence planning board on DATE , following completion of an assessment using LAW ( “ FAC ) , his targets were identified as : positive use of his time in custody ; improved awareness of appropriate behaviour ( thinking skills ) ; and completion of a course on Victim Awareness , the latter of which , it was noted , had already been completed .

A progress report dated DATE noted :

“ Mr Hall has taken the only opportunities offered to him to address his offending and appears to have modified his attitude , which was a big step for him . ”

On DATE the applicant ’s tariff expired .

On DATE a first ORG was held . On DATE ORG informed the applicant of its decision not to direct his release or recommend his transfer to open conditions . The panel considered that the applicant still posed a high risk to his victim , particularly as the victim had been also been detained in ORG and the applicant had received an adjudication for assaulting him . In order to address this risk , the applicant was required to complete the ORG course and to be assessed for the CALM course , in closed conditions . The panel continued :

“ Your supervisors considered that you should be assessed for ORG and ORG , but this has not been possible at ORG , where you are considered to be a polite and respectful Enhanced Prisoner . ”

ORG referred to the applicant ’s submission that he would control himself and avoid the victim in future and that he was prepared to respect non - contact and exclusion zone conditions to secure his release . It concluded :

“ The ORG accepts without reservation , that your high level of risk relates solely to your involvement with [ the victim ] , but this is a risk which can not be ignored , despite your determination to avoid him . Any such involvement is a real concern and can not be ignored . It is the view of the ORG , having taken into account the varying views of your supervisors , that prior to your release you should have the opportunity to carry out all outstanding offending behavior work , namely ORG and to be assessed for CALM , and that the appropriate place for this to be done , is in Closed Conditions . ”

On DATE the Secretary of ORG approved ORG recommendation and set the review period at DATE to complete outstanding offender behaviour work , with a hearing to take place in DATE .

On DATE the applicant was transferred to PERSON . His targets were reviewed with his offender supervisor and on DATE , after a review of an initially negative decision , he was referred for assessments for the ORG and CALM courses and ORG ( “ HRP ” ) .

In DATE , the applicant was deemed suitable to progress to the second stage of the assessment for the ORG course .

In the applicant ’s ORG dated DATE , prepared by his offender manager , it was recorded that he was to be assessed for and , if suitable , complete the ORG and CALM courses and the HRP . The report added as regards the HRP :

“ I am also of the opinion that consideration needs to be given to completing this work in the community as a condition of his licence because the waiting list is extremely long . ”

At a sentence planning and review meeting on DATE , the applicant ’s sentence targets recorded that he should be assessed for and complete the ORG and CALM courses and the HRP programme . It was noted that he required extra psychological assessment as he appeared to be afraid of participating in group activities , which might hinder his eventual participation in the courses recommended to him .

A report of an interview with his offender supervisor dated DATE notes :

“ When the question of his current sentence plan targets was raised , he stated that he would not do any of the courses as he hates classrooms and he will not be forced into doing them . When it was explained that this attitude would make it extremely difficult for him to make any progress in his sentence and through the prison system , he stated that he did not care and would stay here ‘ for DATE ... PERSON did not want to discuss any of his specific sentence plan targets with me and this is clearly an area that needs to be addressed in order for him to progress . ”

In his ORG of DATE , the applicant ’s offender manager stated that she could not support the applicant ’s release because at that stage he had not undertaken any work to address his behaviour . She noted his resistance to offending programmes and reported that it was “ absolutely imperative ” that arrangements be made for him to be psychologically assessed , adding :

“ Mr PERSON faces the potential of being left serving an ORG sentence with no means of working towards his release . ”

She further noted that she had made enquiries at the prison as to whether the applicant might undergo psychological assessment but that the chances of this occurring were seen as slight . She stated that if this was not available at his current institution , the applicant would need to be moved to a facility where it could be undertaken .

In DATE the applicant ’s case was referred to ORG .

A Sentence Planning and Review Report dated CARDINAL DATE recorded the applicant ’s refusal to engage with his sentence plan targets to reduce his risk . It recommended that the ORG , CALM and HRP courses be undertaken in closed conditions and that counselling be provided .

On DATE the applicant confirmed that he was prepared to do the ORG course in a one - to - one basis .

On DATE he met with the ORG facilitators and on CARDINAL DATE was notified that he had been identified as a potential participant of the ORG course scheduled to begin on CARDINAL DATE .

The applicant was duly enrolled on the DATE ORG course . He completed the course in DATE . A post - programme review took place on CARDINAL DATE .

NORP The applicant was subsequently informed by his probation officer that there was a DATE wait for access to the CALM course .

On an unknown date ORG hearing scheduled for DATE was deferred to DATE in order to allow for the completion of the post - ORG course report . It was subsequently deferred again until CARDINAL DATE .

Meanwhile , at some point in DATE or DATE , the applicant was assessed for the HRP and was found to be unsuitable .

On DATE the applicant ’s solicitors informed ORG that they had commissioned an independent psychologist ’s report on the applicant and that it might not be completed by the time of the scheduled hearing . As a result , on DATE ORG issued directions deferring the hearing and imposing deadlines for the provision of the psychiatric report ( DATE ) and any report in response by the Secretary of ORG ( DATE ) . The target DATE for the hearing was DATE .

The independent psychology report was completed on DATE and filed with ORG on DATE . The report supported the applicant ’s release on licence into the community . It explained that the applicant had tried to complete his treatment goals but that his fear of group settings combined with his low IQ had made this very difficult . It further stated :

“ CARDINAL I strongly recommend irrespective of the outcome of any future ORG hearing that Mr Hill receives CARDINAL - to - CARDINAL counselling as a matter of urgency ...

CARDINAL There has been much debate regarding Mr PERSON ’s need for further treatment and indeed his ability to benefit from such treatment . In my opinion a prerequisite for deciding the issue is that PERSON undergo further cognitive and/or psychoneurological assessment . ”

In an addendum to the report dated DATE , it was noted that the applicant was not capable of benefitting from group work but was fully capable of CARDINAL - to - one coursework .

The prison was not notified that a report was required until DATE . Because of other reporting commitments , it informed the parties that it would be unable to deliver the necessary report before DATE .

ORG hearing was subsequently further deferred until DATE .

In an addendum to ORG , the applicant ’s offender supervisor explained :

“ There have been problems getting PERSON assessed for the CALM course , some of which relate to his reluctance to participate and others due to issues relating to availability of staff . ”

On DATE the applicant was informed that his ORG hearing had been cancelled because the applicant ’s offender supervisor was unable to attend and that the earliest possible date for the hearing would be DATE .

The deferred ORG hearing took place on DATE . By letter dated DATE , ORG noted that the applicant had not cooperated with a prison transfer to allow him to be assessed for the CALM course and that he appeared to prioritise his work over addressing his areas of risk . ORG further noted that the applicant was still , DATE into his sentence , providing new and important background to the motivations and triggers for his violence . It said that this had limited the assessment of his risk factors .

The applicant subsequently sought judicial review of ORG decision not to recommend his transfer to open conditions . On DATE ORG granted the judicial review application on the basis that the panel had failed to carry out the correct balancing exercise when considering whether to accede to the applicant ’s request for a transfer to open conditions . ORG was instructed to reconsider this aspect of the applicant ’s case .

The applicant subsequently undertook the CALM course and completed it in DATE .

ORG held an oral hearing on DATE . By letter dated CARDINAL DATE , it directed the applicant ’s release . He was released on DATE .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicant was born in DATE and lives in GPE .

Prior to its privatisation , the flat at CARDINAL ORG , GPE , had been owned by GPE . NORP had resided there as a tenant under the social housing agreement with GPE . On DATE the title to the flat was transferred to NORP under a privatisation scheme .

On DATE NORP died .

NORP In DATE PERSON . applied to a notary seeking recognition as NORP ’s heir . In support of his application , PERSON . submitted a will allegedly signed by NORP on DATE .

On DATE the notary granted the request and issued a certificate confirming , inter alia , that PERSON . had inherited NORP ’s flat .

On DATE ORG ( ORG ” ) registered the certificate , confirming PERSON . ’s title to the flat .

On DATE PERSON . sold the flat to the applicant . On an unspecified date ORG registered the transaction and issued the relevant deed , confirming the applicant ’s title to the flat . The applicant moved in and resided in the flat . After the birth of her daughter in DATE , she resided there with her daughter .

On an unspecified date the authorities opened a criminal investigation concerning the forgery of the will issued on behalf of NORP

On DATE ORG of GPE found PERSON . guilty of fraud and sentenced him to CARDINAL years’ imprisonment and confiscation of property . In particular , the court established that PERSON . , acting in concert with other persons , whose identity was not known , had fraudulently acquired NORP ’s flat and sold it to the applicant on the basis of a forged will . The judgment became final on DATE .

On DATE the prosecutor brought a civil claim on behalf of ORG ( the “ ORG ” ) seeking ( CARDINAL ) the annulment of NORP ’s will and of the applicant ’s title to the flat ; ( CARDINAL ) the applicant ’s eviction ; ( CARDINAL ) restitution of the flat to GPE ; and ( CARDINAL ) annulment of the purchase agreement between PERSON . and the applicant , and the reimbursement by PERSON . of the amount the applicant had paid for the flat .

On DATE ORG examined the case in the applicant ’s absence and granted the prosecutor ’s claims in full . The applicant appealed .

On DATE ORG held that ORG had failed to duly inform the applicant of the date and time of the hearing . It quashed the judgment of DATE and remitted the case for fresh consideration .

In the new set of proceedings the applicant brought a counterclaim against GPE , seeking to be recognised as a bona fide purchaser of the flat .

On DATE ORG invalidated PERSON will and PERSON . ’s title to the flat . The court established that the property was escheat and ordered its restitution to GPE . It also ordered the applicant ’s eviction . The court dismissed the remainder of the prosecutor ’s claims concerning the annulment of the sale contract concluded by PERSON . and the applicant , and the former ’s obligation to return the sum paid by the applicant to her . As regards the applicant ’s counterclaim , the court recognised that she had bought the flat in good faith . However , it found that because PERSON . had acquired NORP ’s flat fraudulently , he had , in fact , stolen it from GPE and the latter had the right to reclaim the flat from the applicant , despite the fact that she was a bona fide purchaser .

On DATE ORG upheld the judgment of DATE on appeal .

On DATE the district bailiff ’s service instituted enforcement proceedings in respect of the judgment of DATE .

On DATE the applicant and her daughter were evicted from the flat . According to the applicant , they had to move in with her parents and her brother and his family .

According to the Government , on DATE the flat was reassigned to ORG . , who had been on the social housing waiting list for DATE .

On CARDINAL DATE ORG recognised the City ’s title to the flat . In particular , the court established that NORP had died intestate and without heirs and that her flat should have been transferred to the ORG as escheat property . The court also terminated the applicant ’s title to the flat .

On DATE ORG upheld the judgment of CARDINAL DATE on appeal .


CASE OF CEROVŠEK AND BOŽIČNIK v. SLOVENIA

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first applicant was born in DATE and lives in PERSON . The second applicant was born in DATE and lives in GPE .

The applicants were charged in DATE and DATE respectively of committing theft by cutting down and taking trees from a forest belonging to another person and appropriating the wood . They were tried by a professional judge , PERSON , sitting as a single judge .

The first applicant stated in his defence in the proceedings against him that he had cut down trees which had been marked for cutting or had been attacked by bark beetle in his own forest . In the course of the proceedings against the first applicant Judge PERSON examined a number of witnesses during the main hearing , inspected the place of the alleged offence and examined a number of other documents , including a sketch and a copy of the land register map . None of the witnesses testified that they had seen the first applicant cutting down trees on the injured party ’s plot of land . However , they testified about a number of other circumstances in relation to the charges , for example similarities in the way the trees had been cut down on the first applicant ’s land and on that of the injured party , traces of the transport of trees , the fact that the first applicant had regularly sold wood and that he had also cut down unmarked trees on his own land . CARDINAL of the witnesses also testified that he had seen the first applicant and another person , GPE , transporting trees over the injured party ’s land . Another witness , the injured party ’s husband , testified that PERSON had indirectly confirmed his involvement in cutting down the trees in question . PERSON , however , stated that he believed that he had only cut down marked trees on the first applicant ’s land . The court also appointed an expert , who estimated that the value of the allegedly stolen wood amounted to QUANTITY ( ORG ) .

The second applicant was charged with CARDINAL counts of theft . In the course of the proceedings against him , Judge PERSON heard a number of witnesses at the main hearing and examined several documents , including copies of the relevant land register maps . In respect of the first charge , the second applicant maintained that he had mistakenly thought that he had been cutting down trees on his own land , whose borders had been shown to him by the former owners , GPE and GPE , who also appeared as witnesses in the proceedings . The husband of the injured party , GPE , stated that they had found out about the stolen wood DATE after the event and that neighbours had told them that the second applicant had been seen in the forest at the time , while another person , GPE , had been seen transporting the wood . He also testified that the second applicant had admitted to him that he had cut down the trees , thinking that they had belonged to his land but that they had failed to agree on how much the second applicant should pay ORG in compensation . ORG stated that he had helped the second applicant transport the wood and that he had been told by him that the land belonged to him , which ORG had found suspicious . Another witness , PERSON , stated that he had helped GPE load the truck with the wood . As to the second charge , the second applicant argued that he had had an agreement with the injured party in that case , ORG , that he could cut down trees in exchange for wine . The judge questioned the injured party , who denied the existence of such an agreement . The court also appointed an expert , who estimated that the value of the beech and hornbeam trees cut down amounted to ORG CARDINAL and that of the acacia trees at FAC .

On DATE Judge PERSON found the first applicant guilty of taking another ’s movable property with the intention of unlawfully appropriating it , and sentenced him to DATE in prison , suspended for DATE . The judge found that the applicant had cut down and taken CARDINAL oak trees in a forest without the knowledge of its owner and had appropriated wood worth EUR CARDINAL . She ordered him to either deliver to the injured party the same quantity of oak that had been taken from the forest or to pay compensation of ORG CARDINAL . She pronounced a guilty verdict and sentenced him ( izrek , hereinafter referred to as “ the verdict ” ) orally .

On DATE Judge PERSON , again giving an oral verdict , found the second applicant guilty of taking another ’s movable property with the intention of unlawfully appropriating it and sentenced him to DATE in prison , suspended for DATE . She found that the second applicant had cut down and taken CARDINAL beech trees and QUANTITY hornbeams worth at least EUR CARDINAL and CARDINAL acacia trees worth at least EUR CARDINAL from land belonging to other persons . Moreover , the second applicant was ordered to pay compensation of ORG CARDINAL and ORG CARDINAL respectively to the CARDINAL injured parties .

The Government submitted that Judge PERSON , when pronouncing the verdict , had also given an oral summary of the main reasons ( see paragraph CARDINAL below ) , however , no indication of that can be found in the records of the hearing .

After hearing the verdict both applicants gave notice of their intention to appeal , which gave rise to an obligation on the part of Judge PERSON to draw up written grounds for her verdicts ( see paragraph CARDINAL below ) .

PERSON later retired on an unspecified date and the case files in both applicants’ cases got lost . In DATE , the local court reconstituted the files .

Based on the documents contained in the restored case file , Judge PERSON delivered written grounds for the verdict pronounced by Judge PERSON ( see paragraph CARDINAL above ) , which were served on the first applicant ’s counsel on CARDINAL DATE . In her reasoning , the judge relied on the records of the hearings , the transcript of the inspection of the location and other documents in the file . The judge did not believe the applicant ’s version of events and dismissed PERSON ’s statements as biased because he had been working for the first applicant . She also found his testimony to be in contradiction with some of the other witness statements . The court relied heavily on the finding that while PERSON had cut down the trees professionally on the applicant ’s land , witness testimony showed that certain trees had been cut down in an unprofessional manner on both the applicant ’s and the injured party ’s land , and that the first applicant and GPE had been seen transporting trees over the injured party ’s land .

The written grounds in the second applicant ’s case ( see paragraph CARDINAL above ) were delivered by Judge PERSON , who also based them on the documents contained in the restored case file . They were served on his counsel on CARDINAL DATE . As to the first charge , the judge found that the second applicant ’s defence had not been convincing . In particular , the judge considered the statements of CARDINAL witnesses , GPE and GPE , to be unpersuasive . On the other hand , the judge relied on the statements of the injured party and her husband , supported by other evidence , for example , the expert ’s opinion , the statements of the witnesses PERSON and I.T and the copy of the land register map showing that GPE ’s land did not border on the second applicant ’s . As to the second charge , the court relied predominantly on the statement of the injured party , ORG , who denied that he had had an agreement with the second applicant . Other evidence , such as the expert ’s opinion and photographs , confirmed that ORG was indeed the owner of the land and indicated the number of trees that had been cut down .

Both applicants appealed against the judgments , raising similar arguments as those submitted to ORG ( see paragraph CARDINAL below ) . They further alleged that the judgments should have been set aside and remitted to the first - instance court for fresh consideration . Furthermore , both applicants also appealed against the factual findings on which their convictions had been based , including the assessment of the credibility of a number of witnesses . The second applicant also complained about the assessment of the existence of intent on his part to commit the second count of theft .

On DATE and CARDINAL DATE respectively , ORG dismissed the ORG appeals , holding that the fact that the written grounds of the impugned judgments had been given DATE after they had been delivered orally had not rendered the judgments unlawful . The higher court emphasised that the impugned judgments had been based on facts established in adversarial proceedings and on evidence given at hearings which the applicants had been able to challenge by presenting their own versions of the events at issue . The first - instance judgments had been given orally by Judge PERSON who had presided over both PERSON hearings , had questioned the applicants and heard the witnesses . Moreover , the written grounds had disclosed on what evidence the judges providing them had relied and how they had assessed the reliability of the ORG statements . In the higher court ’s opinion , the written grounds had been clear and reasonable . As regards the first applicant , the higher court reassessed the evidence , including the witness statements , and came to the same conclusion as the first - instance court . As to the second applicant , the higher court noted that the first - instance court had truthfully and accurately established all the relevant facts of the case , and that it had been proven that the second applicant had intended to commit the second offence .

On DATE and DATE respectively , the applicants lodged applications for the protection of legality ( zahteva za varstvo zakonitosti ) with ORG , raising similar arguments as those submitted to ORG ( see paragraph CARDINAL below ) and referring to ORG decision of DATE ( see paragraph CARDINAL below ) .

On DATE and DATE respectively , ORG dismissed the applicants’ applications for the protection of legality , holding that only the operative part of the judgment , namely the verdict , could have interfered with the rights of the parties , while the purpose of written grounds was to enable a decision to be reviewed by higher instances . As a rule , the written grounds of a judgment were given by the judge who had conducted the trial and pronounced the verdict . However , in certain situations , such as when a judge was absent for a long time or died , the law had to be interpreted as permitting another judge to give the written grounds . In such cases , the judge who wrote the judgment based it on logical reasoning and the evidence in the file . ORG found that while the principle of immediacy required that a verdict should be given by the judge who had participated in the trial , the act of writing a judgment , was not , strictly speaking , part of the trial . Moreover , if the written grounds for a judgment were not convincing , a defendant had a better chance of succeeding with his or her appeal . Having regard to those considerations , ORG took the view that the applicants’ rights of defence had not been violated .

On DATE and DATE respectively , the applicants lodged constitutional complaints , reiterating the arguments they had made before the lower courts .

On DATE ORG refused to admit the applicants’ constitutional complaints , holding that their cases concerned neither a violation of human rights having serious consequences for them nor an important constitutional question .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life)

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 . He has lived in GPE , a residential district of GPE since DATE . Since DATE ORG ( “ the ORG ” ) has allowed licensed LOC , such as bars , pubs and discotheques , to open in the vicinity of his home . In view of the problems caused by the noise , ORG resolved on DATE not to permit any more licensed LOC to open in the area . However , the resolution was never implemented and new licences were granted . In DATE , ORG carried out a study of the levels of TIME - time noise during DATE on behalf of ORG . It was reported that in the GPE district the noise levels were notably higher to the legally accepted norm .

In DATE , the applicant became president of the neighbourhood association of his district . In that position , and in an attempt to improve the noise - pollution situation for both himself and his neighbours , he lodged various claims against ORG . He also asked for the withdrawal of the business licences of several establishments . ORG replied that in fact no business activities were being carried out in some of the LOC , and that the business activities carried out in the others could not be considered as producing a high level of noise ( for example bakeries ) . Lastly , the licences had in any case expired in many of the establishments .

On DATE ORG adopted the municipal Ordinance on noise and vibrations ( ORG hereinafter “ the LAW ” ) . Furthermore , in DATE , at the applicant ’s request , the municipality required the pub located in the basement of the applicant ’s building to install a noise limiter .

Following a resolution of ORG , sitting in plenary session on DATE , which was published in the GPE ORG on DATE , the area in which the applicant lives was designated an “ acoustically saturated zone ” ( zona acústicamente saturada ) .

In view of the fact that the levels of noise pollution did not decrease , the applicant decided to replace his windows with double glazing and to install air conditioning in order to alleviate the high temperatures caused by having the windows permanently closed in DATE .

On DATE the applicant brought a preliminary ORG liability claim before ORG , relying on LAW ( right to life and to physical integrity ) and LAW ( right to privacy and inviolability of the home ) of LAW . The applicant asked for compensation for the expenses incurred , as well as for compensation in respect of pecuniary and non - pecuniary damage .

Having received no reply from the authorities ( silencio administrativo negativo ) , the applicant lodged a complaint with ORG ( “ the High Court ” ) on DATE . On DATE ORG issued a resolution denying his preliminary State liability claim . ORG joined the proceedings before ORG .

NORP The applicant provided the court with CARDINAL reports : the first CARDINAL of CARDINAL DATE prepared by the municipal service for the environment stated that :

“ Prior to the entry into force of the declaration of an acoustically saturated zone , the levels of disturbance by noise during TIME exceeded QUANTITY , mainly during DATE from TIME .

... after the declaration [ of the area ] as an acoustically saturated zone and the adoption of some corrective measures the levels of disturbance still exceed [ those permitted for TIME - time ] .

The second report was issued on DATE by the same municipal service , which admitted that :

“ ... it must be concluded that ... the limits established in LAW of [ the Ordinance ] are still being exceeded . ”

NORP In order to sustain his arguments , the applicant also produced an expert report , produced by an applied physics professor , which was joined to his complaint . The report noted as follows :

“ The measured noise on the street and the noise perceived by neighbours in their homes , in the NORP area of GPE DATE which is where the applicant lives DATE rise high total levels of ... QUANTITY ... Those levels are clearly related to the presence of a concentration of the entertainment industry in that area ( pubs and discotheques ) .

As a result of this situation , the expert stated that it could be estimated that the sound levels for instance in a front facing bedroom were QUANTITY ( hereinafter ORG ) and sometimes they could even reach CARDINAL ORG . The expert highlighted that ORG had recommended a maximum permitted level at TIME of CARDINAL dBA . Consequently , there was a difference of CARDINAL dBA . However , the expert report pointed out that this was a general estimation and that it was made without measuring the inside of the dwellings concerned .

Lastly , the applicant produced a medical report stating that he was suffering from anxiety due to the excessive noise inside his flat . The report concluded by considering that there was a relationship of cause - effect between the noise pollution and his psychiatric illness .

During the proceedings , ORG ordered a legal medical expert report by a specialist in preventive medicine . The appointed expert reported that :

“ ... the nocturnal noise altered necessarily the physiological sleep of Mr GPE and his family , [ although it is not ] possible to ascertain the intensity of the disturbance owing to the lack of corresponding sleep studies ” .

“ ... the sleep disturbance as a consequence of that noise produced in Mr GPE an ‘ anxious depressive syndrome reacting to the noise , change in his psychiatric state manifested by irritability with his , anxiety , diminution of intellectual ability and somatization’ ” .

ORG maintained that it was not proven that the applicant was suffering the noise level which he claimed in his home , as the environmental noise is perceived differently in each home , according to its height , aspect and other particularities . Furthermore , ORG had been carrying out extensive activities in order to enforce compliance with the legislation on noise . It could not be said that ORG tolerated infractions of that legislation .

In a judgment of DATE ORG dismissed the complaint . It found that there was no causal connection between the noise pollution and the alleged damage caused to the applicant , since there was no evidence proving that in his particular flat the level of noise pollution exceeded the established limits . Indeed , the applicant had decided to replace his windows without previously asking for a measurement of the noise inside his flat , as provided by LAW . Furthermore , it should be taken into account that the applicant ’s flat was on the fourth floor , where the noise would certainly be less intense than on a lower floor .

The applicant lodged an amparo appeal before ORG , claiming that the ORG had violated his fundamental rights protected by ORG ( equality before the law ) , CARDINAL ( right to life and to physical and moral integrity ) , CARDINAL ( inviolability of the home ) and CARDINAL ( right to a fair trial ) of the Spanish Constitution . This appeal was initially dismissed on DATE .

On DATE ORG ( hereinafter “ the Court ” ) delivered a judgment in the case of PERSON v. GPE ( no . CARDINAL , ECHR CARDINALX ) . In the light of this judgment , the public prosecutor lodged an appeal against ORG decision , asking for the admission of the applicant ’s amparo appeal . On DATE ORG upheld the public prosecutor ’s appeal and declared the amparo appeal admissible . ORG stated that the judgment issued by ORG in the case of PERSON :

“ ... justifie[d ] entirely the reconsideration of the present amparo appeal , in order to ascertain the measure in which it might deal with an analogous case , and to examine whether the objects of analysis of the [ GPE ] Court [ had been ] the same fundamental rights as in this amparo appeal ” .

In the proceedings before ORG , the public prosecutor claimed that there had been a violation of ORG CARDINAL and CARDINAL LAW . He argued that the ORG had already addressed this issue in the case of PERSON , which had dealt with the exact same situation suffered by the applicant ’s neighbour , and declared that GPE had violated LAW . The prosecutor considered that PERSON and the applicant ’s case were similar in terms of the facts as well as in the object and the merits , which was in principle sufficient to deliver a judgment on the merits on the alleged violations of the right to private and family life and to inviolability of the home .

In a judgment of CARDINAL DATE , served on the applicant on DATE , the plenary of ORG dismissed the amparo appeal , arguing that ( CARDINAL ) both cases were not identical , ( CARDINAL ) the applicant had not proved that in his particular case the noise at his flat was above the permitted level , ( CARDINAL ) that ORG had indeed adopted specific measures to reduce noise pollution at the applicant ’s neighbourhood and ( CARDINAL ) that he had not proved that his health problems had been directly caused by noise pollution . The judgment was not adopted by unanimity .

CARDINAL judges out of CARDINAL issued a dissenting opinion holding that there had been a violation of Articles CARDINAL § CARDINAL , CARDINAL § § CARDINAL and CARDINAL of the LAW . In particular , the dissenting judges argued that the standard employed by ORG to decide when the right to privacy and family life had been infringed should have been based on the case - law of the ORG and that prolonged exposure to a high levels of sound that could be qualified as avoidable and unbearable deserved the protection of the courts , given that it impeded him from living a normal life . They reiterated that according to the judgment delivered in the PERSON case ( cited above ) , the assessment of a violation no longer depended on the evidence provided by the applicant about the seriousness of the noise pollution inside his home . Instead , the decisive element was to be hereafter the location of the house in an excessively noisy area and it would be enough for the applicant to prove the excessive level of noise in the street . Furthermore , the effects of noise on the applicant ’s health had been confirmed by the expert report issued in the proceedings before ORG .