George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

NORP The applicant in the first case , Mr PERSON , is a NORP national , who was born in DATE . His current address has not been notified to the ORG . He was represented before the ORG by Mr PERSON of ORG , a firm of solicitors practising in GPE . The second applicant , Mr PERSON , is a NORP national who was born in DATE . His current address has not been notified to the ORG . He was represented before the ORG by ORG , a firm of solicitors practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

NORP On DATE the ORG complaint concerning the length of criminal proceedings only was communicated to the Government .

The applicants , who were both accountants , were partners in the firm PERSON . In DATE ORG ( “ ORG ) began investigating the firm . This investigation found that there had been no violation of LAW DATE . In DATE the ORG began a second investigation which was subsequently transferred to ORG ( “ FAC ” ) and which formed the basis for criminal charges that followed in DATE .

NORP In DATE the FAC and ORG ( “ MLIT ” ) raided the offices of PERSON , as well as the second applicant ’s home , and seized documents . The applicants were subsequently arrested on suspicion of money laundering and granted bail . In DATE the ORG carried out a second raid , following which they arrested both applicants on suspicion of conspiracy to defraud . Both applicants were granted bail .

NORP In DATE the MLIT charged the applicants with money laundering .

In DATE the FAC carried out a third raid , following which both applicants were arrested on suspicion of conspiracy to corrupt . They were again granted bail .

NORP The applicants’ trial in relation to the DATE money laundering charge was due to commence in DATE . However , following an application by the ORG an adjournment was granted and the trial was postponed until DATE . On DATE Her Honour Judge PERSON , sitting in ORG , stayed the prosecution on grounds of abuse of process by reason of a disbelief that the prosecution would honour their disclosure obligations and a violation of the reasonable time guarantee contained within LAW .

On DATE the ORG charged both applicants with conspiracy to defraud and conspiracy to corrupt in connection with an alleged bribe . It was the prosecution ’s case that after DATE the applicants had developed in GPE a Ponzi scheme referred to as the “ PERSON White ” scheme . The value of the alleged fraud was put at over ORG CARDINAL . Both applicants were granted bail .

In DATE the prosecution provided a case summary to the applicants and on DATE His Honour Judge PERSON fixed a trial window for DATE . At the same time the second applicant was remanded in custody and later sentenced to CARDINAL months’ imprisonment for breaching his bail conditions . He was released in DATE as the ORG had failed to extend the custody time limits .

On DATE Mr Justice Langstaff ( Langstaff J ) set a firm trial date for CARDINAL DATE . However , at the same time nearly all defence counsel withdrew citing other professional commitments . A new defence team was subsequently appointed .

NORP In DATE and DATE the prosecution made CARDINAL late and substantial disclosures of further evidence , consisting of CARDINAL of pages .

On DATE , an application was made jointly by the prosecution and the new defence team to postpone the trial as neither side considered that the case could be made ready in time for the original trial date . The defence sought an adjournment until DATE . A limited postponement of DATE was granted until DATE .

In DATE the applicants dismissed their legal representatives , alleging certain deficiencies in the quality of the service they provided . The applicants then sought to transfer their representation orders . This was required to enable the applicants to instruct new representation whilst continuing to benefit from publicly funded legal advice and assistance . On DATE the judge refused . Later , following a written application and oral submissions , for which the applicants were assisted by counsel , the judge indicated that he might transfer the representation order . However , CARDINAL of the requirements of new leading counsel was that the trial be pushed back again to DATE . The judge again refused as he considered that the applicants had not given a good reason for dismissing their previous representation .

NORP The applicants’ trial began on DATE and lasted for DATE . At the beginning of the trial , the applicants made an outoftime application to FAC to stay the proceedings as an abuse of process arguing a breach of LAW CARDINAL § CARDINAL reasonable - time requirement . In a decision dated DATE Langstaff J found that the period of unexplained delay between the beginning of proceedings , deemed to be DATE , and the date of the formal charge on DATE , had amounted to a breach of the reasonable - time requirement .

In determining the start date of proceedings , PERSON had noted that in DATE , the ORG investigation was on - going and that no decision had been made whether to bring charges against the applicants ; that at some time DATE a decision had however been made ; that in DATE it had been “ indicated ” and notified to the applicants that they would probably face charges ; and that DATE was therefore , the relevant date for LAW purposes . He explicitly rejected the ORG assertion that the relevant time period for the purposes of LAW had commenced any earlier . In particular , PERSON found that the charges on which the applicants faced trial were sufficiently different to the earlier money - laundering charges , so that the relevant time period did not extend to incorporate those charges ; that if the reasonabletime period necessarily began running the moment there had been an arrest , an investigation or a seizure of documents , such might incline the authorities to take precipitant haste in deciding whether or not to bring charges ; that the authorities should take care not to hastily charge an individual where such would be unjustified ; and that a proper distinction should be drawn between an investigation and a decision to prosecute , at which time the individual concerned would be duly informed . PERSON also concluded that there was no other period of unreasonable delay in the applicants’ case , having regard to the complexity of the case and the conduct of the parties . He determined that the appropriate remedy for the identified breach was not a stay of the indictment : rather that it should be taken into account when deciding the question of costs in the event of acquittal , or by taking it into account at the time of sentence in the event of a conviction .

At the close of the prosecution case , the applicants renewed their LAW abuse - of - process submissions to PERSON In a decision promulgated on DATE , he upheld his previous decision of CARDINAL DATE .

On DATE the applicants were convicted by a jury , on a majority verdict , of conspiracy to defraud and conspiracy to corrupt .

On DATE both applicants were sentenced to sevenandahalf GPE imprisonment . PERSON noted that the maximum sentence available for a conviction of conspiracy to defraud was CARDINAL years’ imprisonment and that the offence committed by the applicants fell towards the top of that tariff . The maximum sentence available on the conspiracytocorrupt conviction was DATE imprisonment . Although Langstaff J found that the corruption offence had a close relationship to the defraud offence , it was not “ part and parcel ” of it . Therefore , a separate penalty was required . Considering however the period of some fifteen months’ unreasonable delay in the course of the case ( during which time the applicants had been at liberty ) , the period of “ effective custody ” to which the applicants had been subjected during the length of the trial , and the fact that there was no previous involvement in like offending , a sentence of DATE in respect of the conspiracy to defraud and DATE consecutive in respect of the conspiracy to corrupt was imposed .

The applicants sought leave to appeal their conviction to ORG . They argued that their conviction was unsafe because , inter alia , the trial judge had refused to transfer the representation order . The applicants’ grounds of appeal did not contain any LAW abuseofprocess submissions and did not seek to challenge the trial judge ’s finding with regard to the commencement of proceedings for the purposes of the reasonable - time requirement . The application for permission to appeal was refused on DATE following an oral hearing , on the ground that the request for a change of representation order was not reasonable and that the judge had been entitled to find same .

Meanwhile , on DATE , following conviction , confiscation proceedings were brought against both applicants . On DATE all parties to the proceedings agreed that the applicants had each benefited by MONEY . Contested hearings took place in DATE and DATE . Provisional judgment was given on DATE and an amended and finalised judgment was handed down on DATE . In respect of the first applicant , a confiscation order was made in the sum of GBP CARDINAL to be paid within DATE , with a sentence in default of CARDINAL years’ imprisonment . In respect of the second applicant , a confiscation order was made in the sum of GBP CARDINAL to be paid within an unknown period of time , with a sentence in default of CARDINAL years’ imprisonment .

Both applicants sought leave to appeal those orders . Permission to appeal was granted to argue the specific point of the realisable value of jointly held assets and refused on all other grounds . The applicants pursued an application for leave to appeal on unparticularised additional grounds . That application and the appeal on the ground for which leave had been granted were considered at CARDINAL hearing held on CARDINAL and CARDINAL DATE .

On DATE ORG refused leave to appeal on the additional grounds argued . Furthermore , in considering the appeal before it , the court concluded that the orders made were wrong insofar as they were based upon treating the jointly held assets as PERCENT available to each of the applicants . The appeals were allowed to the limited extent of repairing the identified error . The previous orders were quashed and substitute orders made . In respect of the first applicant , a confiscation order was made in the sum of GBP CARDINAL,CARDINAL.CARDINAL to be paid within DATE , with a sentence in default of CARDINAL half years’ imprisonment . In respect of the second applicant , a confiscation order was made in the sum of GBP CARDINAL to be paid within an unknown period of time , with a sentence in default of CARDINAL years’ imprisonment .

In Attorney General ’s Reference ( No CARDINAL of CARDINAL ) [ DATE ] CARDINAL A.C. DATE , ORG , the majority in ORG considered the implications of Article CARDINAL on the question whether a prosecution should be stayed by reason of delay alone . Lord PERSON , delivering the majority judgment , stated :

“ CARDINAL . NORP If , through the action or inaction of a public authority , a criminal charge is not determined at a hearing within a reasonable time , there is necessarily a breach of the defendant ’s Convention right under article CARDINAL(CARDINAL ) . For such breach there must be afforded such remedy as may ( section CARDINAL(CARDINAL ) ) be just and appropriate or ( in Convention terms ) effective , just and proportionate . The appropriate remedy will depend on the nature of the breach and all the circumstances , including particularly the stage of the proceedings at which the breach is established . If the breach is established before the hearing , the appropriate remedy may be a public acknowledgement of the breach , action to expedite the hearing to the greatest extent practicable and perhaps , if the defendant is in custody , his release on bail . It will not be appropriate to stay or dismiss the proceedings unless ( a ) there can no longer be a fair hearing or ( b ) it would otherwise be unfair to try the defendant . The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances . The prosecutor and the court do not act incompatibly with the defendant ’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions ( a ) or ( b ) is met , since the breach consists in the delay which has accrued and not in the prospective hearing . If the breach of the reasonable time requirement is established retrospectively , after there has been a hearing , the appropriate remedy may be a public acknowledgement of the breach , a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant . Unless ( a ) the hearing was unfair or ( b ) it was unfair to try the defendant at all , it will not be appropriate to quash any conviction . Again , in any case where neither of conditions ( a ) or ( b ) applies , the prosecutor and the court do not act incompatibly with the defendant ’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time .

The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith , unlawfulness and executive manipulation of the kind classically illustrated by R v ORG , Ex p Bennett [ DATE ] CARDINAL AC DATE , but Mr PERSON contended that the category should not be confined to such cases . That principle may be broadly accepted . There may well be cases ( of which ORG v The ORG [ DATE ] CARDINAL WLR CARDINAL is an example ) where the delay is of such an order , or where a prosecutor ’s breach of professional duty is such ( PERSON v ORG [ DATE ] CARDINAL NZLR CARDINAL may be an example ) , as to make it unfair that the proceedings against a defendant should continue . It would be unwise to attempt to describe such cases in advance . They will be recognisable when they appear . Such cases will however be very exceptional , and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant ’s Convention right . ”

Lord PERSON concluded that :

“ ( CARDINAL ) Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article CARDINAL ) of the Convention only if ( a ) a fair hearing is no longer possible , or ( b ) it is for any compelling reason unfair to try the defendant . ”

That approach was followed by ORG in PERSON v The ORG , GPE [ DATE ] PERSON . CARDINAL , in which ORG said :

“ A breach of the defendant ’s right to have a criminal charge determined within a reasonable time , contrary to Article CARDINAL(CARDINAL ) of the ORG , will not necessarily require criminal proceedings to be stayed . It will only be appropriate to stay or dismiss proceedings if there can no longer be a fair hearing or it will otherwise be unfair to try the defendant ... Once there has been a conviction , this court should only quash that conviction if the hearing has proved to be unfair , or it was unfair to try the defendant at all . ”

Where an abuse of process is alleged , the burden of establishing that the bringing or the continuation of criminal proceedings amounts to an abuse of the court ’s process is on the accused : R v Telford Justices ex parte LOC [ DATE ] CARDINAL Q.B. CARDINAL ; R v ORG ex parte PERSON [ DATE ] Crim . L.R. CARDINAL . As a general principle of domestic GPE law , it will normally be necessary to prove not only that an abuse has taken place but that the accused has been prejudiced in the presentation of his or her case as a result , so that a fair trial is no longer possible . As Lord PERSON said in ORG hearing in Attorney General ’s Reference ( No CARDINAL of CARDINAL ) [ DATE ] CARDINAL A.C. DATE , ORG :

“ ... if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which can not otherwise be remedied , then of course a stay is an appropriate remedy . But in the absence of prejudice of that sort , there is normally no justification for granting a stay . ”

In the context of confiscation proceedings , in R v PERSON [ DATE ] PERSON DATE ORG held that :

“ CARDINAL . Once the ORG decides to invoke the confiscation process , the making of an order is mandatory , and its amount is arithmetically determined but can be moderated by judicial decision .

The court retains the jurisdiction to stay an application for confiscation , as any other criminal process , where it amounts to an abuse of the court ’s process . In the present context , that power exists where it would be oppressive to seek confiscation , or to do so on a particular basis .

This jurisdiction must be exercised with considerable caution , indeed sparingly . It must be confined to cases of true oppression . In particular , it can not be exercised simply on the grounds that the Judge disagrees with the decision of the ORG to pursue confiscation , or with the way it puts its case on that topic . ”

In the case of R v P [ DATE ] ORG ( ORG ) the applicant , having been convicted of criminal offending , had confiscation proceedings initiated against him . Moreover , he was subject to a restraint order which related to funds ORG believed could constitute the proceeds of criminal activity . Until a judicial determination had been made as to the source of those funds , the applicant was unable to employ them for the purposes of securing legal representation . The alternative was to rely upon state legal aid funding . HHJ Mole QC however accepted that , not least owing to the complexity of the case , if the applicant were to rely on the ORG legal aid fund , there was no prospect of him being able to engage properly qualified and competent counsel so as to ensure a fair trial . ORG Mole QC therefore stayed the confiscation proceedings as an abuse of process .


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

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

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

At the relevant time they were in detention ( u pritvoru ) at the Institution for the Execution of Criminal Sanctions ( Zavod za izvršenje krivičnih sankcija , hereinafter “ ORG ” ) , where they shared a cell with CARDINAL other detainees .

On DATE the first applicant was to be transferred to a disciplinary unit ( disciplinsko odjeljenje ) and the cell in which he was detained was to be searched . The submissions of the applicants and the Government as to what exactly happened on that occasion differ .

The first applicant submitted that after having entered his cell , several guards had grabbed him and thrown him on to the concrete floor of the corridor outside the cell . They had handcuffed him , beaten him using batons and their fists , and sworn at him . In addition , CARDINAL rows of guards positioned along the corridor had beaten him as he was being taken away .

The second applicant submitted that he had protested against this abuse . In response , CARDINAL guards had started to kick him and had beaten him with their fists and batons . After that he had been taken into the corridor outside the cell , where CARDINAL other guards had continued to beat him . The beating had continued after he had returned to the cell .

The Government , for their part , submitted that the applicants had resisted the actions of the prison guards and had tried to prevent them from performing their duties , which had triggered the PERSON intervention . In particular , when they had entered the cell the second applicant had attacked CARDINAL of the guards without any reason and had injured him .

The first applicant had refused to be examined by a prison doctor as he doubted his impartiality . On DATE , however , he had talked to the doctor and , in answer to the doctor ’s question whether he was feeling well and whether he had any injuries , he had apparently said “ No , doctor , I am healthy and both physically and psychologically stable , and I do not consent to an examination ; there is no need for it as I have not been ill - treated either physically or psychologically by the security forces ” .

The second applicant had been examined by the prison doctor after the Deputy Ombudsman had made a request to that effect . It would appear that the doctor made CARDINAL reports in this regard . The ORG , who obtained the reports from the ORG , described them as barely legible and apparently referring to the same subject matter in CARDINAL different ways .

On DATE the first applicant ’s representative in the domestic criminal proceedings reported the incident to the prison governor and requested that the appropriate responsible bodies be informed , that his client be provided with medical assistance , and that no further punitive measures be taken against him .

On an unspecified date before CARDINAL DATE the ORG prosecutor ( ORG državno tužilaštvo ) asked ORG ( PERSON ) in GPE to establish the elements of criminal offences of torture and ill - treatment ( predlog radi utvrđivanja elemenata bića krivičnog djela mučenje i zlostavljanje ) . Acting upon this an investigating judge ( istražni sudija ) from ORG requested , inter alia , the medical examination of both applicants by an external forensic doctor , and ordered evidence to be heard from a number of individuals , including the prison guards , and the second applicant .

On DATE an external forensic doctor examined the second applicant . He confirmed in his report that the second applicant had light body injuries , namely a DATE old haematoma ( krvni podliv ) measuring QUANTITY on the back of his left thigh and a haematoma on the lower lid of each eye . The doctor added that there was an undated medical report in the second applicant ’s file confirming the presence of bruises around his eyes . He emphasised that the medical documentation provided by the ORG was “ largely illegible ” . The first applicant refused an examination by the external forensic doctor , as the examination had apparently been ordered when his bruises were already fading .

On DATE , the first applicant ’s mother – during a visit – observed bruises on his face and haematomas on visible parts of his body . She reported this immediately to the prison administration ( PERSON zavoda ) . On DATE she lodged a criminal complaint ( krivična prijava ) with the competent ORG prosecutor against persons unknown , stating that the first applicant had CARDINAL bruises , one on his left temple DATE which was already fading – and another on one of his legs , and that he had also complained that he was having difficulty sitting .

On an unspecified date the second applicant ’s mother – who had been informed by CARDINAL of the detainees about what had happened – reported the incident to the ORG and visited her son . She observed that his eyes were closed and his face and visible parts of his body were covered in bruises . She reported this to the prison administration and asked that it be investigated . On DATE she lodged a criminal complaint with the police ( PERSON policije ) against persons unknown .

On DATE and CARDINAL DATE the ORG prosecutor asked ORG in GPE to investigate the complaints lodged on behalf of the second and first applicants respectively ( predlog za preduzimanje istražnih radnji ) . Acting upon this the investigating judge requested , inter alia , a video - recording from the prison , the identification of all the guards who had been involved in the cell search , and that the evidence be heard from a number of individuals , including the prison guards , other detainees in the cell , the first applicant , and the first applicant ’s representative in the domestic criminal proceedings .

The requested questioning ( see paragraphs CARDINAL in fine and CARDINAL in fine above ) took place DATE and DATE . CARDINAL of the detainees stated that they had seen the first applicant being beaten . Some of the guards stated that the first applicant had resisted being handcuffed by “ attempting to get out of [ their ] hands , cursing and swearing ” and , when on the floor , by kicking out ( “ gicao se i mlatio nogama i rukama ” ) . CARDINAL of the guards admitted “ hitting [ the first applicant ] once with a baton , as he continued to resist and kick ” . Another guard , who had seen the first applicant DATE after the incident , had observed a cut below his left eye as well as a visible injury to one of his legs .

When visiting his client DATE after the incident , the first applicant ’s representative in the domestic criminal proceedings had observed a bruise under one of his eyes , and a bruise on the calf of his left leg with a diameter of QUANTITY . He described him as frightened and “ mentally broken ” .

One of the guards stated that the second applicant had grabbed the collar of CARDINAL of his colleagues from behind , following which the guard in question had fallen over a bench . The guard had pushed him away and the second applicant had hit the wall and sunk to the floor ( pao je na zid i spustio se dolje na sjedalo ) . The guard stated that his colleague had not hit the second applicant . CARDINAL other guards confirmed this . The prison doctor stated that he had noticed a haematoma under the second applicant ’s eye . CARDINAL detainees confirmed that the second applicant had been beaten by several guards both in the cell and in the corridor . The applicants , for their part , repeated their allegations .

On DATE the ORG prosecutor rejected ( odbacio ) the criminal complaints against CARDINAL guards , GPE and PERSON , on the ground that even though they had used force by hitting the first applicant CARDINAL times and the second applicant once with a baton , they had done so in order to overcome the applicants’ resistance and thus acted within their powers ( u granicama službenog ovlašćenja ) . While the first applicant had not been examined by a doctor , the medical documentation of the second applicant confirmed that he had sustained light injuries . That being so , the prosecutor concluded that the force used had not infringed human dignity and that there were no elements of any criminal offence entailing prosecution ex proprio motu . The prosecutor ’s decision also identified other guards who had participated in the cell search . At the same time , the applicants were informed that they could pursue a subsidiary prosecution by lodging an indictment ( optužni predlog ) with ORG .

On DATE the lawyer retained by the applicants in respect of the complaints of alleged ill - treatment lodged an indictment for torture and ill - treatment which had resulted in severe bodily injuries ( teške tjelesne povrede ) against CARDINAL prison guards named in the previous decision , including GPE and GPE

On DATE the lawyer was informed by the first applicant that the video - recording obtained from the ORG by ORG did not show the entire incident , namely it omitted his being beaten by CARDINAL rows of guards in the corridor . He claimed , however , that another camera in the corridor must have recorded the beating and that the recording should be obtained from the prison authorities .

On DATE the lawyer asked the court to obtain a recording from another camera , but apparently without success .

On DATE ORG Instance decided that the applicants’ indictment was to be treated as a criminal complaint and , as such , was to be lodged with the ORG prosecutor .

On DATE the applicants appealed against the above decision . At the same time they also lodged a criminal complaint with the ORG prosecutor .

On DATE ORG rejected the ORG appeal on the ground that the ORG prosecutor had delivered a decision only in respect of GPE and PERSON and not the other guards .

On DATE the ORG prosecutor rejected the ORG criminal complaint on the ground that there were no elements of any criminal offence entailing prosecution ex proprio motu . At the same time the applicants were notified that they could pursue a subsidiary criminal prosecution by lodging a request for an investigation ( zahtjev za sprovođenje istrage ) with ORG .

On DATE the applicants lodged a request for an investigation with ORG .

On DATE ORG rejected ( odbacuje se ) a constitutional appeal by the applicants against the above decisions of ORG and ORG on procedural grounds . In particular , it considered that the ORG complaints were in substance about the criminal prosecution of other individuals and that DATE pursuant to the ORG ’s case - law – such complaints were incompatible ratione materiae with the Convention . It was also concluded that the decision of ORG did not represent an “ individual decision ” in respect of which ORG would be competent , but rather a procedural decision establishing whether the conditions were met for conducting an investigation in response to a direct indictment lodged by the applicants . In the impugned proceedings the courts had not decided on the merits of the request itself , but rather had ruled that the request should be treated as a criminal complaint .

On DATE ORG Instance dismissed the applicants’ request for an investigation on the grounds of lack of reasonable suspicion ( osnovana sumnja ) that the guards had tortured and ill - treated the applicants and that the force they had used had been necessary to overcome the applicants’ resistance . On DATE ORG upheld this decision .

On DATE and CARDINAL DATE the Deputy Ombudsman visited the applicants . She also spoke with other detainees from the same cell , who confirmed the first applicant ’s allegations . She noted that the second applicant , who had “ visible injuries on his head , especially around the eyes ” as well as on his legs , had asked that he be allowed to lodge a criminal complaint and to be examined by the prison doctor .

In its response to an inquiry from the ORG , the ORG stated that the second applicant had unjustifiably resisted and physically attacked guards who , in response , had used force and a baton to the extent necessary to overcome his resistance . The ORG also provided the doctor ’s reports in respect of the second applicant , which were described by the ORG as barely legible and from which it could be concluded that they dealt with the same subject matter , but had a different content .

In an opinion of DATE , the ORG found that the applicants’ rights had been violated on DATE . The opinion stated that they had offered no resistance and that there had been no justification for the use of force ( sredstva prinude ) , especially not to the extent and in the manner alleged . At the same time the ORG recommended that the ORG institute disciplinary proceedings against the guards responsible and report to the ORG within DATE on the measures taken .

On DATE disciplinary proceedings were instituted against CARDINAL prison guards , GPE , GPE and GPE On DATE they were found responsible and fined PERCENT of their salaries in DATE for abusing their position or exceeding their authority ( zloupotreba položaja ili prekoračenje ovlašćenja ) as they had used excessive force disproportionate to the resistance offered by the applicants on DATE . In particular , GPE had hit both applicants once with a rubber baton , GPE had kicked the first applicant , and PERSON had hit the second applicant on the lower part of the body with the baton . The applicants’ families and the ORG were informed about the outcome of the disciplinary proceedings and the ORG lawyer attended the hearing before the disciplinary commission .

CARDINAL other staff members who had participated in the cell search on the stated date , in relation to whom it was not proved that force had been used against the applicants , had apparently been transferred to other posts in other ORG units .

On DATE , during the parliamentary hearing of the prison governor ( see paragraph CARDINAL below ) , the ORG confirmed that the ORG administration had duly acted upon his recommendations within the set time - limit .

On DATE the applicants lodged a compensation claim against the ORG relying , inter alia , on LAW , and seeking QUANTITY ( ORG ) each for non - pecuniary damage caused by torture on DATE .

On DATE , after a remittal , ORG in GPE ruled partly in favour of the applicants by awarding ORG CARDINAL,CARDINAL each for non - pecuniary damage on account of violations of their rights and ORG CARDINAL for the costs of the proceedings . The court based its decision on section QUANTITY of LAW ( see paragraph CARDINAL below ) . In its reasoning the court took into account the statements of the applicants and the prison guards , medical findings , the video - recording , the fact that the CARDINAL prison guards had been found responsible in disciplinary proceedings for the disproportionate use of force and had been fined , and the fact that the applicants had offered resistance , thus contributing to the non - pecuniary damage . The court found that the guards had exceeded their powers but also explicitly held that such actions could not be qualified as torture or inhuman or degrading treatment .

On DATE ORG upheld this judgment . In so doing it did not disagree with the conclusion of the first - instance court as to the qualification of the impugned incident .

On DATE ORG partly overturned the previous decisions by awarding the applicants CARDINAL ORG each for non - pecuniary damage , together with the statutory interest . In so doing ORG held , inter alia , that the use of force by prison guards could not be justified by the applicants’ resistance and held that such action was in breach of fundamental values of every democratic society and degraded human dignity , but that it did not constitute torture or inhuman treatment . The applicants received this decision on DATE .

The applicants also maintain that they were threatened or abused DATE and DATE , in which regard their mothers lodged criminal complaints on DATE . On DATE the ORG prosecutor ( PERSON državni tužilac ) rejected the criminal complaint as regards the threat against the first applicant on the ground that no such incident had taken place . The criminal complaint in respect of the abuse alleged by the second applicant would appear to be still pending .

DATE and CARDINAL DATE the first applicant went on hunger strike , the reason being that disciplinary proceedings , with regard to the events of DATE , had been instituted against CARDINAL guards , who DATE according to him DATE were those least responsible for what had happened to him .

On an unspecified date in DATE the first applicant had a meeting with the prison governor . On that occasion he apparently suggested to show the prison governor the camera which had recorded the entire incident of DATE . The governor allegedly suggested that the first applicant draw a sketch instead .

On CARDINAL occasions the applicants complained to their lawyer that their ill - treatment had been continuous , and on CARDINAL occasion they threatened to commit suicide if the pressure on them did not ease . The lawyer informed ORG , the Minister of ORG , and the prison governor , requesting that disciplinary proceedings be instituted against those responsible .

On DATE and DATE the prison governor was questioned by the parliamentary ORG .

On DATE the parliamentary ORG submitted its report to ORG , CARDINAL of its conclusions being that “ there had been no torture or systemic violations of human rights in the ORG and that all the reported cases of the use of force and exceeding of powers had been sanctioned ” .

The applicants also submitted that they had been deprived of an effective domestic remedy because CARDINAL of the deputy ORG prosecutors at the time was the prison governor ’s daughter and the Deputy ORG was his wife .

The first applicant is currently serving CARDINAL prison sentences . He had been convicted CARDINAL times prior to this for various criminal offences . During his detention he had been subject to disciplinary sanctions CARDINAL times , and twice more while serving his prison sentence .


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

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

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


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE ORG ( FAC PERSON ; hereinafter “ the police ” ) lodged a criminal complaint with the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u GPE ) against the applicant , alleging that in DATE , as commander of a police unit , he had committed war crimes against the civilian population . They relied on extensive material obtained in the course of a preliminary investigation . An investigating judge of ORG ( Županijski sud u GPE ) was also informed of the case . The case immediately attracted wide media interest and coverage .

On DATE , based on the criminal complaint lodged by the police , the investigating judge questioned the applicant . The applicant contested the allegations of the police and decided not to give further evidence , stressing that he was suffering from health problems . He submitted extensive medical documentation showing that he had suffered a stroke in DATE .

Later on DATE , the GPE ORG Attorney ’s ORG requested the investigating judge to open an investigation in respect of the applicant on suspicion of war crimes against the civilian population , as alleged in the criminal complaint lodged by the police . It relied in particular on the material provided to the NORP authorities by ORG for the former GPE ( hereinafter “ the ORG ” ) concerning the crimes allegedly committed by a unit under the applicant ’s command .

Following the request of the GPE State Attorney ’s ORG , on DATE the investigating judge questioned the applicant . The applicant decided to remain silent and refused to give any evidence .

On DATE the investigating judge opened an investigation in respect of the applicant on suspicion of war crimes against the civilian population . The investigating judge found , on the basis of the available material , that there was a reasonable suspicion that in the period DATE , in his capacity as commander of a police unit , the applicant had ordered arbitrary arrests , ill - treatment and the killing of a number of civilians , and that , by not taking the necessary measures to prevent and punish those responsible , he had consented to a number of other arbitrary arrests , the unlawful confiscation of property , ill - treatment and the killing of civilians by his subordinates .

During the investigation the investigating judge heard evidence from CARDINAL witnesses and requested international legal assistance from the NORP authorities in obtaining evidence from the witnesses . He also obtained a number of relevant reports on the DNA analyses of the GPE remains , as well as exhumation and autopsy reports , and various documents concerning the actions of the unit under the applicant ’s command .

On the basis of the evidence obtained during the investigation , on DATE the GPE State Attorney ’s Office indicted the applicant in ORG on charges of war crimes against the civilian population . The indictment listed CARDINAL counts of arbitrary arrest , unlawful confiscation of property , ill - treatment and the killing of civilians . The relevant part of the indictment concerning the applicant ’s participation in those acts reads :

“ In the period DATE and DATE , in GPE and PERSON , during an international armed conflict between the forces of GPE and the former [ ORG ] and the paramilitary NORP forces , assisted by volunteer fighters from other parts of the former GPE , contrary to ORG , CARDINAL § CARDINAL ( a ) and ( c ) , CARDINAL and CARDINAL of LAW relative to ORG in Time of War of CARDINAL DATE and LAW ( a ) , QUANTITY and DATE and CARDINAL of the LAW additional to LAW of CARDINAL DATE , and relating to the protection of victims of international armed conflicts ( Protocol I ) , as an official in ORG and the commander of the reserve unit of ORG stationed in PERSON and partially in GPE , where it had its compound , and thereby authorised to command his subordinates and responsible for the application of rules of international humanitarian law concerning the protection of civilians , ordered the unlawful deprivation of liberty , torture and killing of certain civilians , and when he was not present in the field , although aware that his subordinates were acting unlawfully by arbitrarily depriving civilians of their liberty , robbing , ill - treatment , torture , causing physical harm and killing civilians , did not take the necessary measures to prevent or suppress such unlawful actions , thereby accepting that his subordinates continue with such acts and condoning their consequences ... ”

On DATE the applicant lodged an objection against the indictment , arguing that it was not supported by any relevant evidence .

On DATE a CARDINAL - judge panel of ORG dismissed the applicant ’s objection against the indictment as ill - founded on the grounds that there was sufficient evidence supporting the conclusion that there was a reasonable suspicion that he had committed the offences for which he had been charged .

On DATE the ORG commissioned an expert report concerning the possibility of the applicant following the trial .

In a report of DATE a court expert found that with the appropriate accommodation arrangements and medical supervision , the applicant could follow the trial .

In the further course of the proceedings a number of hearings were held before ORG . A hearing held on DATE was adjourned to DATE due to deterioration in the applicant ’s health during the questioning of a witness . A hearing held on DATE was also adjourned due to the applicant ’s state of health .

The criminal proceedings against the applicant are still pending .

The applicant was arrested on DATE in connection with the criminal complaint lodged against him by the police ( see paragraph CARDINAL above ) .

On DATE , having questioned the applicant ( see paragraph CARDINAL above ) , the investigating judge of ORG ordered his remand in custody for a further TIME on the grounds that he might try to influence the witnesses and on account of the gravity of the charges . The investigating judge noted in particular that some QUANTITY witnesses needed to be questioned and that the allegations of war crimes against the civilian population imputed to the applicant were of a particularly serious nature , involving killings and severe ill - treatment .

On the order of the investigating judge and because of the applicant ’s medical condition ( see paragraph CARDINAL above ) , he was placed in a prison hospital . Later during his confinement he was also treated in a special rehabilitation hospital in GPE .

On DATE the investigating judge ordered that the applicant be remanded in custody for a further day .

On DATE the investigating judge ordered the applicant ’s pre - trial detention for DATE under LAW ( CARDINAL ) and ( CARDINAL ) of LAW ( risk of collusion and gravity of charges ) , reiterating his previous arguments .

NORP The applicant appealed against the decision of the investigating judge before a CARDINAL - judge panel of ORG , invoking his state of health and arguing that DATE had passed since the alleged crimes had taken place .

On DATE a CARDINAL - judge panel of ORG dismissed the applicant ’s appeal as unfounded . The relevant part of the decision reads :

“ It is firstly to be noted that in connection with the offences imputed to the defendant , in particular concerning the acts of the reserve [ police ] forces under his command , the questioning of a number of victims and witnesses , who have the relevant knowledge about the events from the period at issue , has been requested . Irrespective of the time that has passed since the period at issue , the defendant , who has only recently been informed of the facts of the offences forming the charges against him , if at large is likely to try to contact the [ following ] witnesses ... [ These witnesses ] still feel distress and fear and [ the defendant could ] , in order to minimise his criminal responsibility , directly or indirectly influence their statements and thereby hinder the proper course of the investigation . Therefore , in order to avert the collusion , the investigating judge properly ordered the defendant ’s pre - trial detention under LAW ( CARDINAL ) of LAW .

Furthermore , in view of the manner in which the war crimes against the civilian population under LAW were allegedly committed by the defendant , and which are punishable by DATE imprisonment , the investigating judge correctly found that the circumstances of the offences were particularly grave , warranting pre - trial detention under LAW ( CARDINAL ) of LAW . These particularly grave circumstances of the offences concern , in the view of this panel , the manner in which the civilians ... were unlawfully and arbitrarily deprived of their liberty , how their property was confiscated without any legal basis , how they were physically and mentally ill - treated ( often by the use of electric shocks ) and eventually killed ; and the fact that some of these unlawful acts were committed on the basis of the defendant ’s orders , while the others he did not prevent although he was aware of them ... ”

On DATE the investigating judge extended the applicant ’s detention for a further DATE under LAW ( CARDINAL ) and ( CARDINAL ) of LAW ( risk of collusion and gravity of charges ) . He found that some more witnesses needed to be questioned and reiterated his previous findings concerning the gravity of the charges against the applicant .

The applicant appealed against that decision and on DATE a CARDINAL - judge panel of ORG dismissed his appeal as ill - founded , reiterating its previous arguments .

The investigating judge extended the applicant ’s detention on DATE for a further DATE , relying on LAW ( CARDINAL ) and ( CARDINAL ) of LAW ( risk of collusion and gravity of charges ) . He found that CARDINAL witnesses still needed to be questioned and that the arguments concerning the gravity of the charges were still valid .

The applicant appealed against that decision , reiterating his previous arguments , and on DATE a CARDINAL - judge panel of ORG dismissed his appeal as ill - founded , relying on the same grounds as those in its previous decisions .

On CARDINAL DATE the investigating judge extended the applicant ’s detention for DATE under LAW ( CARDINAL ) and ( CARDINAL ) of LAW ( risk of collusion and gravity of charges ) , reiterating his previous arguments concerning the gravity of the charges and finding that CARDINAL more witnesses needed to be questioned .

The applicant appealed against that decision and on CARDINAL DATE a CARDINAL - judge panel of ORG dismissed his appeal as ill - founded , noting in particular that , in view of the gravity of the charges imputed to the applicant and given that he had been detained for DATE , there was still a predominant interest in keeping him in detention . It also considered that he should be remanded in custody until all the witnesses had been questioned .

Following the submission of the indictment against the applicant to ORG ( see paragraph CARDINAL above ) , on DATE a CARDINAL - judge panel of that court extended the applicant ’s detention pending trial under LAW ( CARDINAL ) of LAW ( gravity of charges ) . The relevant part of the decision reads :

“ When assessing whether further extension of the detention is needed under LAW § CARDINAL ( CARDINAL ) of LAW , the panel looked into the facts of the indictment and found that there was a reasonable suspicion that the accused PERSON , in the period between CARDINAL DATE and DATE , as an official and the commander of the reserve unit of ORG , authorised to command his subordinates , ordered the unlawful deprivation of liberty , torture and killing of certain civilians . When he was not present in the field , although aware that his subordinates were acting unlawfully by arbitrarily depriving civilians of their liberty , robbing , ill - treatment , torture , causing physical harm and killing civilians , he did not take the necessary measures to prevent and suppress such unlawful actions , therefore accepting that his subordinates continue with such acts and condoning their consequences .

Furthermore , the perpetrators – members of the accused ’s unit – took money and valuables from their victims ( cars , jewellery , household appliances etc . ) and subsequently exposed them to brutal torture , such as electric shocks through an induction telephone , cutting open muscles and wiring open wounds , severe beatings , physical ill - treatment , degrading treatment and locking them in rooms without beds or toilets . In addition , the charges against the accused also concern an incident in which members of the unit under his command killed a DATE girl ORG by firing CARDINAL bullets into her head , together with her mother PERSON , both of whom had been taken away after her father , ORG , had been killed in their doorway in Z.

Consequently , and bearing in mind the extent of the unlawful actions which there is a reasonable suspicion that the accused committed and in particular the number of victims , which was , according to the facts of the indictment , CARDINAL , all of them civilians , who were brutally tortured , robbed and killed or who have disappeared , the panel finds that the perpetrator acted with extreme cruelty , brutality , persistence and an extraordinary degree of criminal intent .

All of the above - mentioned circumstances , in the opinion of this panel , represent particularly grave circumstances that overcome the usually grave circumstances pertinent to such offences . Therefore , the detention is necessary under LAW ( CARDINAL ) of LAW ... ”

The applicant appealed against that decision to ORG ( PERSON ) , challenging the necessity of his detention and alleging a number of substantive and procedural flaws .

On DATE ORG dismissed the applicant ’s appeal , upholding the decision of ORG . ORG in particular noted :

“ ... the finding of the first - instance court that the grounds for further detention of the accused under LAW ( CARDINAL ) of LAW still exist is correct .

The indictment shows a relevant degree of reasonable suspicion that the accused committed the criminal offence under LAW , by which the general statutory condition under LAW has been fulfilled .

According to the indictment ... the behaviour of the accused , in the view of this second - instance court , significantly surpasses the ordinary circumstances and consequences of such offences , and represents particularly grave circumstances of the offence allegedly committed by the accused which warrant detention under LAW § CARDINAL(CARDINAL ) of LAW .

In his appeal , the accused alleged that there had been a serious breach of criminal procedure , without specifying his argument . In this regard , the second - instance court was unable to find breaches that should have been examined ex officio .

The appeal argument of errors of facts is also unfounded , since the first - instance court fully determined the facts and gave detailed , valid and clear reasons for its findings , which this second - instance court fully accepts .

The accused also relied on the case - law of ORG in its decision ORG of DATE and LAW [ of the LAW ] , arguing that deprivation of liberty before a final judgment is a particularly sensitive issue , and that such detention should not turn into a prison sentence . Thus , [ according to the accused ] it can be ordered only when there is a high probability that guilt will be established and a sentence imposed , in cases where there is a reasonable suspicion that the accused has committed a criminal offence and only for the purposes of the proper conduct of the proceedings , conditions which had not been met in the case at issue .

Contrary to the appeal arguments , the extension of detention under LAW ( CARDINAL ) of LAW is not contrary to LAW Detention under LAW ( CARDINAL ) of LAW has a preventive purpose , namely the deprivation of liberty of the perpetrators of such serious crimes that , if they would be at large , the reputation of the judiciary and the public ’s faith in it would be diminished ; its purpose is not to avert the risk of the proceedings being hindered .

The poor state of health of the accused does not call into question the reasonableness of his detention , since adequate medical care , bearing in mind that he suffers from a chronic disease , can be offered to him in detention , that is to say in the prison hospital . ”

The applicant challenged the decision of ORG before ORG ( Ustavni sud PERSON ) , arguing that ORG had failed to provide relevant and sufficient reasons for his prolonged pre - trial detention .

On DATE ORG dismissed the applicant ’s constitutional complaint as ill - founded , endorsing the decisions of ORG and ORG . The relevant part of the decision reads :

“ In view of the competence of ORG as the highest court ensuring the coherent application of the law and the equality of everyone in its application ( LAW § CARDINAL of the LAW ) , the likelihood of a prison sentence within the given term and the particularly grave circumstances of the offence , ORG finds that ORG and ORG satisfied the relevant opinions and requirements when extending the pre - trial detention under LAW CARDINAL ( CARDINAL ) of LAW ... ”

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention under LAW ( CARDINAL ) of LAW ( gravity of charges ) , reiterating its previous arguments .

The applicant appealed against that

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention under LAW ( CARDINAL ) of LAW ( gravity of charges ) on the grounds that the reasons warranting his detention still persisted .

NORP The applicant appealed against that decision and on DATE ORG dismissed his appeal as ill - founded , endorsing the reasoning of ORG .

The applicant ’s detention was further extended on DATE by a decision of a CARDINAL - judge panel of ORG , relying on LAW ( CARDINAL ) of LAW ( gravity of charges ) and reiterating its previous arguments .

The applicant challenged that decision before ORG and on DATE ORG dismissed his appeal as ill - founded on the grounds that no doubts had been raised as to the findings of ORG .

The applicant then lodged a constitutional complaint before ORG , arguing that his detention was no longer justified and proportionate .

On DATE ORG dismissed the applicant’ ’s state of health , when deciding whether his pre - trial detention should be extended .

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention under LAW ( CARDINAL ) of LAW ( gravity of charges ) , finding that the circumstances warranting his detention still persisted . With regard to the applicant ’s state of health , it indicated that so far , nothing suggested that he could not receive appropriate medical treatment in detention .

The applicant appealed to ORG alleging lack of appropriate reasoning in the decision of ORG to extend his pre - trial detention .

On DATE ORG accepted the applicant ’s appeal and remitted the case to ORG on the grounds that it had not established all the relevant facts concerning the health care provided to the applicant in detention .

In compliance with the order of ORG , a CARDINAL - judge panel of ORG re - examined the case . On DATE it extended the applicant ’s detention under LAW ( CARDINAL ) of LAW ( gravity of charges ) . With regard to the applicant ’s state of health , it noted that he was receiving appropriate medical treatment in detention .

The applicant challenged that decision before ORG . On DATE ORG accepted his appeal and remitted the case for re - examination on the grounds that the decision of ORG lacked relevant reasoning .

On DATE a CARDINAL - judge panel of ORG revoked the decision on the applicant’ the quality of the medical treatment which he was receiving in detention was not adequate . Since that could raise an issue under LAW , ORG considered that he should be released pending trial . It stressed in particular :

“ Thus , in the concrete case priority should be given to the values protected by LAW because the public interest is reflected not only in the grounds for detention under LAW ( CARDINAL ) of LAW but also in the protection and application of the values provided for under the cited provision of LAW . In this respect , the time that has elapsed since according to the indictment the offence was committed should be noted , and in particular the period which the accused has spent in detention , as well as the likely duration of the criminal proceedings . ”


CASE OF MIŠKOVIĆ v. BOSNIA AND HERZEGOVINA

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

The applicant lives in GPE .

By a judgment of ORG of DATE which became final on DATE , PERSON ( an Entity of GPE and GPE ) was ordered to pay , within DATE , MONEY ( BAM ) in respect of non - pecuniary damage and BAM CARDINAL in respect of pecuniary damage together with default interest at the statutory rate to the applicant .

The Banja Luka Court of First Instance issued a writ of execution ( rješenje o izvršenju ) on DATE .

The applicant complained of non - enforcement to ORG the LAW ” ) . On DATE ORG found a breach of LAW No . CARDINAL to the LAW . The applicant did not claim compensation , but even if she had done so , her claim would most likely have been refused ( see , for example , ORG decisions ORG CARDINAL of DATE , § CARDINAL ; ORG CARDINAL of DATE , § CARDINAL ; ORG CARDINAL of DATE , § CARDINAL ; ORG CARDINAL of DATE , § DATE ) .

After the extensive information campaign explaining the available options for the settlement of ORG public debt ( including its debt arising from domestic judgments ) , on DATE the applicant informed the authorities that she agreed to be paid the principal debt and default interest in bonds . Government bonds were then issued to the applicant on CARDINAL DATE . On DATE the applicant sold all of her bonds on ORG .


Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

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


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Georges Ravarani

The applicants are NORP nationals , who were both born in DATE . The first applicant , Mr ORG , was detained in the Bolu F - type prison and the second applicant , PERSON , was detained in the PERSON prison when the present applications were lodged .

On DATE the Bolu prison disciplinary board decided to withhold the first applicant ’s letter addressed to ORG in GPE on the ground that the letter contained defamatory statements . The disciplinary board based its decision on DATE ( CARDINAL ) of PERSON no . CARDINAL on the execution of sentences and preventive measures .

On DATE the Bolu Enforcement Judge dismissed the applicant ’s objection . Subsequently , on CARDINAL DATE ORG dismissed a further appeal lodged by the applicant .

On DATE the PERSON prison disciplinary board decided to withhold the second applicant ’s letter addressed to a journalist , on the ground that the letter contained statements praising a terrorist organisation ( ORG ) and its leader . The disciplinary board based its decision on LAW no . DATE on the execution of sentences and preventive measures and LAW on prison management and execution of sentences .

On DATE the Kırıkkale Enforcement Judge dismissed the applicant ’s objection , and on DATE ORG dismissed a further appeal lodged by the applicant .

A full description of the domestic law and practice at the relevant time may be found in PERSON v. GPE ( ( dec . ) , no . CARDINAL , § § DATE , DATE ) .


CASE OF TURTURICA AND CASIAN v. THE REPUBLIC OF MOLDOVA AND RUSSIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property) (Russia);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations) (the Republic of Moldova);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicants were born in DATE and DATE respectively and live in LOC and PERSON , in the NORP region of GPE .

The background to the case , including the NORP armed conflict of DATE and the subsequent events , is set out in ORG and Others v. GPE and GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL , ORG CARDINAL ) , and in GPE and Others v. GPE and GPE ( [ ORG ] , ORG . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , § § DATE , ECHR DATE ) .

The present case concerns the confiscation and/or fining of the applicants for their failure to observe customs rules imposed by the authorities of the self - proclaimed “ GPE ( the “ FAC ) .

Both applicants used cars registered with the authorities of GPE and had NORP registration plates . Like many other inhabitants of the “ FAC , the applicants refused to use registration plates issued by the “ FAC authorities , which are not recognised by any country and which means that cars registered with them can not leave the territory of GPE . In DATE , the “ FAC authorities adopted new rules , according to which any car with non - TIME registration plates could only enter the territory of the “ FAC ” after the payment of customs duties for temporary entry into the “ FAC . Failure to observe the new rules was punished with a fine which could be as high as the full value of the car .

On DATE the applicant was driving a car ( the first car ) from his village to the right bank of the Dniester river when he was stopped by a customs officer of the “ FAC , who seized his car on the grounds that such a car with NORP plates had not been registered with the “ FAC customs authorities and no customs duties had been paid for its temporary use on the territory of the “ FAC . By a decision of DATE by the chief of the Dubasari ( “ FAC ) customs office , the applicant was ordered to pay a fine of MONEY , equal to PERCENT of the value of the car , in order to be able to recover it .

On an unspecified date , the applicant borrowed a car from a friend ( the second car ) , which also had GPE number plates , and registered it with the “ FAC customs authorities by paying customs duties . The registration was due to expire on DATE . On DATE of the expiry , since the applicant was ill , he sent his son to prolong the car ’s registration period with the “ FAC customs authorities . However , registration of the car was refused on the grounds that the applicant had to be present in person . The applicant went DATE , only to have his car seized for failure to register it within the allocated time - limit . By a decision of DATE of the NORP customs office the applicant was ordered to pay CARDINAL Transdniestrian roubles , an amount which was equal to PERCENT of the value of the car , in order to be able to recover it .

The applicant challenged the decision of CARDINAL DATE before the courts of the “ FAC and argued , inter alia , that he had been going through the customs check - point since DATE and that nobody had informed him about the need to pay any customs duties . Moreover , the last time he had crossed the customs check - point had only been DATE prior to the confiscation of his car .

By a decision of CARDINAL DATE the NORP district court rejected the first applicant ’s challenge to the decision of the NORP customs office of CARDINAL DATE concerning his first car . As a result , the applicant decided not to challenge the decision of DATE in the “ FAC courts .

The applicant also complained to the NORP authorities , which initiated criminal proceedings in respect of the unlawful seizure of his car . According to the materials submitted by ORG , the criminal investigation was suspended on DATE because the perpetrators could not be identified .

It appears from the case file that the applicant never recovered his cars from the “ FAC authorities .

The applicant had his car seized on DATE on the grounds that he had failed to leave the territory of GPE before the registration with the “ FAC customs authorities had expired . He was obliged to pay the equivalent of MONEY ( ORG ) in order to be able to recover his car . The applicant paid the money and had his car returned on DATE . He did not contest the decision of the “ FAC customs authorities before the “ FAC courts .

The applicant also complained to the authorities of GPE . It appears that on DATE the NORP chief police officer addressed a letter to the co - chair of ORG ( “ the ORG ” ) ( see paragraph CARDINAL below ) , informing him about the incident of CARDINAL DATE , and that the NORP initiative to examine the matter of the second applicant ’s car had been ignored by the other members of the ORG , including the NORP representative .

In a letter dated CARDINAL DATE , the Reintegration Minister of GPE informed the second applicant about the refusal of the NORP and NORP members of the ORG , to examine the incident relating to the seizure of his car . The second applicant was also informed that ORG had brought the applicant ’s case to the attention of GPE , ORG and NORP ambassadors to GPE . A general issue concerning respect for human rights in GPE was raised by the NORP representative to the FAC on DATE .

In a letter dated DATE , the applicant was informed by ORG of GPE that it did not have the necessary means to solve the problem of the seizure of his car by the “ FAC authorities .


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

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

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

On DATE the applicant was placed in pre - trial detention on suspicion of having committed drug - related crimes . He was convicted on DATE by ORG and sentenced to DATE imprisonment . The decision became final on DATE .

The applicant was held in the pre - trial detention facilities of ORG until DATE . On DATE he was transferred to ORG , where he remained until CARDINAL DATE .

He described the overall conditions of detention as follows : overcrowded cells , lack of natural light and lack of fresh air . In particular he described cells that measured QUANTITY m and were QUANTITY high ; each cell containing CARDINAL beds constantly occupied at full capacity ; there was no natural light , only artificial light provided by QUANTITY bulb which was insufficient ; he had no access to fresh air . There was no refrigerator to store food in proper conditions . He shared cells with individuals arrested for violent crimes and there had been no means of summoning the guards , even though several violent incidents had taken place between the detainees .

According to the official prison records adduced by the ORG , in the police detention facilities the applicant had been placed in cells situated in the basement ( demisol ) , the first measuring QUANTITY and containing CARDINAL beds and the second measuring QUANTITY . m and having CARDINAL beds . The cells were occupied at full capacity . The cells had a table and chairs as well as a squat toilet , sink and shower separated from the living space by a curtain . The detainees had access to running water , and the cells were heated during DATE . There was access to natural light , as each cell was provided with a window , but also to artificial light provided by a lamp placed in each cell , above the door , and protected by an iron grille . Personal hygiene was effected by means of products provided by the prison or acquired by the detainees themselves .

According to the same official information , in LOC the applicant had been held in different cells , all measuring QUANTITY . m and containing CARDINAL beds ( except for one cell where there were CARDINAL beds ) , a table , chairs and a support for a TV set . Adjacent to the cell there was a bathroom equipped with a toilet , sinks and a shower . Cold water was available continuously and hot water was available DATE . The cell was heated to CARDINALoC during DATE . The applicant was allowed to exercise for TIME DATE in the interior courtyard and had access to outdoor and indoor sport facilities .


CASE OF MAXIAN AND MAXIANOVÁ v. SLOVAKIA

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

Ján Šikuta;Luis López Guerra;Nona Tsotsoria

The applicants are spouses . They were born in DATE and DATE respectively and live in GPE , GPE .

On DATE the applicants brought an action seeking dissolution of joint ownership of a real estate before ORG ( file no . CARDINALC CARDINAL/CARDINAL ) .

On DATE , at its fifth hearing , ORG delivered a judgment . The defendant appealed . The applicants requested ORG to give a supplementary judgment . On DATE the case file was submitted to ORG .

On DATE ORG returned the case file to the first - instance court as incomplete . On DATE ORG gave a supplementary judgment and on DATE the case file was again submitted to ORG .

In DATE ORG stayed the proceedings for DATE pending the outcome of inheritance proceedings after the defendant had died .

On DATE ORG quashed the first - instance judgment and remitted the case to ORG for a new determination .

On DATE the applicants complained before ORG about the length of the proceedings before ORG .

On DATE ORG approved the friendly settlement of the case reached between the parties . This decision became final on DATE .

On DATE ORG declared the applicants’ complaint inadmissible as being manifestly ill - founded ( case no . ORG ) . It held that there had been no significant delays in the proceedings before ORG in breach of LAW and its constitutional equivalent .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

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


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

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

The applicant was born in DATE and lived until his arrest in the village of GPE , in LOC . He is serving a sentence in a correctional colony in the town of GPE , in LOC .

Arrested in DATE on suspicion of aggravated robbery , the applicant was convicted on DATE and sentenced to DATE and CARDINAL months’ imprisonment . On DATE the applicant was also convicted of aggravated fraud and sentenced to DATE .

On DATE a blood test revealed that the applicant had contracted HIV . Tests conducted on previous occasions , in particular in DATE and DATE when the applicant was transferred to correctional colony no . CARDINAL , medical penal facility no . CARDINAL and a temporary detention facility in the town of GPE , were all negative .

Believing that he had contracted the virus during medical procedures in detention facilities , the applicant lodged an action with ORG , seeking compensation from the detention facility authorities for causing him to become HIV - positive .

On DATE ORG , acting as a court of final instance , disallowed the action , having found that the applicant had not complied with the procedural requirements for lodging it . He did not name a public official who could have been responsible for his having contracted the virus , he did not indicate his home address , he did not pay a court fee , and so on .

The applicant sent a complaint to ORG of LOC , asking for criminal proceedings to be instituted against detention facility personnel . He argued that he had become HIV - positive as a result of negligence on the part of the prison medical staff .

On DATE a deputy head of the ORG readdressed the complaint to ORG .

On DATE the first deputy prosecutor of LOC returned the applicant ’s complaint to ORG of LOC , informing it that there were indications of a possible criminal offence and that a thorough inquiry into the matter should be conducted .

DATE ORG redirected the applicant ’s complaint to the head of the GPE regional police department , seeking an inquiry into the circumstances causing the applicant to become HIV - positive .

In DATE the applicant received a letter from a ORG deputy prosecutor , informing him that his request for institution of criminal proceedings against detention officers had been examined and refused on DATE . The applicant lodged a claim with ORG , complaining that the investigating authorities had failed to look closely into what had caused him to contract the virus . On DATE ORG discontinued the examination of the complaint , noting that on DATE the decision of DATE had been overturned by the investigation authorities as premature and a new inquiry had commenced . The outcome of those proceedings is unknown .

NORP In DATE specialists from the Hygiene and Epidemics Centre of ORG conducted an inquiry for the purpose of establishing the transmission mode of the applicant ’s HIV infection . They studied the applicant ’s medical record and interviewed him . Having observed that the applicant had never travelled abroad , had not been a blood , tissue , organ or sperm donor or recipient , had not used drugs , had not had any sexual contacts in detention , and had not suffered from any sexually transmitted diseases apart from the HIV infection , the specialists stated that it was impossible to establish the exact way in which the applicant had contracted the virus . At the same time , they noted that in DATE and in DATE the applicant had undergone invasive medical procedures in penal facilities . Those procedures were performed in response to the applicant ’s self - harming . In addition , the large number of tattoos on the applicant ’s body did not escape the attention of the specialists . They described the tattoos as “ home - made ” , and stated that the most recent one had been done in DATE .

The applicant submitted that after he had been diagnosed as HIV - positive his treatment had been extremely erratic and insufficient . His antiretroviral therapy included CARDINAL drugs , PERSON and LAW . When the treatment was amended with another drug the applicant ’s condition deteriorated ; he began to experience loss of consciousness , dizziness and nausea . The applicant submitted that the change in the treatment had been authorised by physicians from colony no . CARDINAL . An infectious diseases specialist had not been consulted . When he was transferred to colony no . CARDINAL the applicant asked for his previous chemotherapy regime to be reinstated , given the extremely serious side effects he was experiencing following the change in the treatment regime ; CDCARDINAL cell counts were showing rapid growth in the viral load .

The Government provided the ORG with a copy of the applicant ’s medical record drawn up after his detention at the police station in the town of GPE on DATE . On DATE a blood test taken for HIV infection was negative . HIV tests on DATE and DATE , DATE and CARDINAL DATE all produced the same result . Each test was preceded by a consultation with a prison doctor . A report was drawn up as a result . The reports showed that the applicant had denied using drugs , having sexual relations , including homosexual sexual contacts , and had had no blood transfusions .

On DATE the applicant complained to a prison surgeon of severe stomach pain . He explained that on DATE he had swallowed a long nail . An X - ray examination of the applicant ’s abdominal area showed CARDINAL metal nails CARDINAL and QUANTITY long respectively . He was immediately admitted to the surgical department of the prison hospital . Subsequent examinations showed no urgent need for surgery ; the applicant also refused surgical treatment . After examination and treatment in the hospital the applicant was released on DATE with CARDINAL nail remaining in his body . He was to stay under supervision in the colony medical unit .

The applicant underwent clinical blood tests in DATE . No HIV test was carried out on that occasion .

NORP In DATE the applicant broke his arm and was treated in the colony medical unit with the assistance of a surgeon from the GPE hospital .

On DATE the applicant refused to have an HIV test .

In DATE the applicant applied for medical assistance , complaining of coughing blood , stomach pain and dizziness . He explained that he had swallowed a QUANTITY - long metal wire as a way of protesting against the internal rules of the colony . The applicant received treatment and was seen by a surgeon from the GPE town central hospital . An X - ray performed DATE showed that the wire had exited the applicant ’s body . The applicant nevertheless stayed in the hospital for DATE . A test performed in the hospital on DATE showed that the applicant was HIV - positive . Another test on DATE confirmed that result .

Following the tests the applicant consulted a psychiatrist , who explained to him the nature of the HIV infection and the methods for treating it , and warned him that knowingly transmitting it was a criminal offence . He was also told about the necessity to adhere to the antiretroviral treatment which he had not yet started receiving , and was informed of the negative consequences of stopping the treatment . The doctor also questioned the applicant about how he might have been infected with the virus . The applicant denied having sexual relations and using drugs . The doctor noted the large number of tattoos on his body . The final diagnosis given to the applicant on his release from the hospital on DATE was HIV infection in the third stage and sub - clinical form . The doctor recommended clinical blood and urine tests , biochemical blood analysis , CDCARDINAL and CDCARDINAL cell counts , consultations with an infectious diseases specialist , and close medical outpatient supervision .

On DATE the applicant cut his left forearm . A prison nurse treated the wound and made an entry in the applicant ’s medical record noting her suspicion that the applicant had actually bitten his forearm and had broken the vein with his teeth . The applicant continued receiving treatment in the medical unit until DATE .

On DATE the applicant was seen by a prison doctor , who repeated the recommendations given on DATE .

On DATE another blood test confirmed the HIV infection . The applicant also tested positive for hepatitis C.

DATE the applicant was seen CARDINAL times by a prison doctor following complaints of severe headaches , dizziness and nausea . He was treated for arterial hypertension .

In DATE the applicant was subjected to a number of immunological tests , including a CDCARDINAL cell count which showed slightly over CARDINAL cells / mmCARDINAL . On DATE an infectious diseases specialist examined the applicant . Noting a decrease in the CDCARDINAL cell count and rapid growth of the viral load , the doctor recommended commencing antiretroviral therapy with PERSON , a fixed - dose combination of the drugs zidovudin ( Retrovir ) , lamivudine ( NORP ) , and Stocrin ( PERSON ) . Another round of immunological testing was to be performed in DATE . The doctor gave extensive information on the treatment , its schedule and its side effects . The applicant was again reminded about the negative consequences of stopping the treatment . The applicant signed a statement recording the main details of that consultation .

On DATE the applicant started antiretroviral treatment . An immunological test performed on DATE showed an increase in the viral load . The Government provided a record of the DATE schedule showing the medicines taken by the applicant under the supervision of the prison nurses .

In DATE and DATE the applicant was seen at least once DATE by a prison doctor or nurse . In DATE that followed regular medical consultations were continued .

DATE and DATE the applicant was in the clinical treatment ward of the prison hospital . He was given clinical blood and urine tests , visual examinations , biochemical blood analysis , chest X - rays and an electrocardiogram . He continued his chemotherapy regime , comprising antiretroviral drugs , hepatoprotectors , vitamins and antispasmodics . He was released from the hospital under active supervision by doctors from the colony medical unit . Recommendations also included the addition of CARDINAL drugs , GPE and PERSON , to the antiretroviral treatment , and immunological testing DATE .

When he returned to the colony the applicant complained to a prison doctor about the side effects of the new drugs , and requested in writing to be placed back on the previous treatment regime . A certificate issued by the colony director on DATE showed that the treatment had been and was continuing to be maintained without any interruptions . The certificate also indicated that the applicant ’s health had improved as a result of the antiretroviral treatment .

It appears from the applicant ’s submissions that the most recent CDCARDINAL cell count was performed in DATE .


George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

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

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

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

The applicant is ethnically a NORP originating from GPE in GPE , close to Urmia ( Orumieh ) . The applicant had difficulties as a NORP to enter university in GPE and he was disappointed by the position of NORP in GPE in general . For that reason he joined ORG of Kurdistan ( PJAK ) late in DATE , soon after it was founded . He described himself as a regular but active member of the party . His activism included distributing material and information about the party , recruiting new members and accommodating visiting party members at his house , but not taking part in any armed activities . His family members have also been supporters of the NORP cause .

In DATE the applicant ’s neighbour apparently pretended to want to join the PJAK and managed to obtain important information about the party ’s recruitment . Subsequently , he informed the ORG about the applicant ’s activities . Since then ORG has allegedly been looking for the applicant and CARDINAL other party members . CARDINAL of the other party activists were caught and arrested and the other CARDINAL fled to the mountains to join the PJAK armed group . The applicant managed to escape , with a smuggler ’s help , to GPE and from there through GPE and GPE to GPE , where his sister is residing permanently .

The applicant claims that if he returns to GPE , he will never be free again since it is possible that the authorities arrest him and he might be killed . He also stated that the NORP police have taken his father twice for questioning since he left the country but his father has never told him why . The applicant was arrested once during the religious feast of the Shiite Muslims DATE , but has never been formally punished or ill - treated by the NORP authorities .

The applicant has submitted CARDINAL documents which were translated from NORP or NORP to NORP in DATE by an official translator . The first is entitled “ Warning Announcement ” in which the applicant is apparently called to appear before the Iranian Islamic Republic ’s Court for reasons of his cooperation with the PJAK , causing insecurity in the area and encouraging youngsters in the area to join the NORP political parties .

The second document is a certificate from the PJAK representative in LOC , PERSON , who confirms that the applicant joined the party in DATE and that he has been politically active , which puts his health and life at risk . Persecution caused the applicant ’s flight from GPE and , if he is returned there , his life will be in danger .

The third document is entitled “ Local Certificate ” , and it is signed by CARDINAL persons who certify that the applicant has been politically active in GPE by encouraging people to join the party and by distributing PJAK leaflets and material to people . The signatories wish to confirm that the activism of the applicant is known to everyone in the area and also that the security police are after him .

On DATE the applicant was married to a NORP citizen residing in GPE .

The applicant first sought asylum in GPE on DATE and claimed to have arrived in the country on DATE . He had also previously sought in GPE a visa to GPE for the period from DATE to attend his nephew ’s wedding but he had received a negative decision .

On DATE ORG ( NORP - muuttovirasto , PERSON ) rejected the applicant ’s asylum application and decided to expel him to GPE . It noted in its decision that the applicant ’s story about his journey from GPE to GPE was unclear and contradictory and that this weakened the credibility of his asylum story as a whole . For example , the applicant had stated in the asylum interview that he had left for GPE directly after having heard about the arrests of QUANTITY members of his group , while in a subsequent hearing he had claimed to have been in GPE already when he had heard about the arrests . Also the applicant ’s report about the whereabouts of his passport was contradictory and vague . He had stated that he had joined the party in DATE and had immediately started to work actively in it but at the same time he had said that he was in the army from DATE . ORG considered that the applicant ’s account of his alleged party activities was unclear and contradictory as he had spoken about the PJAK ’s activities only in a very general way , giving information which could be found on the PJAK ’s website , before its closure . ORG therefore concluded that there were no reasoned grounds to believe that the NORP authorities would be interested in the applicant .

The applicant appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) , also requesting an oral hearing to be held .

On DATE ORG rejected the applicant ’s appeal as well as the request for an oral hearing . The court noted that the applicant ’s activism had not been very significant but rather low - level . Nor had the applicant ever been arrested in relation to his activities in the ORG or ill - treated by the NORP authorities . Furthermore , the court considered that the applicant merely suspected that an arrest warrant for him had been issued but that there was no certainty about it . The court did not find it likely that the NORP authorities would be interested in the applicant in particular and therefore it considered that the applicant had failed to demonstrate a real risk of ill - treatment if returned to GPE .

On an unspecified date the applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltnings - domstolen ) .

On DATE the applicant lodged a new asylum application , submitting the above - mentioned documents , CARDINAL of which he claimed to have received from his family members in GPE , as written evidence supporting his application . As his appeal was already pending before ORG , the new application was sent directly there as an addendum to his appeal .

On DATE ORG refused the applicant leave to appeal .

Apparently the order to deport the applicant to GPE was never executed and thus on DATE the applicant lodged his third asylum application , citing the same grounds as before . He argued that his relatives in GPE had informed him that there was a court order against him for causing insecurity in the area and for being a member of the PJAK . He claimed that he would receive a death sentence if returned to GPE . He also relied on his marriage as grounds for a residence permit in GPE .

On DATE ORG rejected his application . It considered that the application was substantially the same as before , containing the same information as had already been submitted to ORG in the context of the applicant ’s previous asylum applications . The ORG therefore dealt with the application in the fast - track procedure . No residence permit could be given to the applicant on the basis of his marriage either , as neither spouse had a job or had provided information about having sufficient means for living . The ORG therefore ordered the applicant to be expelled to GPE .

NORP By letter dated DATE the applicant appealed to ORG , requesting that an oral hearing be held . He also requested that an interim order be imposed to stay the expulsion , which was not granted . He argued , in particular , that ORG had not taken into account the written evidence provided by him as no reasoning to that effect had been given in the decision .

On DATE ORG rejected the applicant ’s appeal and his request for an oral hearing . It considered that ORG had examined the documents submitted by the applicant and that the documents were mentioned in its decision . ORG considered that the new evidence did not provide grounds to accept the applicant ’s appeal .

On an unspecified date the applicant appealed to ORG .

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

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

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

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

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

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

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

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

According to ORG Operational Guidance Note on GPE , of DATE :

“ There is no evidence to suggest that an applicant of NORP ethnic origin , in the absence of any other risk factor , would on return face a real risk of ill - treatment or persecution to LAW level purely on account of his or her ethnic origin . However the government disproportionately targeted minority groups , including NORP , for arbitrary arrest , prolonged detention and physical abuse .

Applicants who are able to demonstrate that they are known , or suspected , by the government to be members or supporters of the PERSON , GPE , or PJAK , will be at real risk of persecution and a grant of asylum will generally be appropriate . ”