Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE . He is the father of a son born out of wedlock on DATE . Shortly after the child was born , the mother refused the applicant any contact with him . In DATE the applicant unsuccessfully attempted to establish contact .

On DATE the applicant lodged a request with the GPE / ORG for the regulation of contact rights . The course of proceedings before ORG is summarised in the ORG ’s judgment in the case of PERSON v. GPE [ Committee ] , no . CARDINAL , § § DATE , DATE . By interim order of CARDINAL DATE ORG ordered DATE supervised contact between the applicant and his son . CARDINAL supervised contact meetings took place DATE and DATE .

On DATE ORG suspended the applicant ’s contact rights for DATE . This decision was amended on DATE with respect to the applicant ’s right to be informed about the child ’s personal circumstances .

By judgment of DATE ( see PERSON , cited above , § CARDINAL ) , the ORG found that the length of the proceedings before ORG , which had lasted from DATE to DATE , violated the applicant ’s right to a trial within a reasonable time under LAW . The ORG further considered that there had been a violation of the right to an effective remedy LAW .

On DATE the applicant lodged an appeal against the decision given by ORG on DATE . On DATE ORG held a hearing .

By interim decision of CARDINAL DATE ORG decided that the applicant had the right to see his son for TIME on CARDINAL specific dates between CARDINAL May and DATE . The first CARDINAL contact meetings were to take place in the presence of a supervisor . ORG further ordered the child ’s mother to take the child to the meetings on time . Finally , ORG warned the mother that an administrative fine ( NORP ) of MONEY ( ORG ) could be imposed if she did not comply with her obligations under this decision .

ORG noted that the last contact meeting had taken place in DATE . There was no indication that contact with the applicant would jeopardise the child ’s welfare . According to expert opinion , the child ’s refusal to meet the applicant was not based on an autonomous decision , but was influenced by the mother ’s stance . This was in line with the personal impression the judge rapporteur had gained from hearing both parties and the child . ORG acknowledged that the conflict between the parents , and their ensuing lack of communication , posed a risk to successful contact . However , the course of the proceedings had shown that both parents were unwilling to settle these conflicts by availing themselves of specialist help . As it was unlikely that the parents would change their attitude , the granting of contact rights could not await the outcome of successful counselling .

The Court of Appeal further considered that the overall course of the proceedings had demonstrated that both parents had contributed to the failure of contact visits . In view of the lengthy proceedings , which imposed an emotional burden on the child , it was particularly important to reestablish contact carefully after a regrettable interruption of DATE .

On DATE the supervisor reported on the first contact meeting , scheduled for CARDINAL DATE , which had been postponed to CARDINAL DATE . After a short conversation and some playful interaction with the applicant , the child had decided to go to his mother and subsequently refused to play with his father . The supervisor further informed ORG that the mother would be on holiday for the CARDINAL meetings scheduled for DATE and CARDINAL DATE and that the parties’ counsels would have to agree on alternative dates .

On DATE the supervisor reported on the second contact meeting scheduled for DATE . According to the report , the meeting had lasted TIME during which the applicant and his son had engaged in several play activities . The meeting was interrupted by CARDINAL interactions between the child and his mother . Subsequently , the child told the applicant that he did not wish to play with him and left with his mother .

On DATE the mother ’s counsel informed ORG that it had not been possible to find alternative dates for the meetings scheduled during the mother ’s absence and that she expected that the meetings would be re - scheduled for DATE and DATE .

On DATE the applicant requested ORG to schedule alternative dates for the meetings which were to take place during the mother ’s holidays .

On DATE ORG informed the applicant that it did not see any reason to issue additional orders as to the organisation of the contact meetings , which fell within the competence of the supervisor . Furthermore , there was no room for scheduling alternative meetings . ORG further requested the mother to submit proof of her alleged holiday absence .

On DATE the applicant lodged a request with ORG to impose an administrative fine of at least ORG CARDINAL,CARDINAL on the mother for having failed to enable him to exercise his contact rights on CARDINAL May and a further LAW for having prevented him from exercising his contact rights on DATE . He submitted that the mother had failed to deliver the child on CARDINAL DATE , allegedly for professional reasons . On the alternative date , CARDINAL DATE , the mother had brought the child , but taken him away after TIME . On DATE the mother had left the meeting place with the child after TIME and had thus prevented further contact . In view of the urgency of the subject matter and relying on the case - law of ORG ( the applicant ’s counsel referred to the case of PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ) , the applicant further requested ORG to reach a decision speedily .

On DATE the supervisor reported on the contact scheduled for DATE . The unsupervised contact ordered by ORG had not taken place because the child had refused to go with his father and the supervisor ’s mediation attempts had been to no avail .

On DATE the mother submitted documents to justify her absence .

On DATE the applicant requested ORG to impose further administrative fines on the mother for failure to comply with her obligations under the interim decision . Relying on the report by the supervisor , he submitted that the mother had prematurely terminated the contact visit on DATE . Furthermore , she had failed to appear at the meeting place on DATE and DATE . On DATE the mother had failed to hand over the child to the supervisor , and induced the child to declare that he did not wish to have any contact . On DATE the applicant informed the supervisor that he would be TIME late because of traffic problems . The supervisor informed him that mother and child had left the building after TIME .

On DATE ORG submitted comments .

On DATE ORG scheduled a hearing for DATE .

On DATE ORG , on the mother ’s counsel ’s request , postponed the hearing to DATE .

During the hearing on DATE ORG heard the supervisor ’s oral submissions .

On DATE ORG informed the applicant that no decision could yet be taken for lack of the main case file on the contact proceedings .

On DATE the applicant ’s counsel requested ORG to expedite the proceedings . He further submitted that ORG was in possession of all relevant documents and that it was not necessary to await the return of the main case file .

By decision of CARDINAL DATE ORG imposed an overall administrative fine of ORG CARDINAL on the mother for having contravened the contact order CARDINAL times . ORG noted that it was not in dispute between the parties that contact did not take place , or took place only for a limited period of time , on the CARDINAL dates relied upon by the applicant . ORG further considered that the mother was accountable for the failed contact , albeit to a limited degree .

ORG considered that the fact that contact visits were terminated because of the child ’s resistance did not exonerate the mother . ORG had repeatedly stated that it was up to the mother to avail herself of the necessary educational measures in order to influence the child and thus to allow contact visits . The mother had failed to establish that she had undertaken such measures . She might have had good reason for requesting the dates to be rescheduled . However , she did not have the right to cancel these dates without ORG or the applicant ’s consent . Finally , the mother was under an obligation to wait for the applicant on DATE , taking into account that the applicant had informed her beforehand that he would be late .

ORG observed that the relevant provisions prescribed an administrative fine of up to EUR CARDINAL,CARDINAL for each established contravention of the court order . Based on an overall assessment of the circumstances , ORG considered that only administrative fines within the lowest range could be envisaged . ORG took into account that , according to a report submitted by an access custodian on DATE ( see paragraph CARDINAL , below ) there were serious indications that it would not even have been possible for a professional counsellor to establish contact . Against this background , the mother ’s personal responsibility appeared to be minor . This was even more so as the mother did not completely prevent contact , but took the child to CARDINAL of the scheduled meetings . The demands on her educational capabilities had been high , as she had not only been obliged to reconsider her own stance on the problems within a period of DATE , but also to change the child ’s established pattern of behaviour . It had further to be taken into account that comparable contraventions would not have to be sanctioned in the mid - term future , because a contact custodian had been appointed . Against this background , the administrative fine had primarily the character of a sanction for past behaviour , but not of a coercive measure .

According to ORG , account also had to be taken of the fact that the purpose of the first dates , on which the child had prematurely terminated the contact visits , was to institute contact . It was inherent in this constellation that contact could only be established gradually and might fail . ORG had pointed out this possibility and had also indicated that no undue pressure should be exerted on the child .

With regard to the contact meetings scheduled for DATE and DATE , the applicant had been informed beforehand that mother and child would be absent and this fact should also be taken into account . He had thus incurred travel and other expenses on these dates in spite of this knowledge .

Considering these circumstances , the ORG found it reasonable to impose an administrative fine of LAW for each of the CARDINAL occasions when contact did not take place at all and of LAW each for the CARDINAL remaining contraventions .

Both parties lodged complaints . The applicant submitted that the administrative fine imposed was far too low and obviously ineffective . He further complained that the length of the administrative fine proceedings had been excessive and had violated his rights under LAW .

On DATE ORG refused to amend its decision of CARDINAL DATE and forwarded the complaints to ORG .

On DATE ORG invited both parties to submit comments in reply by DATE .

On DATE ORG rejected both parties’ complaints . In respect of the applicant ’s complaint , ORG considered that ORG had exercised its discretion in an acceptable way , taking into account all relevant circumstances . ORG further considered that while it was true that the proceedings on administrative fines had to be processed speedily , the courts had to retain the possibility of availing themselves of all relevant information . Even though there were several reasons to assume that the length of the proceedings had been acceptable , ORG did not consider it necessary to decide whether the proceedings had been conducted within a reasonable time , as there was no legal basis for establishing that the length of proceedings had been excessive .

On DATE the applicant lodged an application to be heard ( Anhörungsrüge ) with ORG , which was rejected by that court on DATE .

On DATE ORG refused to accept the applicant ’s constitutional complaint for adjudication ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

NORP In the meantime , on DATE the applicant requested ORG to execute its decision of CARDINAL DATE . On DATE ORG ordered the applicant to advance court fees . On CARDINAL DATE ORG requested the applicant to submit an original version of the decision to be executed . On CARDINAL DATE the applicant pointed out that the decision had to be executed ex officio . On DATE the mother , who had been granted leave to pay by instalments , had paid the administrative fine in full . On DATE ORG informed the applicant that the administrative fine had already been paid .

On DATE ORG , in the main proceedings , quashed the decision of ORG of DATE ( suspension of contact rights ) and granted the applicant contact rights on every second DATE TIME for TIME each time , beginning on QUANTITY DATE . Following CARDINAL supervised contact meetings , the applicant was to have the right to unsupervised contact meetings of TIME each . ORG further appointed Mr. PERSON as custodian for the implementation of contact rights ( Umgangspfleger ) . The mother was ordered to hand over the child to the custodian for the purpose of contact meetings . Both parents were ordered to have preparatory conversations with the custodian .

ORG confirmed its previous finding that there was no indication that contact with his father would jeopardise the child ’s welfare and that there was thus no reason to suspend contact rights . There was furthermore not sufficient evidence that the child insistently refused to see his father . ORG considered that the child ’s verbal refusals to meet his father were not based on the child ’s own assessment , but stemmed from the child ’s loyalty to his mother as his immediate caregiver . It was evident that contact meetings had solely failed because of the mother ’s lack of willingness or her inability to allow such contact .

The Court of Appeal further observed that both parents had contributed to the lack of communication and to the overall development of the proceedings .

In view of the mother ’s continuing failure to fulfil her parental duties , ORG considered it necessary to appoint a custodian for the implementation of contact rights . ORG observed that the custodianship had to be subject to a time - limit . It considered that the time until DATE should be sufficient for establishing a stable relationship between the applicant and his son , allowing continued contact .

On DATE the custodian informed ORG that he had met the applicant , who had been uncooperative and did not seem to take an interest in the child ’s welfare . Under these circumstances , contact could not take place as scheduled . Nevertheless , in order to allow for contact , he recommended that the applicant seek professional counselling .

On DATE the applicant requested ORG to discharge the custodian from his duties .

On DATE ORG appointed a curator ad litem to represent the child ’s interests and submitted the request to the mother , the custodian and to ORG for comments within DATE .

On DATE and DATE ORG and the mother asked ORG to reject the request .

DATE . On DATE the applicant requested ORG to expedite the proceedings . On DATE , ORG scheduled a hearing for DATE .

On DATE the applicant complained that ORG , when scheduling the hearing , had not respected the time - limit of DATE laid down in section CARDINAL § CARDINAL of the Act on Proceedings in Family Matters ( see Relevant Domestic Law , below ) .

On DATE ORG informed the applicant that it had not been possible to schedule an earlier hearing , as the judge in charge had been replaced by DATE and the hearing was scheduled immediately after the new judge ’s return from holidays .

On DATE a hearing took place in the absence of the custodian , who had informed ORG that he was on holiday .

On DATE the custodian requested ORG to discharge him from his duties .

DATE the ORG judge contacted by telephone CARDINAL potential custodians . PERSON was ready to supervise the first contacts , while PERSON declared her readiness to hand over the child for the ensuing unsupervised visits .

On DATE ORG informed the parties that custodian PERSON could only be dismissed if a new custodian was appointed . ORG intensive endeavours to find a person who was ready to implement the decision of DATE proved difficult . On that same date , ORG judge wrote letters to CARDINAL potential custodians and enquired about their readiness to take up duties in the instant case . Furthermore , ORG informed the parties that it had instituted ex officio fresh contact proceedings in order to review the existing regulations ( ORG , see paragraphs CARDINAL - CARDINAL , below ) .

On DATE the mother challenged the ORG judge for bias . She withdrew her motion on DATE .

On DATE the applicant ’s counsel informed the mother ’s counsel that the applicant intended to exercise contact rights on DATE and that he expected the mother to hand over the child . The applicant expressed the opinion that ORG decision of DATE still provided for unsupervised visits on every second DATE . On DATE the mother ’s counsel replied that she considered that the applicant did not have the right to unsupervised contact .

DATE and DATE the mother did not open the door when the applicant appeared for contact visits . Between CARDINAL May and QUANTITY DATE the applicant lodged CARDINAL requests to impose administrative fines on the mother for failure to comply with her obligations to hand over the child to the applicant . He further requested ORG to expedite the proceedings .

On DATE the mother ’s counsel requested ORG to suspend proceedings pending the proceedings on the review of contact rights .

By decision of CARDINAL DATE ORG established that Mr H. ’s custodianship had expired on DATE .

On DATE the applicant requested ORG to decide without further delay . On DATE ORG informed the applicant that the mother still had to be allowed to submit comments on the request of DATE and on the applicant ’s letter of CARDINAL DATE .

On DATE the applicant complained that ORG failure to decide on his requests violated his right to an effective legal remedy .

On DATE ORG informed the parties of its intention to decide in written proceedings on the basis of submissions lodged by DATE .

On DATE ORG rejected the applicant ’s requests to impose administrative fines on the mother . ORG observed that the supervised contact ordered in the decision of DATE had not taken place . There was no indication that unsupervised contact could take place without an initial phase of supervised contact . This question was the subject matter of the new proceedings on the review of contact rights instituted by ORG . Under these circumstances , it could not be said that the mother had failed to comply with the contact order of DATE .

On DATE the applicant lodged a complaint which was rejected by ORG on DATE .

On DATE the GPE ORG instituted ex officio fresh contact proceedings in order to review the existing regulations and scheduled a hearing in the presence of PERSON and PERSON , who had previously declared their readiness to take on duties as custodians , for DATE .

During the hearing on DATE , the applicant and PERSON could not reach an agreement on the modalities of the contact , in particular the envisaged length of the first unsupervised contact meeting . The mother challenged ORG judge for bias ( compare paragraph CARDINAL above for the parallel proceedings ) . On DATE the substitute judge requested the mother ’s counsel to submit reasons for this motion . On CARDINAL DATE the mother ’s counsel withdrew the motion .

DATE . On CARDINAL DATE ORG judge heard the child .

On DATE ORG decided to hear expert opinion on the question of whether the decision on contact rights issued by ORG on DATE could still be implemented or whether it was in the child ’s best interests either to order unsupervised contact or to suspend contact rights .

On DATE the applicant challenged the court - appointed expert for bias . On DATE ORG rejected the motion as being unfounded . On DATE the applicant lodged a complaint . On DATE ORG accepted the motion .

On DATE ORG appointed a new expert . On DATE the expert informed the court that he had been unable to contact the applicant . The applicant informed the court that he was unavailable for further examination . On DATE the applicant ’s counsel abandoned his brief .

On DATE the applicant requested ORG to schedule a hearing immediately .

On DATE ORG , having received the expert report on DATE , scheduled a hearing for CARDINAL DATE and informed the parties that the applicant could be assessed on the basis of the expert ’s personal impression gained during the hearing . On CARDINAL DATE the applicant rejected ORG judge on grounds of bias and the hearing was cancelled .

On DATE the challenge for bias was rejected as being unfounded . On DATE the applicant lodged an appeal which was rejected by ORG on DATE .

On DATE ORG scheduled a hearing for DATE . On DATE the applicant lodged a fresh challenge for bias , which was dismissed on DATE . On DATE ORG scheduled a hearing for DATE . Upon the applicant ’s request , the hearing was postponed to DATE .

DATE . On DATE the applicant informed ORG that health reasons prevented him from attending the hearing . ORG , taking into account the parties’ absences during DATE , postponed the hearing to CARDINAL DATE .

On DATE the applicant once again requested ORG to cancel the hearing . He did not appear at the hearing which took place on DATE . On DATE the applicant requested ORG to re - open the hearing , while at the same time submitting that he was unfit to appear in court .

On DATE ORG suspended the applicant ’s contact rights until DATE on the ground that contact against the child ’s expressed will would jeopardise his welfare . The applicant lodged an appeal .

The applicant did not appear at the hearing which took place before the GPE / ORG on DATE . ORG scheduled a further hearing for DATE , to which the court - appointed expert was also summoned . On DATE the applicant asked ORG to allow him to bring a private expert to the hearing and , at the same time , to postpone the hearing scheduled for DATE as the private expert was unable to attend . ORG referring , inter alia , to CARDINAL of the LAW on Procedure in Family Matters , refused the request . On DATE counsel for the applicant , who did not attend the hearing in person , challenged ORG for bias , which was dismissed on DATE .

On DATE the GPE / ORG of Appeal confirmed the suspension of contact rights until DATE . It furthermore allowed the father to write DATE letters , which the mother was ordered to hand over to the child . Relying on expert opinion , ORG considered that personal contacts against the consistently expressed will of the child , who had now reached DATE , would jeopardise the child ’s psychological development and had thus to be temporarily excluded . ORG further observed that the administrative fine imposed on the mother might have been insufficient and that the refusal of contacts between father and child , which had already lasted DATE , had not only been caused by the GPE and , in particular , the mother ’s failure , but also by a failure of the judiciary and of the children and youth welfare services involved .


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 .


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE the applicant and a number of other suspects were taken into police custody by officers from the Security Branch of ORG ( PERSON ) on suspicion of membership of ORG ( the abbreviation for ORG , an illegal organisation ) . The applicant alleges that she was subjected to torture by police officers for DATE .

On DATE the applicant was taken to a forensic doctor , who noted that the applicant had complained that she had been hung by her arms for TIME and that her head had been banged against a wall . The medical report indicates that she had a scrape under her left armpit , a QUANTITY large brown macule on her right forearm and a CARDINAL cmlong oedema on her forehead above the nose .

On DATE the applicant was brought before the GPE public prosecutor and then before a judge at ORG . Before both authorities she denied all accusations against her and complained that she had been subjected to ill - treatment while in police custody . She was subsequently detained pending trial .

On DATE the applicant was examined by the prison doctor , who reported a MONEY on her right forearm and a swelling on her right clavicle . According to the medical report , the applicant had stated that her arms felt painful and she had a headache .

On DATE the applicant filed a complaint with the public prosecutor ’s office in GPE against the police officers of the Security Branch of ORG , accusing them of having tortured her . She stated in particular that she had been hung by her arms and had received blows to her head .

On DATE the PERSON public prosecutor issued a decision not to prosecute . The public prosecutor considered that the applicant had not been questioned as a suspect and that there was no evidence showing that the accused police officers had committed the crime of torture . The applicant claims that she was not notified of this decision .

On an unspecified date the investigation was reopened . Accordingly , on DATE the applicant ’s statement was taken by a public prosecutor in the prison where she was detained on remand . The applicant stated that at some time in DATE she had been taken into custody at the Anti - Terror Branch of ORG , where she had been ill - treated for DATE . She noted in particular that she had been undressed , threatened with rape , beaten and hung by her arms by the police officers . The applicant stated that she had been unable to use her arms for DATE subsequent to her detention in police custody . She further stated that she could identify the police officers in question .

On DATE the PERSON public prosecutor filed an indictment with ORG , charging CARDINAL police officers , GPE and GPE , under LAW with inflicting illtreatment on the applicant while in police custody DATE .

On DATE the ORG considered that it lacked jurisdiction to hear the case . The court held that the accusations against ORG and GPE could not be qualified as ill - treatment within the meaning of LAW of the former LAW but should be qualified rather as torture under LAW . The court therefore ordered the transfer of the case to the competent court .

The case was referred to ORG , which on DATE also held that it lacked jurisdiction . It held that in order for Article CARDINAL of the former Criminal Code to apply , the acts of illtreatment or torture had to be inflicted with the intention to extract information . The court held that the applicant had complained about having been subjected to torture , but she had not alleged that the intent behind such acts had been to extract information from her . The complaint therefore fell under Article CARDINAL of the former Criminal Code and accordingly within the jurisdiction of ORG . Consequently , the court referred the case to ORG to resolve the jurisdictional dispute .

On DATE ORG held that the case fell within the jurisdiction of ORG .

On DATE ORG held a hearing in the case during which the applicant joined the proceedings as a civil party . At the same hearing , the applicant made statements to the court . During her examination , she identified GPE in the courtroom as one of the police officers who had interrogated and tortured her . The applicant stated that she had been held at CARDINAL different facilities while in custody . According to her statements to the court , at the first facility she had been beaten ; at the second facility , she had been subjected to various forms of torture , including reverse hanging and sexual harassment by around QUANTITY police officers . She had been stripped naked and threatened with rape in front of her sister , and she had been sprayed with pepper gas . At the end of the hearing , ORG discontinued the proceedings against the accused police officers on the ground that the prosecution of the offences proscribed by Articles CARDINAL and CARDINAL of the former Criminal Code had become timebarred ( the period being DATE at the relevant time ) .

On an unspecified date the applicant lodged an appeal against the judgment of DATE .

On DATE ORG rejected the applicant ’s appeal and upheld the judgment of ORG .


Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

NORP The applicant , Mr PERSON Ryazanov , is a NORP national who was born in DATE and lives in the town of LOC in GPE .

ORG ( “ the Government ” ) were represented by Mr P. GPE and subsequently by PERSON , former Representatives of GPE at ORG .

On DATE the applicant and his brother stole some copper cable from a car park and then went to a river bank nearby to strip it and prepare it for sale . After following their tracks , the police arrested the brothers , who at that very moment were burning the cable jacket . On DATE the police drew up a report detailing the circumstances of their arrest , together with a crime scene inspection record .

The applicant and his brother were questioned and cross - examined by an investigator immediately after the events and both confirmed their involvement in this incident of theft . Later on DATE , they were released against an undertaking not to leave their town of residence during the proceedings .

On DATE the brothers were caught red - handed removing QUANTITY of copper cable from the basement of a block of flats . The police officers drew up a crime scene inspection record and an arrest record describing the circumstances of the arrest . In the presence of attesting witnesses they seized the applicant ’s bag containing the freshly removed copper cable .

Shortly afterwards the brothers were taken to the police station . A police officer drew up an “ explanation ” record , which set out the reasons for the arrest .

According to the applicant , in the police station he was put in a small , dark , overcrowded cell . TIME he was called for an interview , during which the police officers ill - treated him , forcing him to make a confession . They allegedly punched him in the back , put a gas mask over his face preventing him from breathing , and stood on his hand . Eventually he signed several blank sheets of paper . The applicant claims that he did not have any visible injuries on his body as a result of the ill - treatment and that he did not undergo any medical examinations in that connection after the events . The applicant did not bring any complaints in connection with the alleged ill - treatment before competent domestic authorities .

On DATE the applicant ’s brother confessed to CARDINAL incidents of theft committed together with the applicant on DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE ( CARDINAL incidents ) and DATE and DATE . The confessions were made in the presence of attesting witnesses at the locations at which the offences had been committed .

Subsequently , the investigating authorities accused the applicant and his brother of additional incidents of theft of copper cable . In total , the investigation brought charges in respect of CARDINAL counts of theft allegedly committed on DATE , CARDINAL ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) , CARDINAL , DATE , DATE , DATE ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) , DATE , DATE ( CARDINAL incidents ) , DATE ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) , CARDINAL , DATE ( CARDINAL incidents ) and DATE ( CARDINAL incidents ) DATE , and CARDINAL , DATE , DATE , DATE , DATE , DATE ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) and DATE .

On DATE the Krasnogorskiy District Court of ORG in GPE ( “ the ORG ” ) examined the applicant ’s criminal case .

During the hearing , which was held in the presence of CARDINAL defence counsel , the brothers admitted their involvement in the incidents of DATE and DATE , but denied any participation in the rest of the incidents . They also stated that the investigating authorities had put pressure on them on DATE , forcing them to sign blank sheets of paper . The relevant part of the record of that hearing reads as follows :

“ ... Prosecutor : What incidents of theft do you admit [ were committed by you ] ?

[ The applicant ] : I admit to the incident of [ CARDINAL ] DATE committed in the car park , but I do n’t agree with the legal classification of our actions . I consider that we committed an attempted crime as we were caught near the place of the incident and at the moment of the arrest we had not [ yet ] stripped the cable ...

[ The applicant ] : I also admit to the incident of DATE . I do not admit the remaining incidents of theft . We were interviewed in breach of LAW of GPE .

The prosecutor : What do you mean , in breach of ?

[ The applicant ] : Formal charges had not been brought against me and also I was forced to sign blank sheets of paper ... ”

At the court hearing of CARDINAL DATE the prosecutor withdrew the charges in respect of CARDINAL incidents of theft allegedly committed on CARDINAL , DATE , CARDINAL ( CARDINAL incidents ) , CARDINAL , DATE , DATE ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) , DATE ( CARDINAL incidents ) , CARDINAL ( CARDINAL incidents ) , CARDINAL , DATE and DATE ( CARDINAL incidents ) DATE and CARDINAL , DATE , DATE , DATE , DATE , DATE ( CARDINAL incidents ) and CARDINAL ( CARDINAL incidents ) DATE owing to lack of evidence .

On DATE ORG convicted the applicant and his brother of multiple counts of theft and attempted theft committed by an organised criminal group . The court established the applicant ’s involvement in CARDINAL incidents of theft committed on DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE ( CARDINAL incidents ) and DATE and DATE . The applicant was sentenced to CARDINAL years’ imprisonment .

The court ’s findings in respect of the applicant ’s involvement in the incident of DATE were based on the self - incriminating statements given by the brothers during the cross - examination of CARDINAL November CARDINAL , and confirmed by them in person at the trial court hearings ; the statements of the attesting witnesses and police officers , according to which on DATE the applicant ’s brother had confessed to the thefts and indicated the block of flats where they had stripped the wires ; the crime scene record of DATE ; the police report of DATE ; and material evidence such as a hand cart and a plastic bag full of copper wires .

The applicant ’s conviction in respect of the incidents of theft of CARDINAL , CARDINAL and DATE rested on the statements of his brother given on DATE at the locations of the thefts and in the presence of attesting witnesses and a police officer ; the statements of these attesting witnesses and the police officer given in court ; and the crime scene inspection records of CARDINAL , CARDINAL and DATE .

The court ’s conclusions regarding the applicant ’s involvement in the incidents of CARDINAL and DATE , the CARDINAL incidents of DATE and the incident of DATE were based on the statements of the applicant ’s brother of CARDINAL DATE given at the locations of the thefts and in the presence of attesting witnesses and a police officer , and the statements of these attesting witnesses and the police officer given at the trial court hearings .

The conviction concerning the incident of DATE rested on the statements of the applicant and his brother admitting their involvement in the incidents of theft , given by them in person at the trial court hearings ; the crime scene inspection record ; and the arrest record of DATE , which confirmed that the brothers had been caught red - handed . It was also supported by the court statements of the attesting witnesses and the police officers confirming the applicant ’s brother ’s confession of DATE , and material evidence such as a plastic bag containing copper wires .

The relevant part of the decision reads as follows :

“ [ The applicant and his brother ] , acting in concert and as an organised criminal group , committed repeated thefts and attempted thefts aggravated by unlawful entry to LOC .

The crimes were committed in the town of ORG in the following circumstances : [ description of CARDINAL incidents of theft ] .

At the court hearing the [ applicant ] partially admitted his guilt , stating that on DATE he and his brother , equipped with a hand cart and pliers , had gone to a [ parking area ] , removed the copper wires located there and then gone to a river bank to burn the jackets [ off the wires ] . At the river bank they had been caught by police . On DATE , at night time , together with his brother , he had removed a telephone cable from the basement of a block of flats in order to sell it . Shortly afterwards [ he and his brother ] had been arrested by the police . He had not committed any other offences .

At the court hearing [ the applicant ’s brother ] partially admitted his guilt , stating that on DATE he and his brother had gone to a [ car park ] . There they had removed copper wires and then walked down to a river bank QUANTITY away to strip the cable . When they were burning and stripping the wires , they had been apprehended by the police . On DATE , at night time , together with his brother , he had found a door open leading into the basement of a block of flats . They had gone inside and [ the applicant ] had removed copper wires . [ The applicant ’s brother ] had stripped them and put them in his bag . Then they had been arrested by the police . He had not committed any other offences .

The court has assessed the evidence in the present case . It is convinced that the guilt of [ the applicant and his brother ] is confirmed by the statements of the witnesses and the other pieces of evidence gathered by the investigating authorities .

When questioned in court , [ the first witness ] stated that in DATE a police officer had invited her to be an attesting witness . In her presence a man had said that together with his brother he had removed wires from near a block of flats located at [ address of the block of flats ] . The man had also pointed to another house and stated that they had also removed wires there . The man had given his statements in her presence and in the presence of another attesting witness , her neighbour . [ The first witness ] signed the relevant investigation record .

When questioned in court , [ the second witness ] stated that DATE , near a block of flats located at [ address of the block of flats ] , he had performed the duties of an attesting witness . Police officers had introduced a young man to him ; that man had stated that , together with his brother , he had removed a cable from the basement of a block of flats nearby . [ The second witness ] signed the relevant investigation record .

When questioned in court , [ the third witness ] stated that DATE he had attended investigative measures as an attesting witness . During the relevant procedural action a man had told him that he and his brother had removed a cable from a block of flats located at [ address of the block of flats ] .

When questioned in court , [ the fourth witness ] stated that DATE , near his house , police officers had invited him to play the role of an attesting witness . A man had confessed to the theft of cabling from near entrance no . CARDINAL of a block of flats nearby . Police officers had not instructed that man what to say . The man had spoken voluntarily .

[ The fifth witness ] did not appear before the court . The statements she had given at the preliminary investigation stage were read out . She stated that in DATE she had been out walking with an acquaintance when police officers had invited them to act as attesting witnesses . They had agreed . They had seen a man standing near a car . He had said that he had removed a cable from the basement of the block of flats located at [ address of the block of flats ] . He had stated that they had then burned the cable , stripped it and sold it . The man had said all this of his own volition . No one had put pressure on him .

When questioned in court , [ the police officer who had been present at the investigative action of DATE ] stated that at the preliminary investigation stage the brothers had given self - incriminating statements of their own volition in respect of all the offences .

The court casts no doubt on the validity of the witness evidence because it was consistent and collaborated by other pieces of evidence ...

The arrest of the accused persons in possession of the stolen wires is confirmed by the arrest record of DATE . According to this record , when patrolling a territory , police officers found an open junction box with no wires inside . There were footprints and cart tracks in the snow nearby that led towards a river . On the river bank the police found the accused , who were stripping wires .

During cross - examination the [ applicant and his brother ] confirmed that on DATE they had stolen copper wiring from near a parking area .

The confiscated cart and bag of copper wires were examined during the preliminary investigation and added to the case file as pieces of concrete evidence . Later the bag of wires was given for storage to CARDINAL of the victims of their crimes ...

During the investigative activities , the [ applicant ’s brother ] , of his own volition , indicated the locations where the crimes had been committed .

Stolen cables confiscated from [ the applicant ] at the stage preliminary investigation stage were placed in a storage room at ORG of the Interior .

An analysis of the evidence shows that the statements of the accused persons were aimed at hindering the investigation .

In the court ’s opinion , in refusing to admit their guilt the accused persons were attempting to avoid criminal liability ...

The court accepts the classification of the offences suggested by the prosecutor . The brothers , acting as an organised criminal group , committed thefts and an attempted theft aggravated by unlawful entry to premises ... ”

According to the applicant , the trial court hearing records were inaccurate , but he never made any request for them to be amended .

The applicant and his brother appealed against sentence . They complained that their conviction was unfounded . No complaints were made by the brothers about a lack of legal assistance .

On DATE ORG examined the case on appeal and upheld the applicants’ conviction on CARDINAL counts of theft committed on DATE , CARDINAL , DATE , DATE , DATE and DATE and CARDINAL DATE .

The court dropped the charges relating to the incident of theft of DATE and the CARDINAL incidents of theft of DATE , as the damage caused by the brothers in those incidents was insignificant and therefore could not lead to a prosecution .

On DATE ORG refused to reopen the case by way of supervisory review .

DATE the LAW provides that no one may be subjected to torture , violence or any other cruel or degrading treatment or punishment .

Article CARDINAL provides that everyone has a right to qualified legal assistance . It also provides that an arrested or detained person or a person accused of a criminal offence has a right to legal representation from the moment of his or her arrest , placement into custody , or the bringing of charges .

Article CARDINAL provides that no one is obliged to give evidence against himself or herself or a spouse or close relative .

Article CARDINAL § CARDINAL of LAW of GPE of DATE provides that the application to another person of physical force which has caused physical pain but has not resulted in any damage to health is punishable by a fine , compulsory or correctional labour , or detention for a period of DATE .

Article CARDINAL § CARDINAL ( a ) of MONEY provides that actions on the part of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens , committed with violence or the threat of violence , are punishable by DATE imprisonment , with a prohibition on occupying certain posts or engaging in certain activities for DATE .

Article CARDINAL of LAW ( “ the LAW ” ) , as in force at the material time , provided that a lawyer must be called to take part in a case at the moment when charges were brought or , if a person suspected of a criminal offence was arrested or detained before charges were brought against him , at the moment when the arrest record or a detention decision was read out to him .

Article CARDINAL of the Code established that an accused could refuse legal assistance at any point in the criminal proceedings . If the accused was charged with criminal offences punishable by the death penalty , such a refusal was not binding on a court , an investigator or a prosecutor .

CARDINAL Article CARDINAL , CARDINAL and CARDINAL of the Code required that a competent authority institute criminal proceedings if there was a suspicion that a crime had been committed . That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction . The decision whether or not to institute criminal proceedings had to be taken within DATE of the first report on the relevant facts .

No criminal proceedings could be brought in the absence of a corpus delicti ( LAW . Where an investigating body refused to open or terminated a criminal investigation , a reasoned decision was to be provided . Such decisions could be appealed to a higher - ranking prosecutor or to a court ( Articles CARDINAL and CARDINAL ) .

During criminal proceedings , persons who had been granted victim status could submit evidence and file applications , had full access to the case file once the investigation was complete , and could challenge appointments and appeal decisions or judgments in the case . At an inquest , the close relatives of the deceased were to be granted victim status ( Article CARDINAL ) .


CASE OF BÁTĚK AND OTHERS v. THE CZECH REPUBLIC

No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo

The applicants were born in DATE , DATE and DATE respectively and live in GPE ( Messrs. PERSON and PERSON ) and Břeclav ( Mr GPE ) .

From DATE the applicants were employed by ORG on the border with GPE . On DATE , pursuant to Article CARDINALe of the Code of Criminal Procedure ( “ the ORG ” ) an undercover police agent infiltrated the team of customs officers . As a result of her observations over DATE , the customs officers were suspected of corruption , namely taking bribes from truck drivers in exchange for granting priority or trouble - free customs clearance . The undercover agent left ORG on DATE .

During DATE and DATE testimony was taken in the presence of a judge from CARDINAL truck drivers from different countries in accordance with the provisions of LAW ORG , that is to say this step was taken as an urgent or non - repeatable measure ( neodkladný nebo neopakovatelný úkon ) . The records show that the NORP testimonies were similar . According to the applicants , interviews with CARDINAL of the drivers were of decisive significance . CARDINAL of them were of NORP nationality and one of them was a NORP citizen . The applicants , being not yet charged , were not present at these interviews .

Witness I.P.D. testified that it was common practice for the customs officers to ask drivers for documents and to check whether there was some money enclosed . If not , the drivers had to wait for TIME to be cleared . He admitted that he had paid bribes on CARDINAL or CARDINAL occasions but he could not remember individual customs officers .

Witness PERSON testified that he had always had to pay MONEY ( ORG ) in order to avoid inconvenience during customs clearance . He described CARDINAL customs officer as a corpulent person with thinning brown hair . He did not remember any other officer .

Witness PERSON testified that he had paid CARDINAL ORG on each of the CARDINAL trips he had made to pass the customs control . He was not able to describe any of the customs officers .

Witness PERSON confirmed the existence of corrupt practices at the customs office in question but could not specify any particular person .

On DATE the applicants were charged , together with CARDINAL other individuals , with abuse of the authority of public official and accepting bribes . In DATE they were officially indicted .

On DATE ORG ( okresní soud ) heard the police agent as an anonymous witness ( utajený svědek ) under the provisions of LAW and LAW ORG . She gave her testimony outside the courtroom using an audio streaming device . She did not recount any specific case of the acceptance of a bribe , stating only that her reports and the information therein were fully reliable . The third applicant was present at the hearing . He was represented by a defence counsel . The other CARDINAL applicants were absent and were represented by a substitute defence counsel . CARDINAL applicant put a question to the anonymous witness .

In the course of the trial , the applicants argued that the agent would have been unable to see any other customs officers from her work - station , that none of the alleged acts had been filmed by the cameras installed at their workplace , and that the ORG numbered rubber stamps could have been used by other people .

On DATE ORG found the applicants and other accused persons guilty as charged . They were sentenced to DATE imprisonment suspended for CARDINAL years’ probation and were fined . The court established the factual background to the body of evidence . The agent ’s written report constituted directly incriminating evidence . The court further relied on customs documents stamped using the personal rubber stamps of specific customs officers , comparing these with the testimony of the truck drivers , the records of service rotations and the database linking the applicants to the times at which the interviewed truck drivers obtained their customs clearance . ORG stated :

“ As regards the defendant PERSON , he is incriminated by the relevant documentary evidence referring to counts CARDINAL and CARDINAL of the indictment and counts CARDINAL and CARDINAL of the indictment , from which it is apparent that he used a rubber stamp with the number CARDINAL and that his personal number was DATE , these numbers appearing on the relevant documents . When it comes to counts CARDINAL and CARDINAL of the indictment , he is also incriminated by the witness statements of the NORP driver [ NORP ] and the NORP driver [ GPE ] who , according to their records , passed the border crossing point at the time in question , and their papers and travel documents bear the respective numbers of the defendant PERSON . The above fully corresponds to the report from the defendant ’s employer regarding the placement of the defendant , i.e. where ‒ that is to say at which work - station ‒ he was positioned at the time concerned . As to counts CARDINAL and CARDINAL of the indictment , the defendant PERSON is also incriminated by a police officer of GPE who saw the defendant accepting a bribe and recorded this fact in the corresponding document , produced in evidence , which also corresponds with the testimony of the undercover agent given before the court .

As regards the defendant PERSON , he is incriminated by the documentary evidence produced as regards counts CARDINAL and CARDINAL of the indictment , specifically the control sheets showing his personal number DATE and rubber stamp number CARDINAL . He is also incriminated by the testimony of the NORP driver [ GPE ] and by a report from his former employer stating the defendant ’s whereabouts at the time concerned . As to count CARDINAL of the indictment , the defendant PERSON is also incriminated by the undercover police agent of GPE who saw the defendant accepting a bribe .

As regards the defendant PERSON , he is incriminated on counts CARDINAL , CARDINAL and CARDINAL of the indictment by the documentary evidence produced , especially by control sheets which were stamped with his personal number and also by other use made of his personal number , as is apparent in the corresponding computer records . He is also incriminated by the witness statement of [ GPE ] , who submitted details of his border crossing to the authorities and notes of bribes given at a specific time and place . As to count CARDINAL of the indictment in relation to the defendant PERSON , the witness stated that on DATE he gave a bribe at a particular time and ‒ by checking the driver and the documentation relating to his border crossing ‒ it was established who had cleared him and who had stamped his documents , from which it is clearly apparent that it was the defendant PERSON who carried out the administrative measures concerned and hence received the bribe . As to count CARDINAL of the indictment , PERSON is also mentioned in the anonymous agent ’s report . ”

ORG explained that the truck drivers’ statements were read out at the hearing pursuant to LAW b ) of the ORG . The drivers had been interviewed in the presence of a judge during the pre - trial stage of the proceedings , because it had been deemed necessary to take the step of obtaining their testimonies as an urgent or non - repeatable measure since they were foreign nationals and it would have been almost impossible for the court to reach them at a later stage . The undercover police agent was heard as an anonymous witness pursuant to LAW ORG because of her potential future activities .

The applicants appealed against the judgment . They firstly argued that the truck drivers could have been questioned under the corresponding international treaties ‒ namely ORG and bilateral treaties on mutual judicial assistance with GPE ( treaty of DATE ) and GPE ( treaty of DATE ) ‒ and that they could have been granted immunity in exchange for testifying . They also contested the legal grounds and the necessity for the non - disclosure of the identity of the undercover police agent . According to them , she did not risk bodily harm or any other danger of interference with her fundamental rights as required by LAW ORG . The argument about her future activities was not sufficient justification . Moreover , the delays between the questions asked at trial and her replies implied that she had had with her some notes or someone whom she had consulted about her answers before replying .

On DATE ORG ( krajský soud ) rejected the ORG appeal as unsubstantiated , arguing as follows :

“ ( ... ) the hearing of an undercover police agent as a witness is in practice exceptional , occurring only in the particular circumstances of a specific case and in the interests of proper clarification and vindication of particularly serious criminal actions and the conviction of the perpetrators thereof . In such circumstances , and when such an agent is heard as a witness , LAW , LAW , and LAW ORG would be applicable . In the instant case , the provisions of the ORG regulating the agent ’s testimony were not violated and the allegations of some of the defendants that the agent had been heard as an anonymous witness in order to allow her to consult her notes or another person are unsubstantiated . The first - instance court had no doubts about the agent ’s reliability as a witness . She reliably described how she had obtained the information about the criminal activity of the accused and how she had evaluated , recorded and processed it ( ... )

Under LAW of the ORG , a non - repeatable measure is a measure which can not be repeated before the trial court . Questioning a witness who is a foreign national or stateless person without a permanent residence permit in GPE can be considered to be this kind of measure . None of the witnesses had a link to GPE of the kind which could have justified the conclusion that they would remain in the country or appear if summoned . The witnesses merely pass through the territory in the course of their work as truck drivers . The interviews with these witnesses were conducted in accordance with the provisions of LAW . The allegations of the defendants that the witnesses did not even know the content of the records they had signed , and that they had been forced to testify and promised immunity if they stated particular facts , are not substantiated by the case file , and no other facts corroborating these allegations have been ascertained . It is apparent from the file that the truck drivers were questioned in the presence of an interpreter and in the presence of judges of ORG ( ... ) . Under LAW ORG , a judge who performs the urgent or nonrepeatable measure of examining a witness or in an identity parade also bears responsibility for the legality thereof . "

The applicants filed a constitutional appeal alleging a violation of LAW and CARDINAL d ) of the LAW and complaining about the depositions of the truck drivers and the anonymous witness .

On DATE ORG ( PERSON ) dismissed the constitutional appeal as manifestly ill - founded . It stated that the complaints raised at the previous instances had been properly addressed and that the courts had provided sufficient justification to show that the evidence had been obtained in accordance with the provisions of the ORG .


NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in the town of GPE .

ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

NORP On DATE the applicant was arrested on suspicion of inflicting bodily harm resulting in death . He was taken to the premises of ORG of the Interior in the LOC of GPE . He was subsequently placed in its custody room . On DATE he was transferred to temporary detention facility IZ-CARDINAL located in the town of GPE . According to the applicant , one of the cells he occupied was in an appalling condition .

On DATE the applicant was transported to correctional colony IK-CARDINAL located in the same town . A prison doctor examined him on admission and made the following entry in his medical record :

“ [ The applicant ] has no complaints . The medical examination indicates no pathology of bodily organs and systems . No traces of injuries found on [ the applicant ’s ] body . He states that he does not have any venereal diseases or HIV ” .

According to the applicant , on DATE , following his admission , he was ill - treated . Prison guards allegedly insulted and kicked him in his kidneys , put a gas mask with a closed air valve on his face and beat him on the ribs with a mallet .

The applicant stated that DATE he was forced to learn by heart the list of duties detainees must undertake while in prison . On DATE , he was also handcuffed to a radiator and beaten with a mallet . According to the applicant , he was ill - treated by prison guards DATE .

On DATE a doctor from the correctional colony examined the applicant on his discharge . The relevant medical entry reads as follows :

“ [ The applicant ] has no complaints . His skin shows no pathological condition . No pathological conditions of the bodily organs or system . No bodily injuries ”

On an unspecified date the applicant complained to ORG of LOC of GPE ( “ the prosecutor ’s office ” ) that he had been subjected to ill - treatment DATE .

On DATE the prosecutor ’s office dismissed his complaint as unsubstantiated .

On DATE ORG of the Omsk Region ( “ the regional prosecutor ’s office ” ) quashed the decision of DATE as unfounded and ordered the prosecutor ’s office to perform an additional investigation into the applicant ’s allegations .

On DATE the prosecutor ’s office again refused to institute criminal proceedings . The regional prosecutor ’s office informed the applicant about this decision by letter of DATE and advised the applicant of his right to appeal against it in court . The applicant did not bring any court proceedings in this connection .

NORP In DATE the applicant brought a claim against the correctional colony IKCARDINAL and ORG seeking damages for the alleged ill - treatment he had suffered at the hands of prison guards DATE .

On DATE ORG dismissed the applicant ’s claim as unsubstantiated .

On DATE he appealed against that judgment .

On DATE the ORG rejected the applicant ’s appeal for failure to comply with the statutory time - limit for lodging such claims , noting that the applicant had not applied for an extension of the deadline for appeal .

On DATE ORG upheld that decision .

On DATE , on DATE of his arrest , the applicant was given access to defense counsel , PERSON The applicant allegedly considered her assistance ineffective and signed a waiver of his right to a lawyer , but did not ask the investigator to provide him with another defense counsel . The identification parade and a seizure of his personal effects , which took place on DATE , were nevertheless carried out in the presence of PERSON During the identification parade the applicant was identified as a perpetrator of the crime by witnesses PERSON . , Bar . and PERSON . The applicant did not take part in interrogations or cross - examinations on DATE and did not give any evidence himself .

On DATE the applicant was convicted as charged by ORG of GPE and sentenced to DATE of imprisonment . It held that on CARDINAL DATE the applicant , who had been drunk at the time , had beaten up a stranger on the street . DATE the victim of the applicant ’s attack had died in hospital .

The applicant ’s conviction was based on testimonies of eyewitnesses PERSON . , Bar . and PERSON . who had seen him hitting and kicking the victim during the incident . Their trial statements were consistent with their oral evidence given during the pre - trial stage of proceedings . The court also referred to expert reports , which attributed the victim ’s death to the injuries sustained during the beatings . The forensic examination established that the blood stains on the applicant ’s clothes belonged to the victim of his attack . The applicant ’s guilt was also confirmed by , among other things , the identification parade record of DATE . Throughout the trial the applicant was represented by defense counsel PERSON

The applicant challenged his conviction on appeal . He complained about the outcome of his case , in particular the findings of fact and law , the admission of allegedly inadmissible evidence , and the lack of effective legal assistance during the identification parade on DATE . The applicant did not raise an issue of an alleged ill - treatment CARDINAL DATE during the trial or on appeal .

On DATE ORG upheld the applicant ’s conviction on appeal . It affirmed the findings of the lower court . It held that the identification parade had been performed in accordance with the applicable domestic rules . The court also noted that on DATE the applicant ’s defense rights had been properly secured by PERSON

DATE and DATE the applicant was frequently transferred between various detention facilities , including correctional colony IK-CARDINAL and temporary detention facility IZ-CARDINAL . According to the applicant , the conditions of his detention and transportation were consistently appalling owing to overcrowding , dirt , insects , rats , poor heating and insufficient ventilation .

Article CARDINAL provides that no one may be subjected to torture , violence or any other cruel or degrading treatment or punishment .

Article CARDINAL provides that everyone has a right to qualified legal assistance . It also provides that an arrested or detained person or a person accused of a criminal offence should have a right to legal representation from the moment of his or her arrest , placement into custody or when charges are brought .

Article QUANTITY of LAW of GPE of DATE provides that the application to another person of physical force which has caused physical pain but has not resulted in any health damage is punishable by a fine , compulsory or correctional labour or arrest for a period of DATE .

Article CARDINAL § CARDINAL ( a ) provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens , committed with violence or the threat of violence , are punishable by CARDINAL to ten years’ imprisonment , with a prohibition on occupying certain posts or engaging in certain activities for DATE .

Article CARDINAL of the Code of Criminal Procedure of GPE provides that prosecutors , investigators and inquiry bodies must investigate every report of a crime committed or being planned , and take a decision on that information within DATE . In exceptional cases , that time - limit can be extended to DATE . The decision should be one of the following : ( a ) to institute criminal proceedings ; ( b ) to refuse to institute criminal proceedings ; or ( c ) to transmit the information to another competent authority ( Article CARDINAL ) .

Article CARDINAL provides that the decision of an investigator or a prosecutor to dispense with or terminate criminal proceedings , and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a ORG , which is empowered to check the lawfulness and grounds of the impugned decisions .

Article CARDINAL provides that , in order to terminate the proceedings , the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination . A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor ’s office . The investigator should also notify the victim and the claimant in writing of the termination of the proceedings .

Under Article CARDINAL , the prosecutor ’s office is responsible for general supervision of the investigation . In particular , the prosecutor ’s office may order that specific investigative measures be carried out , transfer the case from CARDINAL investigator to another , or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies .

Article CARDINAL of the Code provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty . Unless counsel is retained by the accused , it is the responsibility of the investigator , prosecutor or the court to appoint legal - aid counsel .

Article CARDINAL provides that an accused can waive his right to legal assistance , but such a waiver must be established in writing . The waiver may be revoked at any point in the proceedings .


Remainder inadmissible;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);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

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

NORP In DATE a jewellery shop and other premises in a commercial centre in the GPE district of GPE were robbed ; in the course of those events , a woman guard was attacked and suffered injuries . Investigator PERSON , from the investigation unit of the GPE police department , opened a criminal case into the robbery . On DATE the criminal proceedings were suspended for failure to establish the identity of a person to be charged .

On DATE a certain NORP reported to the police that her boyfriend PERSON had committed the robbery together with Zh . and the applicant . On the same day investigator PERSON reopened the criminal proceedings .

On DATE the police arrested B. , Zh . and the applicant . Investigator PERSON was present at the time of the arrest . The QUANTITY men were taken to the GPE police department of GPE ( отдел внутренних дел г. PERSON ) .

Police officers , in particular PERSON , the head of the criminal police division of the GPE police department , interviewed the applicant about his involvement in the robbery . According to the applicant , they demanded that he confess to the robbery and PERSON , an operative officer in the criminal investigation unit of the police department , punched and kicked him on different parts of his body . Fearing new violence , the applicant confessed to having participated in the crime as requested , and signed a record of his “ surrender and confession ” ( явка с повинной ) that had been drawn up by operative officer PERSON at PERSON ’s request .

According to that record , on CARDINAL DATE in office no . CARDINAL of the GPE police department police officer PERSON obtained from the applicant his confession to the crime , in accordance with LAW ( “ CCrP ” ) . In particular , the record stated that the applicant had assisted PERSON and Zh . by loading the property stolen from the shops into his car and transporting it ; that he had confessed without any physical or psychological pressure being exerted on him ; and that he had been informed of LAW . The record did not indicate the exact time when the confession was obtained and did not explain the meaning of LAW ( concerning self - incrimination , see paragraphs CARDINAL , DATE and DATE below ) .

At PERSON ’s request , the applicant wrote in the police station visitors’ registration log that he had struck his own head against a wall , and that he had no complaints against the police officers .

At TIME on the same day investigator PERSON drew up a record of the applicant ’s arrest as a suspect in the case .

On DATE the applicant was placed in a temporary detention facility ( ORG ) at the GPE police department . According to the ORG records , on arrival he had bruises under his eyes , his lips were burst , his lower jaw was swollen on the left side , and he had bruises on his back and abrasions on his knees .

On DATE the applicant was questioned as a suspect in the presence of a lawyer . He retracted the confession statement that he had given on DATE , and explained that he had made the statement as a result of illtreatment by the police officers .

On DATE a judge of ORG ordered that the applicant be detained on remand . In reply to the judge ’s question about the origin of his facial injuries , the applicant stated that he had been beaten up by operative officers from the police department . On DATE the applicant ’s legal - aid counsel , who was representing the applicant at the court hearing , lodged an application with the ORG prosecutor in which he requested that an inquiry be conducted into the applicant ’s complaint and that those responsible for his illtreatment be prosecuted .

On DATE the applicant was placed in pretrial detention facility GPE CARDINAL , where he was examined by a doctor and found to have bruising beneath his eyes , a swollen nasal bridge , QUANTITY abrasions on the right side of his forehead , hematoma on the left side of his lower jaw and abrasions on the small of his back and right knee ( as recorded in a certificate of that detention facility dated DATE ) .

On DATE the applicant ’s counsel requested investigator A. , who was in charge of the robbery case , to order a forensic medical examination ( судебномедицинская экспертиза ) of the applicant . The investigator rejected the request as irrelevant to the robbery case .

Following the application by the applicant ’s counsel ( see paragraph CARDINAL above ) , investigator PERSON of the GPE prosecutor ’s office carried out a preinvestigation inquiry into the alleged illtreatment of the applicant .

On DATE the investigator ordered a forensic medical examination of the applicant ; this was carried out by ORG on DATE . The expert ’s report stated that the applicant had the following injuries : bruises measuring up to CARDINAL to QUANTITY on the lower eyelids of both eyes , CARDINAL abrasions measuring CARDINAL to CARDINAL.CARDINAL and QUANTITY on his back ; and an abrasion measuring QUANTITY on his right knee . The injuries could have been caused by impacts from blunt hard objects with a limited contact surface , in the period DATE before the examination . They could not have been caused by a single impact as a result of a fall against a flat surface .

NORP The investigator received “ explanations ” ( объяснения ) from investigator PERSON ( responsible for the robbery case ) and from the police officers who had taken the applicant to the police station and interviewed him about his involvement in the robbery . In particular , police officer PERSON stated that in the course of a “ conversation ” ( беседа ) which he had had with the applicant , the latter had suddenly jumped to his feet and hit his head against the wall , as a result of which his nose had started bleeding . Police officer PERSON also stated that he had seen the applicant hitting his own head against the wall . Police officer PERSON explained that in the course of his “ conversation ” with the applicant the latter had recounted the details of the robbery committed by him ; that the applicant had explained that he had hit his own head against the wall and that he had no complaints against police officers ; and that the applicant had entered this explanation in the police station visitors’ registration log .

On DATE investigator PERSON held that the applicant ’s allegations of ill - treatment , in particular the claims that he had been struck “ in his kidneys ” and pushed so that his face had hit the wall and he had fainted , had not been based on real facts and that no criminal case was to be opened against police officers PERSON , PERSON . , PERSON , pursuant to LAW CCrP ( lack of the elements of a crime in the impugned acts ) .

On DATE the ORG prosecutor set aside the investigator ’s decision of DATE as unlawful and unfounded , on the ground that the circumstances in which the applicant had received his injuries had not been reliably established . He referred to the description of the applicant ’s injuries on his arrival in the ORG ( see paragraph CARDINAL above ) and the GPE ( see paragraph CARDINAL above ) and his examination by the forensic medical expert ( see paragraph CARDINAL above ) . He stated that the expert ’s suggestions as to how the injuries had been sustained made it doubtful that the applicant could have received his injuries as a result of a CARDINAL - off impact by his face against a wall . The prosecutor further noted that the applicant had explained that he would most likely be able to identify the police officer who had beaten him at the police station . However , it was not possible to carry out an identification parade and a confrontation in a preinvestigation inquiry . The prosecutor considered that it could not be ruled out that , after his arrest , the applicant had been subjected to acts of violence in order to make him confess to the crime . The applicant ’s version of his illtreatment by the police officers could only be verified by way of a full investigation . In order to do so it was necessary to open a criminal case , given that there was sufficient information disclosing elements of a crime under LAW CARDINAL ( a ) of LAW ( official misconduct with the use of violence ) . The prosecutor ordered that a criminal case be opened .

In the course of the ensuing investigation the police officers who had arrested the applicant were questioned as witnesses . The applicant was questioned as a victim . An additional forensic medical expert ’s report was obtained on DATE . It reiterated the conclusions in the previous report ( see paragraph CARDINAL above ) .

On DATE an investigator from the ORG prosecutor ’s office terminated the proceedings for lack of the elements of a crime in the acts of the police officers , pursuant to LAW

On DATE a deputy prosecutor of GPE set aside the investigator ’s decision and reopened the criminal proceedings . CARDINAL further decisions to terminate the proceedings were subsequently taken and then set aside as unfounded and based on an incomplete investigation . In CARDINAL of the decisions , dated DATE , the deputy prosecutor ordered that the inconsistencies between the statements of the police officers and that of the applicant be eliminated and that identification parades and confrontations be held , if necessary . When questioned again as a victim , the applicant stated , inter alia , that he remembered that police officer PERSON had hit his head against the wall and started punching him “ in the kidneys ” ( as stated in a decision to terminate the proceedings of CARDINAL DATE ) .

The most recent decision to terminate the proceedings for lack of the elements of a crime under LAW ( a ) of LAW in the acts of police officers PERSON , PERSON . and PERSON was taken on CARDINAL DATE . The investigator concluded that the applicant ’s allegations had been refuted by police officers PERSON and PERSON , who stated that the applicant had hit his own head against the wall ; by the record of his surrender and confession and the forensic medical report of DATE , in that the applicant ’s injuries could have been sustained as a result of impacts from blunt hard objects with a limited contact surface . It does not appear from the decision that investigative acts such as identification parades and confrontations with the applicant ’s participation were carried out .

At a preliminary hearing held by ORG on DATE the applicant ’s counsel requested that the record of the applicant ’s surrender and confession of CARDINAL DATE , on which the prosecution relied , be excluded from evidence pursuant to LAW ORG , as it had been obtained in the absence of a lawyer . ORG dismissed the request .

At his trial , the applicant pleaded his innocence and submitted that he had written his confession statement on the instructions of police officer PERSON as a result of physical and psychological coercion by the police officers ; in particular , police officer PERSON had beaten him “ in the kidneys and liver ” and his head had been struck against the wall so that he had fainted . He had not been informed of his right under LAW of the LAW not to give selfincriminating statements , as that part of the record had been added by police officers at a later stage . The applicant asserted , in particular , that on TIME of the robbery he had arrived at the commercial centre , by car and at B. ’s request , and had towed B. ’s car until its engine started , without knowing anything about the robbery . DATE PERSON had offered him gold jewellery , allegedly belonging to B. ’s acquaintance , for sale . The applicant had returned some of the jewellery to PERSON and kept the rest for himself . He had understood from police officer PERSON that the gold which he had received from PERSON had been stolen from the GPE district commercial centre . He had therefore told PERSON about the gold he had kept at his home .

The applicant ’s co - defendant Zh . pleaded his innocence , asserting that he had given self - incriminating statements as a result of his illtreatment by police officers , in particular by PERSON , who had allegedly beaten him up , kicked him and burned his fingers with a cigarette ; he also stated that after his arrest on CARDINAL DATE he had seen the applicant , on his knees and bleeding , at the police station .

The applicant ’s co - defendant PERSON admitted before the trial court that he had committed the robbery together with a certain PERSON . , and stated that the applicant and PERSON . were innocent . In particular , PERSON stated that on TIME of the robbery he had called the applicant , asking him for help because his car had broken down ; the applicant had arrived by car as requested , towed B. ’s car ( with the stolen property inside ) until the engine started and then left without knowing anything about the robbery . DATE , since he was experiencing difficulties with storing and selling the stolen property , PERSON had asked the applicant to look after the gold jewellery and to buy some of it if he wished . The applicant had agreed . PERSON also stated that he had not given any selfincriminating statements during the preliminary investigation , in spite of the physical violence used against him by the police officers , in particular by PERSON

The applicant ’s wife stated , among other things , that on DATE of his arrest the applicant had been taken back to their home by the police officers in order for their flat to be searched . He had had an abrasion on his head , his lip was burst and his nose was swollen .

Police officer PERSON , examined by the trial court as a witness , stated that he and other police officers had arrested the applicant and his CARDINAL codefendants after PERSON ’s girlfriend had reported their involvement in the robbery . At the police station he had talked to the applicant about the robbery several times . The applicant had confessed , named his accomplices and expressed his readiness to surrender the stolen gold . PERSON had suggested that the applicant write a statement of his surrender and confession . The applicant had agreed and PERSON had asked his subordinates to prepare the necessary document . No violence or threats had been used against the applicant .

Police officer PERSON stated that after the applicant ’s arrest he had taken the applicant to the police station . The applicant had been taken to PERSON ’s office and later PERSON had requested PERSON to obtain from the applicant a statement of his surrender and confession . The applicant had written down his statement and signed it . PERSON had not used any violence against the applicant . PERSON had come out of his office to register the statement with an officer on duty , while the applicant had stayed with police officer PERSON On returning to his office , PERSON had seen the applicant suddenly jump to his feet and strike his head against the wall . The applicant had fallen to his knees and started bleeding , “ probably from his nose ” . PERSON had given him a towel and asked whether he needed a doctor . The applicant had answered negatively . PERSON had then taken the applicant to his office again .

Police officer PERSON stated that the applicant had jumped to his feet and struck his forehead against the wall once and then had fallen to his knees . PERSON had wanted to call a doctor but the applicant had refused . He had given the applicant a towel because the applicant was bleeding . PERSON denied any violent behaviour on the part of the police officers .

Investigator PERSON stated that she had investigated the robbery case and had given instructions ( отдельные поручения ) to the police officers in the criminal investigation unit of the GPE police department . She had not instructed them to question the applicant or to collect a statement of his surrender and confession . Police officer PERSON had obtained the applicant ’s statement of his surrender and confession as a result of the applicant ’s free will . When questioning the applicant as a suspect ( on CARDINAL DATE , see paragraph CARDINAL above ) she had noticed his injuries and asked if he had needed medical assistance , but he had refused .

The applicant ’s counsel maintained before the trial court that the applicant ’s statement of his surrender and confession , which he had retracted on DATE when questioned for the first time in the presence of a lawyer , should be declared inadmissible evidence . She noted that investigator PERSON had drawn up the record of the applicant ’s arrest as a suspect on CARDINAL DATE . However , for unknown reasons she had not questioned him as a suspect on DATE . Instead , the police officers had obtained the statement of his surrender and confession on their own initiative , without any such instruction from the investigator . They had done so using psychological and physical coercion , as confirmed , inter alia , by the statements of Zh . and the applicant ’s wife ( see paragraphs CARDINAL and CARDINAL above ) , the certificate from detention facility GPE ( see paragraph CARDINAL above ) and the forensic medical expert report of DATE ( see paragraph CARDINAL above ) . Furthermore , his confession statement had been obtained in the absence of a lawyer . Under LAW of the ORG , a statement of CARDINAL ’s surrender and confession was meant to be voluntary . Therefore , if obtained from a person arrested on suspicion of having committed a crime , any such statement should be subjected to particular scrutiny . Its voluntary nature was ensured through procedural guarantees under Articles CARDINAL ( “ The suspect ” ) and CARDINAL ( “ Compulsory participation of counsel for the defence ” ) of the CCrP. Otherwise , such a confession statement should be declared inadmissible evidence in accordance with LAW ( CARDINAL ) of the CCrP.

In its judgment of DATE ORG held that the applicant ’s allegation that the statement of his surrender and confession had been given under duress was unsubstantiated . It relied on the statements by the police officers , denying any wrongdoing on their part ( see paragraphs CARDINAL above ) , the investigative authority ’s most recent decision to terminate the criminal proceedings against them which , as ORG noted , had been taken in accordance with LAW and had not been revoked or quashed ( see paragraph CARDINAL above ) , and a report from an internal police inquiry which had dismissed the applicant ’s allegations of illtreatment .

ORG held that it had critically assessed the applicant ’s statements at the trial and concluded that they represented the position of the defence , in that they were aimed at evading criminal responsibility . Those submissions had been refuted by his and Zh . ’s statements of surrender and confession , as well as by the statements by the following witnesses : PERSON ’s girlfriend , who had provided hearsay evidence about the applicant ’s involvement in the robbery ; CARDINAL police officers who had participated in the applicant ’s and his co - defendants’ arrest or the operative follow - up , in particular PERSON , and PERSON ; investigator PERSON , in charge of the robbery case ; Z.A. , who had denied seeing the applicant in the porch of his building on the night of the robbery ( where , according to her former boyfriend who had been heard by the court as a witness for the defence , she had spent time that evening ) , and her mother GPE , who had stated that Z.A. had not gone out after TIME ; and PERSON . , who had been an attesting witness during the search at the applicant ’s home during which certain items were seized .

ORG held that it had based its judgment on the statements of surrender and confession given by the applicant and Zh . , along with statements by the victims , the prosecution witnesses and other evidence . It found that on DATE B. , Zh . and the applicant had entered into a conspiracy to commit theft from the shops in the commercial centre . According to the roles agreed on between them , the applicant had remained on guard in his car outside the commercial centre , while PERSON and PERSON . had entered while the centre was still open and had hidden there . During the night they had attacked a woman guard and tied her up . Then they had forced locks and stolen property , in particular jewellery and mobile phones . The applicant had helped them to carry the stolen property out and load it into his car , in which they all had left .

ORG convicted the applicant of high - value theft with unlawful entry , committed in conspiracy by a group of persons , and sentenced him to CARDINAL years’ imprisonment . In sentencing the applicant ORG took into account information about his personality , in particular that he had received positive character references from his places of residence and employment , and that he had no criminal or administrative offences record . It considered his statement of surrender and confession , the fact that he had CARDINAL minor children and that he had voluntarily surrendered the stolen gold jewellery , as well as his health condition , as mitigating circumstances . PERSON and Zh . were convicted of robbery with the use of violence and sentenced to DATE imprisonment respectively . ORG granted the GPE civil actions and ordered the applicant and his co - defendants to pay MONEY ( RUB ) jointly in respect of pecuniary damage . The ORG remaining claims were to be examined in separate civil proceedings .

The applicant and his counsel appealed against the judgment . His counsel argued , inter alia , that the trial court had based its judgment on inadmissible evidence , in particular the statement of the applicant ’s surrender and confession of CARDINAL DATE , which had been given by him as a result of ill - treatment by the police officers and in the absence of a lawyer . She reiterated the arguments put forward before the trial court ( see paragraph CARDINAL above ) .

On DATE ORG of GPE examined the case on appeal . It endorsed in full the trial court ’s decision concerning the admissibility of the statement of the applicant ’s surrender and confession . It held , in particular , that the statement had been obtained in accordance with LAW . Under LAW § CARDINAL of that Code , a statement of surrender and confession was a voluntary statement by a person about a crime committed by him . It had not therefore been necessary to have an instruction from an investigator in order to obtain it . The law did not provide for any additional requirements to such a statement , save that the individual concerned was to be warned of his or her criminal responsibility for deliberately giving false information . Therefore , the absence of a lawyer had not rendered the statement unlawful and had not violated the applicant ’s right to defend himself . He had been informed of his right under LAW , as confirmed by his signature on the record of his surrender and confession .

ORG of the Komi Republic further noted that the trial court had examined as witnesses all of the police officers who had seen the applicant at the police station with a view to verifying their implication in the alleged crime . They had all denied any wrongdoing . It had been established that , having written his confession , the applicant had suddenly jumped to his feet and hit his head against a wall . ORG also referred to the most recent decision by the investigative authority , dated DATE , by which the criminal proceedings against the police officers had been terminated ( see paragraph CARDINAL above ) , and to the results of the internal police inquiry dismissing the applicant ’s allegations of illtreatment ( see paragraph CARDINAL above ) . It upheld the judgment .

The applicant ’s counsel unsuccessfully raised the issue of the admissibility of the record of the applicant ’s surrender and confession in her requests for supervisory review of the case before ORG of GPE and ORG of GPE . The former court rejected it for the same reasons as before ( decision of a judge of ORG of GPE DATE dismissing the request , as endorsed by the President of that court on DATE ) .

ORG of GPE similarly stated that the applicant ’s argument – that the statement of his surrender and confession had been obtained in the absence of a lawyer – lacked a basis in domestic law , and that the allegation of the applicant ’s illtreatment at the hands of the police was unsubstantiated , as shown through its examination by the trial court which had heard the police officers , particularly PERSON , PERSON and PERSON ( decision of a judge of ORG of GPE of DATE dismissing the request for supervisory review , as endorsed by a Deputy President of ORG on DATE ) .