Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE . She is the widow of NORP

On DATE PERSON attempted to smuggle QUANTITY of waste containing precious metals into GPE . The waste was hidden in the fuel tank of his car . However , it was found at the border and seized by the NORP authorities . PERSON was arrested . J. , a suspected organiser of the smuggling , fled to GPE .

Investigating authorities asked NORP , an expert in geology , to give an expert opinion in respect of the content of precious metals in the waste . According to the expert opinion , dated DATE , the value of the metals was CARDINAL kroons ( EEK ) ( approximately corresponding to MONEY ( ORG ) ) . This value was above the limit of a “ significant amount ” as defined in criminal law . P. who apparently had certain interests in the matter , approached PERSON and asked him to prepare another expert opinion , which would state that the value of the metals was lower . NORP drew up another report , dated DATE , which stated that the value of the seized metals was EEK CARDINAL ( EUR CARDINAL ) , which was below what was designated as a “ significant amount ” . Smuggling of less than a “ significant amount ” of goods would not have been a criminal offence but a misdemeanour . P. sought to pass , through an intermediary , the new expert opinion , along with a sum as a bribe , to an officer dealing with the matter . However , the intermediary was apprehended when handing over the money and the second expert opinion .

On DATE NORP was arrested . His home and later his workplace were searched . A large amount of various substances containing precious metals as well as pure precious metals was seized , including QUANTITY of silver , QUANTITY of gold , CARDINAL silver bars , CARDINAL diamonds and CARDINAL silver - coloured spoons .

On DATE NORP committed suicide in the detention facility . He was taken to hospital in a state of clinical death , and died there on DATE .

In the case file there are CARDINAL decisions of the police concerning the discontinuance of criminal proceedings in respect of NORP

In a decision of DATE the above situation was described , including the fact that CARDINAL expert opinions had been drawn up by NORP It was concluded that he had knowingly given a false expert opinion and had thereby committed an offence under LAW ( PERSON ) . The criminal proceedings against him were terminated because of his death .

NORP In a decision of DATE , firstly , it was stated that the applicant had committed the offence under LAW .

Secondly , the decision stated that it had been established that since DATE PERSON had been giving unofficial expert opinions concerning substances containing precious metals . Knowing that such substances were not found in GPE and that they were being smuggled from GPE , he had committed an offence of smuggling as an accomplice ( LAW and LAW ) of LAW ) .

Thirdly , in respect of the silver , gold and diamonds the decision stated as follows :

“ During the search of [ NORP ’s ] home and workplace a large amount of pure precious metals ( [ about ] QUANTITY of silver granules , CARDINAL silver bars , [ about ] QUANTITY of gold , CARDINAL diamonds ) [ and ] other items made of precious metals were found , which refer to purchasing items made of precious metals from the population , and substances containing precious metals [ were also found ] , which were similar to the substance found in a hiding place in [ M. ’s ] car . Therefore it can be concluded that [ NORP ] was involved in the smuggling of substances containing precious metals as an accomplice who analysed the substances ; he was probably also engaged in purchasing , purifying and marketing substances containing precious metals . Under Regulation No . CARDINAL of DATE of ORG , items made of precious metals , precious scrap metal and precious stones may only be purchased and remelted by legal persons whose purchasing point is registered by ORG ( ORG ) and who have an operating licence for the purchasing of precious metals and precious stones and items containing them . Thus , [ NORP ] , who did not have the required licences , committed a large - scale violation of the rules for purchasing metals , and thereby committed an offence under LAW of LAW .

[ R. ’s ] official income according to his tax return for DATE was [ EEK ] CARDINAL [ ORG CARDINAL ] after the deduction of income tax , which indicates that he could not have legally acquired such a quantity of precious metals . [ R. ’s ] wife , [ the applicant ] , is also unaware of the origin of these items .

Nor is it possible to obtain additional evidence in relation to the crimes committed by [ NORP ] , because after his arrest ... [ he ] committed suicide ... ”

NORP The investigator decided to discontinue the criminal proceedings under LAW , LAW and LAW ( CARDINAL ) , and LAW because of NORP ’s death . The precious metals and substances containing precious metals found at NORP ’s home and workplace were ordered to be deposited in a police storage facility since the identity of their legal owner had hot been established and it was unclear to whom they belonged .

By an order dated DATE the police declared the substances and items seized from the car ( see paragraph CARDINAL above ) and from the applicant ’s home and place of work ( see paragraph CARDINAL above ) to be evidence and it was decided that they should be deposited in a police storage facility . The evidence was inspected on DATE .

On DATE the applicant enquired of the police about the death of her husband , NORP , in the police custody , about the charges against him and about the return of the items which were not rare earth , such as the silver granules , diamonds , gold and silver bars that had been seized during the search .

On DATE the police responded that a decision on the return of the seized items would be made by the officer in charge of the investigation after clarification of their origin .

In the meantime , on DATE the police ordered an expert examination of the seized substances . According to an expert opinion delivered on CARDINAL DATE the packages analysed contained galvanic mud from which metals could be separated by the use of special technology and equipment . Some of the samples contained precious metals .

According to an intestate succession certificate issued by a notary on DATE the applicant and her CARDINAL sons were NORP ’s heirs , each inheriting CARDINAL of his property .

An expert opinion in respect of further items and substances seized from NORP ’s home and workplace was commissioned on DATE . According to an expert opinion given on DATE some of the analysed substances were galvanic waste not known to be generated in GPE , and certain further samples contained precious metals probably bought from the population .

In the meantime , on DATE PERSON , NORP ’s colleague , was interviewed as a witness . He submitted that they carried out CARDINAL expert analyses per year ; the number of official analyses had been CARDINAL per year . He described the powder and “ mud ” the content of which they had analysed . The “ mud ” was a by - product of nickel production ; it was brought from GPE . They did not have equipment in their laboratory for separating precious metals from the “ mud ” , they could only analyse its content . PERSON gave details about persons to whom he had communicated the results of the expert examinations . According to PERSON , NORP had also purchased equipment for the laboratory with his own money , the cost of which was CARDINAL ( EUR CARDINAL,CARDINAL ) . PERSON had suspected that by doing the analyses NORP had been involved in something illegal and that he also got paid for this . He referred to NORP ’s new cars and construction of a house as something that he could not have afforded on his salary . According to PERSON , the substances and items taken from a table in their workplace were samples they had examined . PERSON could not tell anything about the origin of the items found in NORP ’s cupboard and locked drawer .

On DATE the applicant was interviewed as a witness . According to the report on the interview drawn up by the police , the applicant stated that she did not know anything about the items seized from their garage and their home . These items had been acquired by NORP , who put his money into precious metals since he apparently had no trust in bank accounts . In respect of the diamonds she could not say anything ; these had been , like the other substances and items , acquired by NORP The money matters of the family had been handled by NORP ; the applicant even did not know how much he earned in salary .

On DATE the police applied to ORG to authorise the confiscation of the items and substances that had been declared as physical evidence in the criminal case . In respect of the items and substances taken from NORP ’s home and workplace during the search , it was stated as follows :

“ On DATE the items and substances found during the search carried out at [ NORP ’s ] home and workplace were declared to be evidence ( vol . CARDINAL , pp . CARDINAL - CARDINAL ) , as this property had been obtained through crime . Information gathered in the criminal proceedings about [ NORP ’s ] income ( vol . CARDINAL , pp . CARDINAL and pp . CARDINAL - CARDINAL ) and statements by [ NORP ’s ] colleague [ PERSON ] also refer to this fact , that is [ to the fact that ] the property [ had been ] obtained through crime . [ NORP ’s ] wife , [ the applicant ] , was unable to give explanations about the items and substances seized during the search ( vol . CARDINAL , p. CARDINAL ) .

Having regard to the above , it is expedient to request from a court confiscation of the evidence mentioned above , that is of property obtained through crime and prohibited for natural persons in accordance with the “ Rules for the import and export of precious metals and precious stones and products made of them ” ( vol . CARDINAL , pp . DATE ) . ”

On DATE ORG approved the statement of charges . It was noted that the evidence taken from NORP was in the police storage facility . On DATE M. and J. were prosecuted .

On DATE ORG convicted PERSON of attempted smuggling of prohibited goods . J. was convicted as an accomplice . In the judgment , reference was made to statements by anonymous witnesses to the effect that PERSON had for DATE been smuggling substances containing precious metals into GPE ; samples of the substances had been analysed in NORP ’s laboratory . No decision was made in respect of the items seized from NORP On appeal , ORG counsel PERSON did not make reference to these items .

On DATE ORG quashed ORG judgment for insufficient reasoning . It noted , inter alia , that the anonymous witnesses had not been heard at the court hearing and that their statements had been of a general nature . It was also noted that ORG should have indicated what to do with the physical evidence and other seized items . The case was remitted to the first - instance court for a new examination .

In the meantime , on DATE , the applicant again enquired about the return of the items in question . On DATE the police responded that these items were part of the physical evidence in the criminal case and that it was for the judge examining the matter to rule on the measures to be taken in respect of the evidence .

At ORG hearing of DATE the prosecutor requested discontinuance of the criminal proceedings in respect of PERSON and J. under LAW ORG koodeks ) because of the lack of public interest . The defendants agreed . The prosecutor asked the court to confiscate the substances and metals seized from NORP ’s home and workplace . J. ’s counsel PERSON thought that it would be better to leave the latter question open since the applicant could have claims in this respect .

On DATE the ORG discontinued the proceedings as requested , finding that there was no public interest in continuing the proceedings . It ordered PERSON and J. to pay the court costs and certain additional lump sums to the ORG . A separate decision was to be made in respect of the physical evidence found at NORP ’s home and workplace .

On DATE the ORG ordered the confiscation of the substances containing precious metals and the pure precious metals in question . It relied on DATE ( CARDINAL ) of LAW , under which property received as a result of a criminal offence and whose legal owner could not be established was to be transferred to the ORG . It gave the following reasons for the confiscation :

“ The court , having examined the evidence in the criminal case , finds that the materials containing precious metals and the pure precious metals which were found at [ NORP ’s ] home and workplace and which are held in the police depository must be confiscated and transferred to the ORG . ”

A copy of the decision was sent to the applicant .

On DATE the ORG amended its order of DATE by providing an exact list of the substances and items to be confiscated .

The applicant , represented by counsel PERSON , lodged an appeal against the ORG decision of CARDINAL DATE . She argued that the decision contained no reasoning . It had not been established that the substances found at NORP ’s home and workplace had been obtained through crime . Nor had it been established that the identity of their legal owner had not been ascertained . It had only been clear that NORP had been in possession of the property in question . She also complained that the court had made a decision about her rights in written proceedings without inviting her to take part in the proceedings or hearing her , and that she had only received ORG decision by post . She asserted that she was PERSON widow and heir , together with their CARDINAL sons . The applicant requested that ORG decision be annulled and the case remitted for re - examination to ORG .

ORG in its reply to the applicant ’s appeal submitted that the applicant was not a party to the proceedings and therefore her appeal had to be dismissed . If she considered herself to be the legal owner of the property , LAW applied , under which in cases of seized property whose legal owner could not be identified , the legal owner whose identity was established later had the right to reclaim the amounts received from the sale of the seized property from the ORG .

On DATE ORG , in written proceedings , dismissed the appeal . It noted that the applicant was not a party to the proceedings . She had been questioned on DATE as a witness ( see paragraph CARDINAL above ) . ORG had had no obligation to involve her in the determination of what should happen to physical evidence . However , since the applicant ’s rights had allegedly been violated by the confiscation of the property in question , ORG decided to examine her appeal .

ORG stated as follows :

“ ORG finds , on the basis of the evidence in the criminal case , that the items found at [ NORP ’s ] home and workplace that were declared physical evidence constitute property obtained through crime , and that the identity of the lawful owner thereof has not been established .

On the basis of the material of the criminal case there were sufficient grounds to believe that [ NORP ] had been involved in smuggling ; for that reason his home was searched on DATE and CARDINAL items were seized ( vol . CARDINAL pp . CARDINAL - CARDINAL ) . On DATE his workplace was searched and CARDINAL items were seized ( vol . CARDINAL pp . CARDINAL - CARDINAL ) . Some of the seized items were declared to be evidence and were inspected ( vol . CARDINAL pp . CARDINAL - CARDINAL ) . A chemical expert examination was carried out in respect of the physical evidence ( vol . CARDINAL pp . CARDINAL - CARDINAL ) . ORG notes that the list provided in ORG ... decision of DATE corresponds to the list provided in the decision of DATE concerning the evidence ( vol . CARDINAL p. CARDINAL ) .

The criminal proceedings under LAW , LAW and LAW ) , and LAW in respect of [ NORP ] were discontinued on DATE because of his death ( he died on DATE ) . No appeal was lodged against that decision .

According to the decision concerning the discontinuance of the criminal proceedings ( vol . CARDINAL pp . CARDINAL - CARDINAL ) the precious metals and substances containing precious metals that had been declared evidence had been obtained through crime ( LAW of LAW ) and the identity of their legal owner had not been established . Proceeding on the basis of the above , an investigator requested confiscation of these items of physical evidence on DATE , because it was property obtained through crime . In the [ investigator ’s ] request ( vol . CARDINAL pp . CARDINAL - CARDINAL ) evidence was set out demonstrating that the property had been obtained through crime . The evidence included , inter alia , statements by witness [ K. ] ( vol . CARDINAL pp . CARDINAL - CARDINAL ) and [ the applicant ] ( vol . CARDINAL p. CARDINAL ) .

ORG notes that [ the applicant ] , in whose interests the present appeal was lodged , was interviewed as a witness on DATE . It follows from that interview that she knew nothing about the items that had been seized during the search of DATE . She did not know the origin of the items . She knew that they had been obtained by [ NORP ] , who had placed his money in precious metals . In respect of the diamonds she could say nothing ; these had also been obtained by [ NORP ] . As can be seen from the above , [ the applicant ] has not declared that also she had title to some of the items declared as evidence or that they had belonged to [ her and NORP ] as common property .

Since it had been established that the property had been obtained through crime , it had to be confiscated , which was ordered by the ORG decision of CARDINAL DATE . ”

On DATE the police submitted to the assay office of the company ORG GPE the substances containing precious metals , as well as the pure precious metals , confiscated by the court rulings in the criminal proceedings at hand . The list also includes substances and precious metals confiscated from NORP


CASE OF HRVATSKI LIJEČNIČKI SINDIKAT v. CROATIA

Preliminary objection joined to merits and dismissed (Article 34 - Locus standi);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Non-pecuniary damage - finding of violation sufficient

Christoph Grabenwarter;Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

NORP The applicant union is a trade union of medical practitioners incorporated under NORP law . Its registered office is in GPE .

On DATE the Government of GPE on the CARDINAL side , and ORG for ORG , ORG , ORG in ORG , and the applicant union on the other , concluded LAW for ORG ( GPE ugovor za djelatnost zdravstva i zdravstvenog osiguranja – hereinafter “ LAW ” or “ the main LAW ” ) . Its clause CARDINAL stipulated that the agreement would enter into force on DATE if approved by a majority of the votes cast in a referendum , in which CARDINAL of those employed in the health - care institutions and ORG voted . ORG was approved in the referendum held on DATE and entered into force , as envisaged , on DATE .

NORP In order to regulate issues specific to doctors and dentists , on DATE the Government of GPE and the applicant union also concluded ORG for ORG ( PERSON kolektivni ugovor za liječničku i stomatološku djelatnost ) , which formed an annex ( hereinafter “ the Annex ” ) to the above - mentioned main Collective Agreement . Clauses CARDINAL and CARDINAL ) of the ORG stipulated that if doctors approved it in a referendum , it would enter into force on DATE .

On DATE ORG for ORG of Croatia and ORG instituted civil proceedings against the ORG and the applicant union , seeking to declare the FAC null and void because it had not been entered into by all the trade unions that had concluded the main ORG , contrary to the law ( for a more detailed description of the course of those proceedings see paragraphs CARDINAL below ) .

On DATE the Government of GPE adopted an instruction whereby it ( a ) instructed the ORG Attorney ’s ORG to acknowledge the ORG claim in those proceedings because it was well - founded , with a view to having the FAC declared null and void , and ( b ) instructed ORG to immediately commence negotiations on the conclusion of a new collective agreement for the medical and dentistry sector .

Meanwhile , on DATE the referendum committee issued a decision to hold the referendum mentioned in the FAC ( see paragraph CARDINAL above ) .

NORP However , on DATE the President of ORG ( ORG - socijalno vijeće ) DATE a tripartite body consisting of representatives of trade unions , employers and the Government – set aside the decision on holding the referendum .

NORP The referendum was nevertheless held on DATE . Of CARDINAL doctors , CARDINAL voted ; CARDINAL voted “ yes ” and CARDINAL voted “ no ” .

On DATE the President of ORG issued a decision not to recognise the results of the referendum .

In a letter to ORG of DATE , the applicant union announced a strike for DATE . It stated that the strike was being organised in order to ( a ) protect the social and economic interests of doctors by insisting that the Government of GPE honour its obligations arising from the ORG , ( b ) have the results of the referendum on the approval of the FAC recognised , and ( c ) , as an subsidiary ground for the strike , address issues specific to doctors and dentists within the healthcare system by demanding that a collective agreement for the medical and dentistry sector be concluded . In particular , as regards the last - mentioned ground the applicant union stated as follows :

“ – addressing issues specific to doctors within the healthcare sector by concluding a collective agreement for the medical and dentistry sector .

As a subsidiary ground for the strike , ORG notes that the [ main ] ORG for ORG does not address issues specific to the medical and dentistry professions . Therefore , on the instruction of ORG and in accordance with the opinion of ORG ... of DATE , the ORG to that ORG addressing issues specific to doctors was concluded at the same time [ as the aforementioned collective agreement ] . In that way , issues specific to doctors within the healthcare and health - insurance sectors were comprehensively addressed . Given that at present the Government of GPE refuse to apply LAW for ORG [ i.e. the ORG ] , and issues specific to the medical and dentistry professions , including a salary increase and other pecuniary rights of doctors , are not addressed in the [ main ] ORG for ORG , a subsidiary ground for the strike is to demand that the ORG address issues specific to jobs and professions of doctors and dentists within the healthcare and health - insurance sectors . ”

On DATE ORG invited the applicant union to conclude a new collective agreement for the medical and dentistry sector in the form of an annex to the main ORG . The draft of the new annex was enclosed with the ORG ’s letter . ORG emphasised that the draft envisaged a salary supplement amounting to PERCENT of the basic salary of doctors and dentists in DATE on account of their increased responsibility for the life and health of patients . It also added that the other trade unions , parties to the main ORG agreed with the draft , and invited the applicant union to inform it within DATE whether it accepted the draft .

On DATE the applicant union informed the ORG that , regrettably , the proposed draft did not address the important issues specific to doctors and dentists within the healthcare sector .

On DATE the Government of Croatia adopted a decree whereby it unilaterally increased salaries of doctors and dentists by PERCENT in DATE ( see paragraph CARDINAL below ) .

On DATE , DATE , the ORG brought an action against the applicant union in ORG ( Županijski sud u GPE ) , asking the court to prohibit the announced strike . The plaintiff argued that the announced strike would be illegal because it would seek to enforce the ORG , which had never entered into force given that the decision to hold the referendum required for its coming into force had been set aside ( see paragraphs CARDINAL , DATE and DATE above ) .

By a judgment of DATE ORG found for the ORG and prohibited the strike . It held that seeking compliance with the obligations arising from a collective agreement or the recognition of the results of a referendum were not permitted grounds for a strike under section CARDINAL ) of LAW ( see paragraph CARDINAL below ) . The relevant part of that judgment reads as follows :

“ From the cited provision [ that is , section CARDINAL(CARDINAL ) ] it follows that , by using the formulation ‘ in order to protect and promote the economic and social ORG , the legislator clearly excluded enforcement of the rights stipulated in a particular collective agreement as a permitted ground for a strike because ... the individual and collective enforcement of rights stipulated in a collective agreement is regulated by sections [ CARDINAL ] and [ CARDINAL ] of LAW .

As regards the subsidiary ground for the strike ... it has to be noted that the defendant ’s representative stated at the main hearing that this ground had been listed as subsidiary in case [ the ORG was in the meantime declared invalid ] in the [ parallel ] proceedings pending before ORG .

Finally , it has to be concluded that a strike is legally allowed only in industrial disputes on ... matters that are not legally regulated , and not in those which [ are ] . Given that the defendant insists on compliance with the [ Annex ] , it is evident that the matters [ in dispute ] ... are regulated by that ORG and that the procedure for [ its ] entry into force is also legally regulated , for which reason the substantive requirements for organising the strike are not satisfied . ”

NORP The applicant union then appealed against that judgment to ORG ( PERSON ) .

On DATE the applicant union held the strike as planned because under the domestic law its appeal prevented ORG judgment from becoming final . According to media reports the applicant union alleged that PERCENT of CARDINAL doctors and dentists had participated in the strike whereas the Minister of Health claimed that PERCENT of them had actually been striking while the others had merely expressed solidarity . The Minister also stated for the media that PERCENT of the services had been rendered and that work stoppages occurred in CARDINAL out of CARDINAL clinical centres , CARDINAL out of CARDINAL university hospitals and in CARDINAL out of CARDINAL general hospitals . The strike lasted until DATE when the applicant union called it off in order to comply with ORG subsequent provisional measure of DATE prohibiting the strike ( see the next paragraph ) .

Following a request by the ORG , on DATE ORG imposed a provisional measure prohibiting the strike until that court ’s judgment of DATE became final , that is , until ORG decided on the applicant union ’s appeal against the judgment . On DATE ORG dismissed the applicant union ’s appeal against the decision imposing the provisional measure .

By a judgment of DATE ORG dismissed the applicant union ’s appeal against ORG judgment of DATE ( see paragraphs CARDINAL above ) . It held that the Annex was invalid because it had not been entered into by all the trade unions that had concluded LAW , contrary to section DATE ) of LAW ( see paragraph CARDINAL below ) , and that therefore any further action based on that agreement , including the strike , was unlawful . The relevant part of ORG judgment reads as follows :

“ Given that the ORG was found to be invalid , that is , unlawful , any further actions by the signatories of such an unlawful collective agreement , such as calling for and holding a referendum ... as well as the two first grounds for the strike , which are also based on the unlawful FAC , are also unlawful .

The view of the first - instance court that it was not necessary to address the third , subsidiary , ground for the strike is correct . This is so because , as stated by the defendant ’s representative at the hearing held on DATE , this ground had been listed as subsidiary in case [ the ORG was in the meantime declared invalid ] in the [ parallel ] proceedings pending before ORG , a condition which has not been met . ”

On CARDINAL DATE the applicant union lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against ORG judgment alleging violations of , inter alia , its constitutionally - guaranteed right to strike and its freedom of association guaranteed by the LAW . In so doing the applicant union relied on LAW ( see paragraph CARDINAL below ) and LAW .

On DATE ORG dismissed the applicant union ’s constitutional complaint and served its decision on the applicant union ’s representatives on DATE . The relevant part of that decision reads as follows :

“ Having established that the [ contested ] judicial decisions were based on the relevant provisions of LAW , the Constitutional Court finds that those decisions were not in breach of the complainant ’s constitutional right [ provided ] in LAW paragraph CARDINAL of the LAW nor [ were they in breach ] of the international - law provisions the complainant relied on . ”

Meanwhile , as already noted above ( see paragraph CARDINAL) on DATE ORG for ORG of Croatia and ORG brought a civil action in ORG ( PERSON ) against the ORG and the applicant union , seeking to declare the LOC null and void .

On DATE ORG found for the plaintiffs and declared the Annex null and void .

On DATE ORG dismissed the applicant union ’s appeal and upheld the first - instance judgment , which thereby became final .

On DATE ORG dismissed a subsequent appeal on points of law ( revizija ) lodged by the applicant union . It endorsed the reasoning of the lower courts which had found the ORG invalid because it had not been entered into by all the trade unions that had concluded the main Collective Agreement , contrary to section DATE ) of LAW ( see paragraph CARDINAL below ) and clause CARDINAL of that collective agreement ( see paragraph CARDINAL below ) .

On DATE ORG dismissed a constitutional complaint lodged by the applicant union .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections CARDINAL and CARDINAL of the Operational - Search Activities Act of CARDINAL DATE ( no . CARDINAL-FZ ) . Those operations led to their criminal convictions for drug dealing .

The applicants disagreed with their convictions and argued that the police had incited them to commit drug - related offences .


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

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

The applicant was born in DATE and lives in GPE . He has been disabled since childhood and has lacked legal capacity since DATE . The application was brought on his behalf by his mother .

At TIME on CARDINAL DATE the applicant was arrested on suspicion of robbery and taken to LOC police station , ORG г. PERSON , “ the LOC ) by Officers PERSON , PERSON and PERSON . , who allegedly beat him when they arrived at the police station .

A report on the applicant ’s arrest was drawn up at TIME , following which the applicant ’s mother was informed about his arrest . She arrived at the police station shortly afterwards . The applicant complained , in the presence of his mother and a lawyer , that he felt unwell and that he had been beaten by the police officers who had arrested him .

An ambulance was called to the police station at TIME on DATE . The applicant was diagnosed as having facial and chest contusions . He told the ambulance medics that he had been physically assaulted by the police .

Another ambulance was called for the applicant at TIME on CARDINAL DATE , to the temporary detention facility . He was diagnosed as having a contusion on the soft tissues of the face and an X - ray examination was recommended . The applicant told the medics that he had injured himself while drunk DATE previously after falling down and hitting his head on the ground .

The applicant was taken to hospital DATE for the X - ray examination and was diagnosed as having a closed fracture of his nose bones with displacement of bone fragments and a chest contusion . He gave the same explanation for the injuries as he had given previously DATE to the ambulance medics at the temporary detention facility .

Upon admission to the temporary detention facility , staff seized , among other items , a pledge ticket for a silver chain and cross which were in pawn until DATE ( worth MONEY ( RUB ) and RUB CARDINAL respectively ) .

On DATE ORG ( “ the ORG ” ) ordered the applicant to be kept under arrest for TIME , until TIME on DATE .

On DATE the applicant was released .

On DATE ORG granted an application from the investigator to place the applicant in a psychiatric hospital for a psychiatric forensic examination .

On DATE the applicant was admitted to a psychiatric hospital , where he stayed until DATE .

On DATE the report on the forensic psychiatric examination of the applicant was concluded . It established that at the time of the events in question the applicant could understand and take responsibility for his actions .

On DATE the pawn shop ticket was returned to the applicant .

On DATE the applicant underwent planned surgery for a fracture of the nose ( rhinoplasty ) .

On DATE the criminal proceedings against the applicant were discontinued owing to a lack of evidence of his involvement in the crime in question .

On DATE the applicant ’s mother complained to the prosecutor ’s office that the applicant had been beaten by the police .

On DATE a forensic medical expert held that the closed fracture of the applicant ’s nose had been caused by a blow from a hard , blunt object with a limited area of impact and that it had resulted in moderately severe health damage . The report went on to say that the injury had occurred shortly before the applicant had sought medical assistance and that it could have been caused on DATE . The possibility of the injury being caused by a fall or that the applicant had inflicted it on himself was excluded . The diagnosis of a chest contusion was found to be unsubstantiated by the information in the medical documents .

On DATE , CARDINAL DATE and DATE , and DATE and DATE the prosecutor ’s office refused to institute criminal proceedings against the police officers who had allegedly ill - treated the applicant for lack of the constituent elements of a crime in their actions . The applicant ’s statements were found to be contradictory and not consistent with the injuries sustained . The applicant ’s mother had not witnessed the alleged beatings and , because the applicant was mentally disabled and had been inebriated when arrested , his statements were assessed in critical fashion . There was also evidence that the applicant had possibly had injuries prior to his arrest . The initial refusal to institute criminal proceedings referred to the following evidence :

- the statements of the applicant ’s mother , who submitted that the applicant had had no injuries when he had left home on CARDINAL DATE and that she had found him at the police station DATE with a swollen face , bruises on his back and with his clothes covered in blood ;

- a statement by the applicant ’s mother that on CARDINAL DATE she had witnessed a quarrel between her son and a certain PERSON . , that she had called the police and that the police had helped her take the applicant home ;

- statements by a witness , PERSON , who had seen the applicant on CARDINAL DATE , shortly before his arrest , drunk , but without any visible injuries ; B. later saw police officers escorting the applicant to a police car , with the applicant showing no resistance . B. did not see the police officers using physical force against the applicant ;

- the applicant ’s statements on the circumstances of his arrest . He submitted , in particular , that the beatings had taken place at the back entrance to the police station and in an out - of - the - way office inside the police station ; the police officers had hit him with truncheons on his back , bottom and legs ( CARDINAL blows ) , and had then punched him on the head and nose ( CARDINAL to ten blows ) . The applicant had started bleeding and the officers had threatened him , warning him not to tell anyone about the beatings ;

- information on the applicant ’s health and his disability , as well as his previous criminal and administrative offence records ;

- documents on the applicant ’s arrest ;

- documents on the ambulance ORG examination of the applicant on DATE in connection with complaints of a bleeding nose and chest pain ;

- the forensic medical report of DATE ( see paragraph CARDINAL above ) ;

- statements by Officers PERSON and PERSON on the circumstances of the applicant ’s arrest . In particular , they submitted that when the applicant had seen them he had started to run in the opposite direction . He had stumbled and fallen forward onto the pavement . When they had lifted him up they had noticed that he had old abrasions on the left side of his face and a bleeding nose , probably from falling on the pavement . His breath had also smelt of alcohol . The applicant had then been escorted to the police car and taken to the police station . He had not resisted arrest and no physical force had been applied to him ;

- statements by Officer PERSON . , who had been waiting for PERSON and PERSON in the police car . He submitted that he had seen PERSON and PERSON escorting the applicant to the car and that the applicant had been visibly drunk . He had had abrasions and dried blood on his face and his clothes had been dirty . No physical force had been used against him ;

- statements by police officers on duty at the police station on CARDINAL DATE about the absence of any conflict situations there on DATE or any complaints of ill - treatment from the applicant ;

- statements by PERSON . , PERSON , NORP , detained at the police station at the same time as the applicant . They submitted that they had not witnessed any clashes between the applicant and the police and had not seen the police use physical force against him ;

- statements by the investigator , ORG , who had questioned the applicant on CARDINAL DATE and to whom he had explained that his injuries ( a scratch on the face and a swollen nose ) had been sustained while he was drunk , either by falling down or in some other way , the applicant had not remembered exactly . The investigator had later called the applicant ’s mother . After she had arrived , the applicant had started complaining that he felt unwell and that he had been beaten by the police , after which an ambulance had been called for him ;

- statements by the investigator NORP , who said that she had questioned the applicant on CARDINAL DATE at the temporary detention facility . He had stated that he had been drinking in the courtyard of his house on DATE and had picked a fight with a certain PERSON . , with whom he had drunk before ;

- information from the temporary detention facility on the applicant ’s injuries at the time of his admission ( a closed fracture of the nasal bones and an abrasion on the left cheek ) and a handwritten note from the applicant to the effect that he had received the injuries after falling down while in an inebriated state and that he had no complaints about the law - enforcement bodies ;

- statements by a certain NORP , who submitted that on CARDINAL DATE the applicant and her husband PERSON . had been drinking together and had had a quarrel .

The subsequent decisions also took into account the following evidence :

- statements by PERSON . , who submitted that he had been drinking alcohol with the applicant on CARDINAL DATE , that they had been so drunk they could not walk in a straight line and had had to hold to one another , and that on their way home they had fallen down several times . On CARDINAL DATE PERSON . and the applicant had again spent DATE drinking together , but had had no arguments . He could not remember whether the applicant had had any injuries on CARDINAL and CARDINAL DATE ;

- an additional forensic medical report of DATE which showed that the injury could have been caused on CARDINAL DATE but that it could not have been caused by the applicant ’s falling down ;

- statements by the doctors who examined the applicant on CARDINAL and CARDINAL DATE and performed the X - ray examination and by the expert who conducted the initial forensic medical examination .

The supervising authority set aside all those decisions , except for the most recent one , as unfounded and ordered additional pre - investigation inquiries .

In the meantime , on DATE the chief of inquiries at the investigations department of the Industrialniy ROVD instituted criminal proceedings against unidentified persons under LAW for the intentional infliction of moderately severe damage to the applicant ’s health at an unidentified place and time , but no later than midnight of DATE .

On DATE , DATE , DATE and CARDINAL DATE forensic medical examinations of the applicant ’s medical file were conducted . The conclusions of the examinations showed that the closed fracture of the nose and swelling of the soft tissues in the nasal area could have been caused DATE . It was not possible to completely exclude the possibility that the above injury had originated as the result of the impact of a slightly protruding object . The injured area was also accessible to the applicant himself . The report of DATE excluded the possibility that the applicant had been injured by falling on the pavement while running away from Officers S. and PERSON given the absence of other injuries on prominent parts of his face ( nose , cheekbones or forehead ) or on other parts of his body ( the stomach or his extremities ) .

On DATE the chief of inquiries at the investigations department of the Industrialniy ROVD decided to suspend the investigation .

NORP However , on DATE the acting prosecutor of LOC set that decision aside . He noted that the case file contained information that police officers at ORG had allegedly inflicted the applicant ’s injuries and transferred the criminal case from the investigations department of ORG to the ORG investigations department of the investigation committee of ORG .

On DATE the chief of inquiries at the investigations department of the investigation committee of ORG resumed the case .

On DATE a witness , I. , ( the victim in the proceedings against the applicant on suspicion of robbery ) submitted that when the alleged robbery had taken place , at TIME on CARDINAL DATE , she had noticed that the applicant had an old abrasion on his face . She did not exclude the possibility that she could have scratched the applicant in the course of the struggle , but she had not hit him and had not seen any injuries on his face DATE when she had seen him at the police station .

On DATE Officer PERSON . was questioned as a witness .

On DATE the proceedings were suspended for the second time . The decision mentioned that the operational - search activities conducted to identify the perpetrator of the assault had not led to any positive results . It provided no further details on the exact measures taken by the investigator .

On DATE the deputy head of the investigations department set that decision aside and held that it was necessary to give the applicant victim status in the proceedings and question him . He also wanted to give the applicant ’s mother the status of the applicant ’s legal representative and question her , to carry out a comprehensive psychological and psychiatric examination of the applicant , to question a number of witnesses on the circumstances of the alleged ill - treatment ( among them Officer S. ) , and to join references from work on Officers K. , S. and PERSON . to the case file .

On DATE the applicant was given the status of a victim in the proceedings and was questioned as such . The applicant ’s mother joined the proceedings as his legal representative and was questioned .

On DATE the proceedings were suspended for the third time , with reference to the fact that the operational - search activities to identify the perpetrator had not led to any positive result . However , on CARDINAL DATE the deputy head of the investigations department set that decision aside and held that it was necessary to question the witnesses to establish all the relevant circumstances of the alleged ill - treatment .

DATE the head of PERSON and the officers present there at the time of the applicant ’s arrest were questioned as witnesses .

Meanwhile , on DATE a fourth decision on suspending the proceedings was taken . However , on DATE the deputy head of the investigations department set the decision aside and listed in detail the investigative measures that were needed . They included questioning the police officers PERSON , PERSON and PERSON . about the circumstances of the applicant ’s arrest , a forensic psychiatric examination of the applicant and , depending on the results of that examination , deciding on the possibility of carrying out identification parades involving the applicant and PERSON , PERSON and PERSON .

On DATE Officer PERSON was questioned as a witness .

The proceedings were suspended for the fifth time on DATE , but were again resumed on DATE . The acting head of the investigations department considered it necessary , inter alia , to put further questions to certain witnesses . He also wanted to carry out a comprehensive psychological and psychiatric forensic examination of the applicant and , depending on the results of that examination , to decide on the possibility of carrying out identification parades involving the applicant and PERSON , PERSON and PERSON . In addition , he wanted to request documents on the applicant ’s hospital treatment after DATE and join them to the case file and to carry out an additional forensic medical examination .

On DATE another witness , NORP , ( an acquaintance of the applicant ’s mother ) stated that he had seen the applicant ’s arrest on CARDINAL DATE . The applicant had been escorted by CARDINAL people – one wearing a police uniform and the other in plain clothes . The applicant had not shown any resistance , had had no visible injuries and had not been subjected to physical force .

On DATE the applicant had an additional forensic psychiatric examination , which established that at the time of the alleged beatings he could not correctly perceive the factual aspect of events or understand the meaning and nature of actions taken in his respect .

On DATE and DATE CARDINAL witnesses , PERSON , stated respectively that they had seen the applicant on CARDINAL DATE , shortly before his arrest , that he had been dressed tidily and had had no injuries on his body or blood stains on his clothes . They had later seen him being escorted by CARDINAL police officers to a police car , the applicant had acted calmly , his clothes had been tidy and no physical force had been applied to him . A similar statement was made by the witness B.

On DATE the investigator decided to suspend the proceedings for the sixth time . He relied on the results of the applicant ’s forensic psychiatric examination of DATE and therefore the impossibility for the investigation to rely on his statements , as well as the absence of eyewitnesses of the circumstances in which the applicant had received his injuries . However , on DATE ORG found that decision unlawful and unsubstantiated .

On DATE the proceedings were resumed , only to be suspended for the seventh time on DATE for the same reasons as given in the decision of DATE . However , on DATE ORG found the decision of CARDINAL DATE unlawful and unsubstantiated , and on CARDINAL DATE the proceedings were again resumed .

On DATE the proceedings were yet again suspended . The decision said that the applicant ’s statement about his alleged ill - treatment by the police officers PERSON , PERSON and PERSON . could not be admitted as evidence in view of the results of the forensic psychiatric examination of DATE . The applicant ’s mother ’s statements had derived from those of the applicant himself . There was no direct evidence proving that the applicant had sustained his injuries at the hands of S. , PERSON and PERSON . The fact that those officers had arrested the applicant and taken him to ORG had not proved that they had been involved in the alleged ill - treatment . Exhaustive measures had been taken to establish the time the applicant had sustained his injuries . The witnesses PERSON , NORP and PERSON , who had seen the applicant ’s arrest , had stated that they had not seen the police officers use any physical force against him .

On DATE the proceedings were resumed and subsequently suspended for the ninth time on DATE . The investigation established that on CARDINAL DATE the applicant had been taken to ORG , PERSON and PERSON . The applicant had complained that those officers had beaten him after his arrest . According to the forensic medical examination of DATE , the applicant had had a closed fracture of bones in the nose and swelling of the soft tissues in the nasal area , which had been caused by the impact of a hard , blunt object and could have occurred DATE . The investigation had not confirmed any fact of ill - treatment of the applicant by PERSON , PERSON and PERSON . That was in accordance with the statements by the police officers , who had denied inflicting any injuries on the applicant , the witnesses who had seen the applicant ’s arrest , the records of identification parades and other evidence . There had been no other evidence attesting directly to the fact that a crime had been committed by the police officers . In addition , the decision reiterated that the applicant ’s statements could not be relied on in view of the results of the forensic psychiatric examination of DATE and could not be a basis for bringing charges against the police officers . The mother ’s statements had derived from those of the applicant and therefore could not be relied on either .

On DATE ORG found the decision of CARDINAL DATE unlawful and unsubstantiated and on DATE the proceedings were again resumed .

On DATE P. , an expert in psychiatry – a doctor of medical sciences and a professor – was questioned as a witness . He submitted that the conclusions of the psychiatric expert examination of CARDINAL October CARDINAL on the applicant ’s mental state at the time of the events in question were more consistent and reliable than those of the applicant ’s previous psychiatric expert examination on DATE .

On DATE the proceedings were suspended for the tenth time . The decision referred to the applicant ’s arrest on DATE , his statement as to the alleged ill - treatment by the police officers PERSON , PERSON and PERSON . , the results of the forensic medical examination of DATE with a description of his injuries and the time they were inflicted , and the police ORG denial of the alleged ill - treatment .

Proceedings were resumed on DATE . Formal confrontations were carried out between the witnesses B. and PERSON , Officer PERSON and PERSON , Officer PERSON . and PERSON , the applicant and the investigator PERSON , the applicant ’s mother and ORG , the applicant and the police officer who had taken him from ORG to the temporary detention facility and had allegedly threatened him on their way there by warning him not to tell anyone about the beatings , and the applicant and Officer PERSON

On DATE the proceedings were suspended for the eleventh time . The decision noted that it had been impossible to reconcile the statements of the police officers and the witnesses as to whether the applicant had had any injuries on his face at the time of his arrest . However , on DATE ORG found that decision unlawful and unjustified and the proceedings resumed again on DATE .

On DATE another police officer , PERSON , was questioned as a witness ( the case file contains no earlier record , if any , of the questioning of S. as a witness ) .

The proceedings were again suspended on DATE , DATE , DATE and CARDINAL DATE , and resumed respectively on CARDINAL DATE , CARDINAL DATE , DATE and DATE . In addition to the previously collected evidence , the decisions on suspension relied on :

- statements by the investigator ORG ;

- statements by PERSON . , NORP and PERSON . , detained at the police station at the same time as the applicant ;

- a radiology laboratory assistant PERSON and the radiologist NORP ;

- an expert , DATE . , on the nature of the applicant ’s injuries ;

- statements by PERSON . ;

- a statement by the witness , PERSON , who submitted that she had seen a fight between the applicant and the witness NORP , but that she had not seen any injuries on the applicant ’s body at that time ;

- Kr . , who submitted that she had seen no injuries on the applicant on CARDINAL DATE and that when she had seen him on DATE he had had a swollen nose . He had had no other visible injuries ;

- a statement by the officer on duty at the temporary detention facility , P. , who called an ambulance for the applicant on CARDINAL DATE ;

- the ambulance medics who examined the applicant on CARDINAL DATE and CARDINAL DATE , but who could not remember any circumstances of value to the investigation given the length of time since the events in question ;

- the neurosurgeon NORP , who examined the applicant on CARDINAL DATE at the hospital and submitted that he could have received his injuries DATE prior to the examination ;

- the lawyer PERSON , present at the applicant ’s questioning at the police station on CARDINAL DATE . Owing to the passage of time , he could not remember whether the applicant had any visible injuries or if he had told him anything about the circumstances of the alleged beatings .

On DATE the proceedings were suspended for DATE and last time . Taking into account the evidence that had been collected , the investigating authority came to the conclusion that the applicant had received his injuries no later than TIME on DATE ( the time of his examination by ambulance medics at ORG ) . However , it was impossible to make an objective and reliable conclusion as to the exact time and circumstances of the injuries . The results of the applicant ’s psychiatric expert examination precluded the investigating authority from relying on the applicant ’s submissions as evidence and there was no other evidence proving beyond doubt that his injuries had been inflicted in the circumstances he had described . In addition , the experts had arrived at the conclusion that the injury could have been caused anytime DATE .

According to the applicant , while the investigator was questioning him as a suspect on CARDINAL DATE , a trainee police officer , ORG , had taken the keys to his flat and had gone there and searched his room . A gold bracelet had allegedly gone missing after the search .

According to the applicant , Officers A. and PERSON had allegedly threatened him on DATE , warning him not to reveal that he had been beaten at the police station and to say instead that he had injured himself DATE before in a fight .

DATE the applicant ’s mother sought to have criminal proceedings instituted against ORG and PERSON for abuse of position .

The investigator refused several times to institute criminal proceedings .

The most recent refusal to institute criminal proceedings against ORG is dated DATE . On DATE the ORG found at final instance that the aforementioned decision was lawful and justified . It had been established that the applicant ’s mother had let I. into the flat , answered his questions , and had then let him into the applicant ’s room and helped him search it . It had also been established that the disappearance of a gold bracelet had been alleged long after the events complained of . For those reasons , there could not reasonably have been an expectation that the incident would be investigated .

The most recent refusal to institute criminal proceedings against NORP and PERSON is dated CARDINAL DATE . The inquiry found no evidence to support the applicant ’s allegations . There is no information in the case file as to whether the applicant challenged the lawfulness of that decision in court .

The applicant ’s mother brought civil proceedings against ORG on behalf of herself and the applicant , seeking compensation for non - pecuniary damage caused by the unlawful prosecution of the applicant and the resulting medical treatment . She also sought compensation for pecuniary damage , representing the cost of the silver chain and cross which could not be recovered from the pawnshop and other costs and expenses .

On DATE ORG granted the claim in part and ordered ORG to pay the applicant RUB CARDINAL for the non - pecuniary damage caused by his unlawful prosecution . It refused the claim for recovery of the cost of the silver chain and cross , holding that the mother , as the applicant ’s legal representative , could have recovered them from the pawnshop herself .

On DATE ORG upheld the above judgment on appeal , increasing the amount awarded in respect of nonpecuniary damage to RUB CARDINAL . The court further held that the applicant ’s mother had failed to submit any evidence that she had asked the investigator to return the pawnshop pledge ticket and that such a request had been refused .


No violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonably necessary to prevent fleeing);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

The applicant was born in DATE and lives in GPE .

On DATE the applicant was charged with domestic violence .

On DATE a bill of indictment in respect of the applicant was lodged with ORG . Subsequently , on an unknown date the case was returned to the prosecution authorities in order to amend the charges .

On DATE ORG ordered the applicant to undergo a psychiatric assessment in a psychiatric hospital . The applicant did not lodge an interlocutory appeal against this decision .

On DATE the applicant was brought by the police to ORG in order to undergo the psychiatric assessment . However , he refused to stay and left the waiting room . On DATE he was ordered to come to the hospital on DATE , on pain of detention on remand . On DATE the applicant came to the hospital . However , he refused to stay for the assessment , explaining that he had many urgent matters to attend to .

On DATE ORG ordered the applicant ’s detention on remand in accordance with Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW ( “ the ORG ” ) ( see paragraphs CARDINAL and CARDINAL below ) . The court held that in view of the applicant ’s GPE and his sister ’s testimonies there was a reasonable suspicion that the applicant had committed the offences with which he was charged . In addition , there was a reasonable risk that the applicant would obstruct the proceedings or that he would go into hiding . The court noted that the applicant ’s mother had admitted that he had stayed irregularly at his home address : he had been coming home TIME and leaving TIME . Furthermore , the applicant had failed to comply with the order of DATE to undergo a sixweek psychiatric assessment ( see paragraph CARDINAL above ) . The court noted the applicant ’s GPE submissions that his mental condition was bad , he was not able to function independently and he was in need of urgent medical assistance . The court also attached importance to the fact that the applicant had previously behaved in a similar manner . He had been admitted to a psychiatric hospital on DATE , however DATE he had left the hospital on his own initiative . Consequently , in the court ’s view the applicant ’s submissions that he would comply with the order to undergo a psychiatric assessment were not convincing .

An appeal lodged by the applicant was dismissed by ORG on DATE . The court mainly referred to the fact that the applicant had still to undergo a psychiatric assessment . It also noted the fact that the applicant stayed irregularly at his home address , therefore once released he might go into hiding .

NORP The applicant ’s detention was subsequently prolonged on the following dates : CARDINAL DATE ( until DATE ) , CARDINAL DATE ( until DATE ) and DATE ( until DATE ) . The court relied on the grounds previously given . The applicant unsuccessfully appealed against all those decisions .

On DATE ORG ordered that the applicant undergo a psychiatric assessment at the hospital wing of ORG . The applicant underwent this assessment DATE and DATE .

On DATE the amended bill of indictment was lodged with ORG . The applicant was charged with domestic violence and possession of QUANTITY of marijuana .

On DATE ORG again extended the applicant ’s detention ( until DATE ) . The court stressed that there was a reasonable risk that the applicant would obstruct the proceedings and that he would go into hiding . This risk was particularly valid in view of the difficulties which the applicant had caused in the past by his repeated refusal to undergo a psychiatric assessment .

During a hearing held on DATE the applicant ’s father and sister refused to testify . The applicant was released from detention on DATE . Subsequently , on DATE , the applicant ’s mother also refused to testify .

ORG held further hearings on DATE , DATE and DATE and on DATE and CARDINAL DATE .

On DATE ORG gave judgment , acquitting the applicant on charges of domestic violence and convicting him of possession of a small amount of marijuana . The court sentenced the applicant to CARDINAL months’ imprisonment stayed for DATE .

Following an appeal by the applicant , the judgment was quashed ( in its part concerning possession of drugs ) by ORG on DATE . The proceedings were subsequently discontinued by ORG on DATE . The court found that the prohibited act committed by the applicant had not constituted an offence because of its insignificant social consequences ( znikoma szkodliwość społeczna czynu ) .

On DATE the applicant instituted proceedings for compensation for unjustified detention under LAW ORG ( see paragraph CARDINAL below ) before ORG . He stated that while the main reason for his detention on remand had been a DATE psychiatric assessment , he had been kept in detention for DATE . Moreover , the assessment had begun DATE after his arrest . He also stressed that there had been no risk that he would have attempted to obstruct the proceedings .

His claim was dismissed by ORG on DATE . The court referred at the outset to ORG Resolution of DATE ( see paragraph CARDINAL below ) . It further noted that in the present case there had been no breach of procedural provisions of the ORG since the detention on remand had been applied mainly in view of the applicant ’s repeated refusal to comply with the ORG orders . Consequently , the applicant ’s detention on remand had been undoubtedly justified , even though eventually he had been acquitted .

On DATE ORG dismissed the applicant ’s appeal . The court repeated the reasons given by ORG . It stressed that the applicant had clearly obstructed the proceedings by refusing to undergo a psychiatric assessment . Furthermore , there had been a risk that he could have gone into hiding . Lastly , the court noted that as soon as the applicant ’s parents and sister had refused to testify , the applicant had been released .

On DATE DATE the applicant ’s cassation appeal was dismissed as manifestly ill - founded by ORG .


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

Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in DATE . On DATE ORG of GPE found the applicant guilty of murdering his girlfriend and sentenced him to DATE imprisonment in a high - security facility . On DATE ORG of GPE upheld the conviction on appeal .

NORP Since DATE the applicant has been serving his sentence in the IK-CARDINAL facility ( NORP designation УЗ-CARDINAL/CARDINAL ) , a correctional institution located in LOC . The sleeping area was severely overcrowded , with each prisoner having QUANTITY of personal space .

The Government submitted copies of the supervising prosecutor ’s infringement reports showing that a severe overcrowding had been a constant problem in the IK-CARDINAL facility at least until DATE .


André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Sergiy Goncharenko;Síofra O’Leary

NORP The applicant , Mr PERSON Bats , is a NORP national who was born in DATE and lives in ORG .

NORP The applicant was represented by PERSON , a lawyer practicing in PERSON of LOC . ORG ( “ the Government ” ) were represented , most recently , by their Agent , PERSON , of ORG .

PERSON , the judge elected in respect of GPE , was unable to sit in the case ( Rule CARDINAL of the Rules of Court ) . The President of ORG decided to appoint PERSON to sit as an ad hoc judge ( Rule CARDINAL § CARDINAL(b ) ) .

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

DATE the applicant was dismissed several times from his position as chief forester at ORG and reinstated following court proceedings .

On DATE the applicant was again dismissed from his position for inadequate performance of his professional duties .

On DATE the applicant instituted civil proceedings in the Baltskiy District Court to be reinstated and claiming various payments in compensation .

On DATE ORG allowed the applicant ’s claims in part . In particular , it found that the defendant , ORG , had failed to substantiate its allegations that the applicant ’s performance at work had been inadequate and ordered his reinstatement . It also awarded him part of the sum claimed in compensation .

The defendant appealed , maintaining that the applicant had been dismissed lawfully .

On an unspecified date the NORP ORG of Appeal ( “ the Court of Appeal ” ) scheduled a hearing for DATE .

On DATE ORG sent to the applicant , by registered mail with acknowledgement of receipt , an envelope which the applicant received on CARDINAL or DATE ( see paragraph CARDINAL below ) .

A copy of the envelope submitted to the ORG bears no indication of its contents and the parties disagree as to those contents :

The applicant received the envelope on DATE or DATE . A copy of the acknowledgement slip provided to ORG contains a signature , purportedly that of the applicant , and a handwritten note , “ CARDINAL ” , in the field of the slip for the “ collect payment on delivery ” arrangements . According to the applicant , even though he received the envelope , he was not familiar with the contents of the slip , did not sign it and the signature appearing on it was not his .

According to an undated certificate issued by ORG clerk , on CARDINAL ( sic ) DATE both the applicant and the defendant were informed of the hearing , to be held at TIME on DATE .

On an unspecified date the applicant lodged written comments with ORG in reply to the appeal .

On DATE ORG examined the case in the applicant ’s absence but in the presence of the defendant ’s representative , who gave oral submissions to the effect that he maintained the appeal . The court found no reason warranting an adjournment on account of the applicant ’s absence as the applicant had not filed any such request and had been duly notified of the time of the hearing . It examined the evidence in the file and the applicant ’s written comments .

On DATE the court reversed the judgment of the trial court . Having looked again at the evidence , it concluded that the applicant had systematically failed to carry out his professional duties and had therefore been lawfully dismissed .

In DATE the applicant appealed in cassation , arguing that he had performed his professional duties properly . The applicant also complained that the appellate court had had no basis whatsoever to state that he had been duly notified of the appeal hearing . The only judicial correspondence he had received in connection with the preparation of the appeal hearing had contained a copy of the other party ’s appeal . He had never been served with any summonses for the hearing informing him of its date and time . As a result , he had been deprived of the opportunity to confront his adversary before ORG , which had led to the reversal of the earlier judgment in his favour .

On DATE ORG dismissed the applicant ’s application for leave to appeal , concluding that ORG had complied with the substantive and procedural law in adjudicating the applicant ’s case .

On DATE ORG refused to provide the applicant with a copy of the summons notifying him about the appeal hearing or evidence that such a summons had been delivered , stating that there were no such documents in the case file .

Following communication of the case to the respondent Government , on CARDINAL DATE ORG informed ORG office that there was no summons for the hearing at ORG in the case file because it had been sent to the applicant . The case file contained an acknowledgment slip showing that the summons in question had been served on the applicant in person .

The relevant provisions of LAW as worded at the material time read as follows :

“ CARDINAL . Parties to proceedings shall be summoned via judicial summonses ( повістками про виклик ) ...

A judicial summons shall be served in a manner that provides the persons summoned with sufficient time to appear before the court and to prepare for taking part in the judicial examination of the case , but it shall be served DATE before the court session ...

A judicial summons and a slip acknowledging receipt ... shall be delivered by registered mail ... or via couriers to the address declared by the party or another person engaged in the proceedings . A party or his / her representative upon their consent may be given a judicial summons to be served on the respective participants of civil proceedings ... ”

“ CARDINAL . A judicial summons addressed to an invidual shall be handed to them against their signature ...

The slip acknowledging receipt of a summons with a mention of the date of service shall be returned ... to the court on DATE ... ”

“ CARDINAL . The appellate court shall adjourn should a party fail to appear , where there is no information about whether he / she has been served with the summons ...

Failure to appear by the parties or other persons engaged in the proceedings who have been duly notified of the time and place of the examination of the case shall not prevent the [ the court ] from examining the case . ”

“ CARDINAL . A court decision must definitely be quashed and the case remitted for fresh examination if : ...

CARDINAL ) the case was examined in the absence of any person engaged in the proceedings who was not duly notified of the time and place of the hearing ; ...

Other instances of a breach or incorrect application of procedural rules may only be grounds for quashing a court decision where the breach has resulted in incorrect adjudication of the case ... ”

By ORG no . CARDINAL of CARDINAL DATE the Cabinet of Ministers enacted a set of ORG , which were in effect at the material time and which were repealed on DATE . CARDINAL of the Rules provided that summonses were to be accepted for delivery by registered mail , with an acknowledgement of receipt , in envelopes which bore the words “ ORG summons ” .