CASE OF CHIM AND PRZYWIECZERSKI v. POLAND

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione personae;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

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

ORG ( ORG PERSON “ the FOZZ ” ) was established by LAW DATE , which entered into force on CARDINAL DATE . It was a legal entity whose liabilities were guaranteed by ORG . The task of the ORG was to collect and manage the funds earmarked for servicing GPE ’s foreign debt . Those funds were to be used to repay GPE ’s foreign debt .

The ORG was managed by its Director General , who had statutory authority to independently represent the ORG and enter into contracts on its behalf . The first applicant was initially appointed Head of ORG and later Deputy Director General of the ORG . The second applicant was the Managing Director and Chairman of ORG of ORG based in GPE .

Criminal proceedings were instituted following a complaint lodged by PERSON , a NORP national , at FAC in GPE .

An investigation was opened on DATE . On DATE ORG filed a bill of indictment with ORG . He charged the first applicant and another individual , PERSON , with misappropriation of public property and mismanagement . On DATE the court decided to return the bill of indictment to the prosecutor so that certain shortcomings in the investigation could be rectified .

On DATE the prosecutor filed an updated bill of indictment with ORG .

The first applicant was charged with misappropriation of the ORG ’s property of a considerable value committed with other persons as a continuous offence between DATE and DATE . She was further charged with failure to perform her duties to the detriment of the ORG .

The second applicant was charged with misappropriation of CARDINAL,CARDINAL,CARDINAL.CARDINAL GPE dollars ( ORG ) to the detriment of the ORG committed with other persons as a continuous offence DATE .

There were CARDINAL other accused in the case .

In DATE the applicants’ case was assigned to Judge PERSON The trial started on DATE and a number of hearings were held until DATE . On DATE Judge PERSON was appointed Minister of ORG and consequently the whole trial had to be restarted .

On DATE the President of the CARDINALth ORG asked the President of ORG to assist the ORG in finding a ORG judge from the appellate divisions who could hear the applicants’ case . He stated that , owing to a lack of judges and the volume of work in the CARDINALth ORG , there were no judges who could examine the case in question swiftly .

On DATE the President of ORG referred the request to ORG ( kolegium PERSON ) . She informed it that CARDINAL of the judges , Judge PERSON , had not agreed to a proposal by the management of the court to be transferred to the CARDINALth ORG to examine the ORG case . However , Judge PERSON stated that he would go if the ORG took a decision in that regard .

On DATE the ORG unanimously decided to transfer Judge PERSON from the CARDINALth ORG to the CARDINALth ORG with effect from DATE . It further decided to assign him to case no . ORG . In a letter of DATE the President of ORG informed Judge PERSON of that decision .

On DATE the President of the CARDINALth ORG assigned Judge PERSON to case no . VIII K CARDINAL/CARDINAL “ in accordance with the decision of ORG ” .

The new trial bench was composed of Judge PERSON , acting as president , and CARDINAL lay judges . A substitute judge and CARDINAL substitute lay judges were also assigned to the case .

The first hearing before the new bench was set for DATE . On that date Judge PERSON allowed journalists to record images and the identities of the defendants . He stated on that occasion that “ there are CARDINAL victims in this case , and society has the right to have images and personal information about the defendants ” .

There were CARDINAL hearings held in the trial court . Some CARDINAL witnesses were heard , and a number of expert accounting reports and CARDINAL documents were examined . The files of the case were very voluminous .

On DATE the trial court finished hearing evidence in the case .

On DATE ORG delivered its judgment . Judge PERSON presented the main reasons for the verdict orally .

NORP The trial court convicted the first applicant of misappropriation of the ORG ’s property of a considerable value committed with other persons DATE and DATE ( LAW in conjunction with Articles CARDINAL and CARDINAL § CARDINAL of LAW ) . The trial court held that , in her capacity as Head of ORG and later Deputy Director General , she had misappropriated a total of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL from the ORG for the benefit of herself and other entities ( point III of the operative provisions of the judgment ) . With regard to that offence , the court sentenced her to DATE imprisonment and a fine .

The trial court further convicted the first applicant of failure to perform her duties and of exceeding her authority DATE and DATE ( LAW in conjunction with LAW of DATE ) . As a result of those failings the ORG had suffered damage of CARDINAL CARDINAL,CARDINAL,CARDINAL.CARDINAL Polish zlotys ( ORG ) ( point LAW of the operative provisions of the judgment ) . With regard to that offence , the trial court sentenced her to CARDINAL GPE imprisonment and a fine .

The trial court convicted the second applicant of misappropriation of the ORG ’s property of a considerable value ( USD MONEY ) committed with other persons ( LAW in conjunction with LAW of LAW , point GPE of the operative provisions of the judgment ) . With regard to that offence , the trial court sentenced him to CARDINAL half years’ imprisonment and a fine .

It further convicted the second applicant of theft of the ORG ’s property of a considerable value ( ORG CARDINAL,CARDINAL,CARDINAL ) committed with other persons ( LAW in conjunction with LAW of LAW , point PERSON of the operative provisions of the judgment ) . With regard to that offence , the trial court sentenced him to CARDINAL and a half years’ imprisonment and a fine .

The trial court gave the first applicant a cumulative sentence of CARDINAL years’ imprisonment and the second applicant a cumulative sentence of DATE years’ imprisonment and a fine . The trial court ordered the applicants to compensate the ORG for the damage caused . The first applicant was further ordered to pay compensation to ORG .

On DATE Judge PERSON , in view of the complexity of the case , requested the President of ORG to grant him an extension until DATE for preparation of the written judgment . The request was granted . The judgment was served on the applicants’ counsel on CARDINAL DATE . The operative part of the judgment runs to CARDINAL pages and the reasoning to CARDINAL pages .

The reasoning included a short presentation of evidence by certain witnesses concerning the alleged financing of political parties by the ORG . It stated that the issue “ had not been relevant for the determination of the case ” .

The reasoning further included a passage saying that “ in the court ’s assessment , the ORG trial has not , however , shown the important role played by the [ second applicant ] in the functioning of the ORG ... ” .

Subsequently , Judge PERSON requested that ORG transfer him back to ORG . On DATE the ORG granted that request in connection with “ the termination of the ORG case in the CARDINALth ORG ” .

The Law of DATE on amendments to LAW ( “ the DATE LAW ) , which extended limitation periods , entered into force on DATE ( see paragraphs CARDINAL - CARDINAL below ) .

It appears from the case file that the second applicant moved to GPE on an unspecified date .

The applicants lodged appeals with ORG . They alleged that Judge PERSON had been assigned to their case in breach of NORP CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL of LAW ( “ the ORG ” ) . They argued that since the composition of the trial bench had been unlawful the appellate court should have quashed the lower court ’s judgment in its entirety . They further alleged that Judge PERSON had been involved in the passing of LAW , which amounted to a breach of their right to a fair trial by an impartial tribunal .

The second applicant alleged that Judge PERSON had lacked impartiality , referring to a statement made by him at the opening of the trial and certain passages in the reasoning showing that he had a negative attitude towards him . He also referred to statements made in an interview given by Judge PERSON to the DATE newspaper ORG assuming the defendants’ guilt and showing hostility towards the so - called “ white collars ” , who in his view should have been severely punished .

The applicants also alleged that the trial court had violated the rules of criminal procedure and the rights of the defence in various respects .

In the course of the appellate proceedings , ORG referred a legal question to ORG , seeking an interpretation of the provisions of the ORG concerning the assignment of a trial court judge to a given case and the consequences of an irregularly constituted trial bench for the outcome of appellate proceedings .

The legal question read as follows :

“ Does the expression “ court improperly constituted ” in LAW ( CARDINAL ) of the ORG also concern a situation in which a court that ruled on a case included a judge who had been “ allocated ” to the case by some other entity than the [ one ] authorised to do so by law , i.e. the president of a court ( president of a division ) assigning a judge – LAW in the manner specified in LAW ORG . ”

In a ORG adopted on DATE , ORG replied as follows :

“ The assignment of members of a court in breach of the rules specified in Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG constitutes a relative ground of appeal ( względna przyczyna odwoławcza ) referred to in LAW ORG . ”

In its legal question , ORG noted that , in consequence of a decision adopted by ORG , the president of a division in that court had issued an order assigning Judge PERSON to hear case no . VIII K CARDINAL/CARDINAL pursuant to LAW ORG . The same court also noted that the manner of assigning members of the court in that case had violated the rules specified in LAW ORG since Judge PERSON had not been on the list of judges from which a judge should have been selected , but had been “ transferred ” to DATE in order to hear case no . VIII K CARDINAL .

ORG agreed with ORG that the rules specified in LAW § CARDINAL and CARDINAL § CARDINAL of the ORG had been violated in the case . There had been a breach of LAW ORG , which consisted of a decision not entirely “ independent ” in nature being taken by the president of a division to select Judge PERSON to hear the case , since that decision had been predetermined by an earlier decision of ORG . There had also been a violation of LAW ORG , which consisted of disregarding the list of judges of the division and assigning as a member of the court a judge who had been “ transferred ” from another division for that specific purpose , without indicating other valid reasons , as required by that provision .

ORG then examined whether the above - mentioned breach of the rules specified in GPE CARDINAL § CARDINAL and CARDINAL § CARDINAL could be regarded as the court being “ improperly constituted ” within the meaning of LAW ( CARDINAL ) of the ORG . Pursuant to that provision , a finding that a court had not been properly constituted resulted in the judgment being automatically set aside on appeal . ORG noted that in previous cases the term had been applied in the following situations : where a court had been composed of a smaller or larger number of members than provided for by law ; where lay judges had sat as members of a court instead of professional judges and vice versa ; and where a member of a court had had no authority to examine a case in a given court .

ORG emphasised that a violation of the rules on the assignment of members of a court contained in CARDINAL and CARDINAL of the ORG did not – in itself – result in a situation where a court had examined a case in a composition not provided for by law or where a member of a court had had no authority to decide in a given case . On the other hand , if a decision by a president of a court ( president of a division ) had , in breach of LAW ORG , resulted in a court with a composition unknown in the law for a given category of cases or a person not authorised to examine cases in a given court being selected , such a flaw would have to be regarded as an automatic ground of appeal within the meaning of LAW § CARDINAL ( CARDINAL ) of the ORG . However , in such a situation the procedural flaw would have to consist not only of a violation of LAW ORG , but also a violation of the provisions of the ORG concerning the composition of judicial benches and the competence of judges to examine cases in a given court . In such a situation , a violation of procedural rules would be of a qualified , double nature .

That had not occurred in the case under consideration , in which only ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG had been violated . In ORG assessment , a sole violation of the above - mentioned provisions should be regarded as a relative ground of appeal . Consequently , in order to allow an appeal based on a relative ground , an appellate court had to establish , at least , a hypothetical link between the alleged procedural violation and the content of the judgment within the meaning of Article CARDINAL § CARDINAL of the ORG .

ORG delivered its judgment on DATE .

It quashed the first applicant ’s conviction in respect of the offence of failure to perform her duties and of exceeding her authority ( point LAW of the operative provisions of the trial court ’s judgment ) . The reason given was that the offence had become subject to limitation on DATE , prior to the date of entry into force of LAW .

The Court of Appeal further quashed the second applicant ’s conviction in respect of theft of the ORG ’s property of a considerable value ( point PERSON of the operative provisions of the trial court ’s judgment ) . The principal reason given was the court ’s refusal to apply LAW to the relevant offence imputed to the second applicant . In consequence , the limitation period in respect of that offence had expired on DATE .

ORG accordingly quashed the cumulative sentences imposed on the applicants . It discontinued the part of the proceedings concerning the quashed convictions . ORG also lowered the fines imposed on the applicants .

The remainder of the trial court ’s judgment was upheld , including the first and second applicant ’s convictions for misappropriation of the ORG ’s property of a considerable value ( points III and GPE respectively of the operative part of the trial court ’s judgment ) .

ORG analysed the circumstances surrounding the assignment of Judge PERSON to the case . It found that the decision to assign him had simply been a consequence of ORG decision and not a sovereign act by the President of ORG in the exercise of his powers under LAW ( CARDINAL ) of the ORG . Having regard to the above , ORG found that the statutory rules on the assignment of judges set out in LAW § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL of the ORG had not been respected .

Having regard to ORG Resolution of DATE , ORG considered the effect of the breach of Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL of the ORG on the content of the trial court ’s judgment .

ORG examined the circumstances concerning the enactment of the DATE Amendment extending limitation periods , which was relevant for some of the charges against the applicants .

The bill had been introduced by a group of MPs from the opposition party , PERSON and ORG , on DATE , before the date of delivery of the trial court ’s judgment on DATE . The bill had made direct reference to the ORG pending case .

The intentions of the drafters had been confirmed during debates in ORG of the PERSON ( ORG of ORG ) and at the plenary session of the PERSON . CARDINAL of the supporters of the draft bill had been the member of parliament ( MP ) PERSON , who had also acted as rapporteur in the course of the parliamentary debate on the bill . Judge PERSON had been serving at that time as an advisor to ORG on his recommendation .

ORG observed that a judge could be appointed a member of the Minister of ORG ’s ORG in accordance with the rules and procedures set out in the relevant LAW . However , a judge was prevented from participating in parliamentary work on criminal law codification as an advisor chosen by an MP , parliamentary group or a political party . By doing so , a judge would in fact be acting as a lobbyist disclosing his political preferences . Such conduct was contrary to LAW and the provisions of ORG .

ORG noted that , according to a letter from the Chancellery of the PERSON ( see paragraph CARDINAL below ) , Judge PERSON had not been an advisor to ORG in connection with the work on the bill extending limitation periods . However , the court ’s analysis of some parliamentary records contradicted that assertion . It transpired from TIME of a meeting of ORG on DATE that Judge PERSON had been present during a discussion on the bill . At that meeting PERSON , after the ORG had rejected his amendment to the bill , asked Judge PERSON “ whether in this situation the ORG case would become time - barred ” . ORG also referred to TIME of the plenary session of the PERSON on DATE . At that session PERSON , replying to a question , stated that Judge PERSON had been permanent advisor to ORG and presented verbatim the judge ’s position on an aspect of an amendment to the bill .

ORG , having regard to the parliamentary records , established that Judge PERSON had actively sought to influence the amending legislation to the detriment of the defendants , even though at the same time he had examined their case at trial .

ORG held as follows :

“ In the present case ... on the basis of the circumstances concerning the passing of the DATE Amendment established in the course of the appellate proceedings , ORG reached the conclusion that the regulations contained in the LAW had been adopted by the legislature , in particular , so that they could be applied to the pending proceedings in a specific case indicated in the reasons for the bill , and in addition , the judge hearing the case took part in the process of amending the law as an advisor , thus showing a lack of impartiality . Having regard to the foregoing , the application of LAW to the present case would have patently violated the standards of Articles CARDINAL and CARDINAL § CARDINAL of the LAW and LAW concerning the right to a fair trial before an impartial tribunal and would have had an obvious influence on the pertinent part of the judgment . ”

ORG decided not to apply LAW to that part of the case . It therefore found that the limitation period in respect of the offence of theft of the ORG ’s property of a considerable value imputed to the second applicant had expired on DATE ( point PERSON of the operative provisions of the trial court ’s judgment ) . It held that his conviction in respect of that offence had to be quashed and that the relevant part of the proceedings had to be discontinued .

Having regard to the foregoing , ORG allowed the applicants’ arguments concerning the flaws in the assignment of Judge PERSON to the case and the efforts of the judge to amend the legislation applicable to the case in the course of the trial and at the formal examination stage of the appeal . In the appellate court ’s view , the applicants had rightly pointed out that by accepting the role of advisor to the proponents of the bill amending LAW ( extending limitation periods ) Judge PERSON had shown a lack of impartiality . At the same time , ORG , by failing to respect the rule of law , had encroached upon the competences of the judicial authorities and flouted the guarantees of a fair trial .

The Court of Appeal underlined that the above shortcomings had only affected part of the trial court ’s judgment , namely the offence imputed to the second applicant ( point PERSON of the operative provisions of the trial court ’s judgment ) , for which the limitation period had been set to expire on DATE . Only in that part did there exist a logical and irrefutable causal link between the error in the assignment of Judge PERSON and his subsequent efforts to pass legislation amending the law to the detriment of the defendants in the case examined by him .

As to the remainder of the case , ORG did not establish that the above shortcomings had influenced the content of the trial court ’s judgment . Accordingly , it did not accept the ORG submissions , which were aimed at having the judgment of the trial court quashed in its entirety .

With regard to certain passages in the reasoning showing that Judge PERSON had a negative attitude towards the second applicant , ORG found that many of them had been opinions based on fact and therefore could not be seen as showing a lack of impartiality towards the second applicant . However , the court agreed with the defence that the passage about the important role of the second applicant in the activities of the ORG had not been fact - based and was therefore inappropriate . Nonetheless , the statement was related to hypothetical behaviour of the second applicant which was unrelated to the charges against him and in any event had not influenced the content of the judgment . The second applicant had not substantiated either how the passage related to the financing of political parties by the ORG could show that Judge PERSON had had a negative attitude towards him , when that issue had not been examined by the trial court . With regard to the allegation raised by the second applicant of a lack of impartiality on the part of Judge PERSON in connection with his statement about the CARDINAL victims in the case , ORG found it to be groundless . It considered that the statement had to be seen in the proper context in which it was made , namely the trial court ’s determination to elucidate all the

ORG dismissed the remainder of the applicants’ appeals . It examined various allegations concerning the rights of the defence and the rules of criminal procedure raised by the applicants and rejected them all as unfounded or as having no bearing on the content of the judgment .

The Prosecutor General lodged a cassation appeal against the part of ORG judgment concerning the discontinuation of the proceedings against the second applicant in respect of the charge of theft of the ORG ’s property of a considerable value ( point PERSON of the operative provisions of the trial court ’s judgment ) . ORG argued that ORG had erred in holding that the application of LAW to the offence in question would have breached Articles CARDINAL and CARDINAL § CARDINAL of the LAW and LAW on account of the alleged lack of impartiality of Judge PERSON In his view , the appellate court ’s finding had resulted in the relevant part of the proceedings being unjustifiably discontinued .

The applicants also lodged cassation appeals . They challenged ORG finding that the uncontested breach of the rules concerning the assignment of Judge PERSON to their case could not have influenced the content of the trial court ’s judgment . In their view , the assignment of Judge PERSON in flagrant breach of NORP CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG had resulted in their case not being examined by an impartial judge .

DATE . They further challenged ORG finding that the established lack of impartiality of Judge PERSON resulting from his active involvement in the passing of LAW could only be relevant for some of the offences imputed to them . In their view , his lack of impartiality had affected the whole trial and therefore the trial court ’s judgment should have been quashed in its entirety .

The second applicant also alleged that ORG had not examined his arguments that Judge PERSON should have been removed from the case because of doubts as to his impartiality .

The applicants repeated their allegations concerning various violations of the rights of the defence and the rules of criminal procedure committed by the trial court , which had allegedly not been duly examined by ORG .

On DATE ORG gave judgment . It allowed the cassation appeal of ORG and quashed the part of ORG judgment concerning the discontinuation of the proceedings against the second applicant , remitting that part of the case to it . It dismissed the cassation appeals filed by the applicants .

ORG examined the ORG allegation that the assignment of Judge PERSON in flagrant breach of NORP CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG had resulted in their case not being examined by an impartial judge . It confirmed that Judge PERSON had been assigned to the applicants’ case in breach of the above provisions . However , having regard to its Resolution no . I ORG CARDINAL/CARDINAL of CARDINAL DATE , ORG noted that it was necessary to examine whether the above flaw had influenced the content of the trial court ’s judgment . For that to be the case the judge would have to be interested in the case having a specific outcome by violating the rules of criminal procedure .

In that connection , ORG first noted that behaviour which could raise doubts about the lack of impartiality of a judge hearing a case would have to arise up until delivery of the judgment by the judge in question . Secondly , it noted that the mere determination of the court in striving to conclude the proceedings before the expiry of the limitation period was not indicative of its partiality . The lack of impartiality of a judge had to manifest itself in restrictions on the procedural rights of a party , improper gathering of evidence or the imposition of an unjust sentence . However , the applicants had not provided concrete examples of such shortcomings and had limited themselves to general allegations . They had merely referred to CARDINAL statement made by Judge PERSON about “ the CARDINAL victims ” , the passage in the reasoning of the trial court related to the financing of political parties by the ORG and the antagonism of political parties with which Judge PERSON and the second applicant respectively sympathised .

With regard to the statement about “ the CARDINAL victims ” ORG paid attention to the context in which it had been made – at the first trial hearing on DATE in which Judge PERSON , the president of the bench , had allowed journalists to disseminate images and information about the identities of the defendants ( see paragraph CARDINAL above ) . In ORG view , an analysis of the statement did not permit the conclusion that Judge PERSON had identified himself with the victims in the case under examination by him . The statement had indicated that it was society that was entitled to have images of the defendants . For ORG , the statement was another unnecessarily pompous statement by Judge PERSON which was not in itself proof of his lack of impartiality . It also noted that the defence had not reacted to this statement by requesting that he be removed from the case . Likewise , before the start of the trial the defence had not raised the issue of any of the members of the trial bench possibly having a negative attitude towards the second applicant . With regard to the passage related to the financing of political parties by the ORG , ORG noted that it did not point to a lack of impartiality on the part of Judge PERSON The judge had concluded in the reasoning that that issue had been irrelevant for the determination of the case . Having regard to the foregoing , ORG did not share the applicants’ views about the alleged lack of impartiality of the trial court .

ORG examined the applicants’ arguments related to the alleged lack of impartiality of Judge PERSON , which had allegedly ensued from his involvement in the passage of LAW . In that connection , the court noted that the bill had been introduced on DATE and that only from that moment in time could CARDINAL talk about his alleged involvement in the process . The bill had been introduced after the trial court had finished hearing evidence in the case ( DATE ) and at a time when the trial had entered its final stages , with the closing statements by the parties . The court further noted that the parliamentary debate on the bill had effectively started in DATE , after the trial court had delivered its judgment ( DATE ) . Accordingly , it could not be said that the trial hearing had coincided with the parliamentary debate on the bill .

DATE . Furthermore , LAW had entered into force on DATE and the limitation period with regard to CARDINAL of the offences ( point PERSON of the operative part ) had been set to expire on DATE . Accordingly , the consequences of the expiry of the limitation period and the entry into force of the law extending limitation periods had taken place in the course of the appellate proceedings .

ORG concluded that Judge PERSON ’s involvement in the parliamentary debate on the bill had occurred after the trial had ended and thus could not have had any effect on the content of the judgment . It noted that ORG must have embraced a similar view on that issue since it had not decided to quash the trial court ’s judgment in its entirety .

Having regard to the above conclusion , the court noted that the principal issue before ORG and now before it was the compatibility of the CARDINAL Amendment with the LAW and the LAW , as well as the related problem of how the court should proceed in the event of a finding of incompatibility .

With regard to the constitutionality of LAW , ORG referred to the established case - law of ORG , which provided that limitation periods were not a subjective right ( prawo podmiotowe ) and therefore could be subject to change , including retrospectively . A change to a limitation period did not have a bearing on the criminalisation of a given act or the penalty that could be imposed . Rules on limitation periods did not provide guarantees for a person who committed an offence , but were established for the sake of punishment and were related to the ORG ’s criminal policy ( referring to ORG judgment of CARDINAL DATE , case no . ORG CARDINAL/CARDINAL ) .

With regard to the constitutionality of the DATE Amendment related to the shortcomings of the legislative process , ORG concurred with ORG that the conduct of that process indicated that the impugned legislation had been adopted with a view to influencing the outcome of a particular case . ORG had analysed the issue from the perspective of the “ partiality ” of Judge PERSON , who had been involved in the preparation of the law partly determining the outcome of the case , but for ORG that issue had to been seen in a wider context . In fact , ORG had analysed the issue of the “ partiality of the legislature ” and understood it to mean an encroachment by the legislature on the competences of the judicial authorities by the former ’s involvement in the determination of a specific case by means of enacting legislation .

ORG analysed whether “ the partiality of the legislature ” had occurred in the applicants’ case . It had regard to the reasons for the bill which , although very brief , had contained CARDINAL paragraphs related to the ORG case .

ORG noted that the parliamentary debate on the bill , both in the relevant Committee meetings and at the plenary session of the PERSON clearly indicated the existence of links between the need to enact the impugned legislation and the proceedings in the applicants’ case . A statement made by PERSON during the debate on the bill in the PERSON on DATE was relevant here ( “ Among the CARDINAL of cases [ threatened by the expiry of the limitation period ] there is also this one , which outrages and shocks NORP public opinion the most , which ... became the instigator and final argument for the introduction of this bill , and that is ORG - gate and the real risk of the limitation period expiring in this case ” ) . Similarly , the statement made by PERSON MP in the same debate left no doubt as to the intentions of the proponents of the bill ( “ there is a legal possibility of influencing these proceedings ” ) .

In conclusion , ORG found that the involvement of the legislature , with the support of Judge PERSON , could support the allegation that the object of LAW had been to influence the outcome of the applicants’ specific case . Such a situation in turn raised doubts about its conformity with LAW and CARDINAL of the LAW .

In the applicants’ case , ORG held that LAW was unconstitutional and for that reason , it independently decided not to apply it in the case . However , ORG found that in that respect ORG had exceeded its competences . Instead of refusing to apply the unconstitutional legislation , it had been required to put a legal question to ORG on the constitutionality of LAW . In ORG view , ORG had the exclusive competence to declare legislation unconstitutional .

For that reason , ORG quashed the part of ORG judgment concerning the discontinuation of the proceedings against the second applicant ( point PERSON of the operative provisions of the trial court ’s judgment ) and remitted that part of the case to it .

Following ORG directions , on DATE ORG put a legal question to ORG on the constitutionality of LAW .

ORG submitted that “ FOZZ - gate ” had been mentioned throughout the parliamentary debate on the bill . It referred to the reasons for the bill and the statements made by the MPs , advisors and representatives of ORG in the course of debates of ORG referring to the same case . In view of the above , ORG considered that LAW had not been enacted as a general instrument of criminal policy , but followed from the legislature ’s desire to influence the outcome of a particular case . Such a situation amounted to an encroachment by the legislature on the competences of the judicial authorities . For ORG , there were substantiated doubts about the compatibility of the DATE Amendment with ORG ( rule of law principle ) and CARDINAL ( separation of powers ) of the LAW .

In its decision of CARDINAL DATE ( case no . P CARDINAL/CARDINAL ) , ORG discontinued the proceedings initiated by the legal question of ORG on the grounds of ne bis in idem . It referred to an earlier judgment it had adopted on DATE ( case no . P CARDINAL ) , which was decisive for the case at issue . In that judgment ORG held that LAW was compatible with LAW and LAW ( see paragraphs CARDINAL and CARDINAL - CARDINAL below ) .

ORG noted that ORG had not questioned the very extension of the limitation period or the possibility of applying extended limitation periods to offences committed before the entry into force of the amending legislation which had not become time - barred under the rules formerly applicable . The allegations of ORG had instead concentrated on shortcomings in the legislative process , but without invoking any of the relevant constitutional provisions regulating that process . ORG had focused on the context and the circumstances surrounding the enactment of the impugned legislation by referring to select statements of the persons taking part in the parliamentary debate on the bill and mentioning certain passages from the reasons for the bill . However , that issue had already been addressed in ORG judgment of DATE ( see paragraphs CARDINAL - CARDINAL below ) . In that judgment , it had also underlined that the contested amendment had not influenced the judicial determination of the case .

On DATE the ORG gave judgment .

It upheld the trial court ’s judgment with regard to the second applicant ’s conviction for theft of the ORG ’s property of a considerable value ( point PERSON of the operative provisions of the trial court ’s judgment ) . It only lowered the fine imposed on him in respect of that offence .

Having regard to ORG decision of CARDINAL DATE , ORG ruled that it could not discontinue the criminal proceedings against the second applicant with regard to the abovementioned offence on account of the expiry of the original limitation period as had been decided in its first judgment . It would not be acceptable to refuse to apply a law whose constitutionality had been confirmed by ORG .

With regard to the allegations concerning the improper assignment of Judge PERSON to the case , ORG , following ORG judgment , held that that shortcoming had not affected the content of the trial court ’s judgment . It dismissed further arguments raised by the second applicant in his appeal against the trial court ’s judgment .

The second applicant lodged a cassation appeal against ORG judgment . He alleged , in particular , that ORG had violated the provisions of the substantive criminal law related to his conviction under LAW of the old LAW . On DATE ORG dismissed the second applicant ’s cassation appeal as manifestly ill - founded .

In issue no . CARDINAL of DATE , ORG published an article entitled “ NORP PERSON ” about the ORG trial , including an interview with Judge PERSON The relevant part reads as follows :

“ Journalists divide judges into those who have “ pressure on the small screen ” and those who consistently refuse to comment . Judge PERSON has a reputation as one of the best lawyers in GPE , but also as a “ media stonewaller ” .. In the ORG trial he [ has ] a dual role : as a main judge and as a defender of what remains of the reputation of the administration of justice . The threat of the limitation period hangs over the indictment . ...

“ Journalist : Are you afraid that you will not have enough time to correct the ORG mistakes and sentence [ those who are ] guilty ?

Judge PERSON : I will not comment on the trial . This is not a commission of inquiry .

Q : Perhaps it does not resemble a meeting of a commission [ of inquiry ] , but do n’t you have the impression that you are participating in the theatre of the absurd ? The defendants faint , pretend to be mentally ill ...

A : I have . What ’s even worse [ is that ] I feel too frequently that it is not the defendant in the hands of a court , but me in the hands of the defendant and his counsel . Frequently , a team of people is working on how to use too liberal a law to block the trial . Unfortunately , we have succeeded in creating a belief among criminals that they can go unpunished .

Q : Do you think that opportunity makes a thief ?

A : Not an opportunity , but the lack of an inevitable and adequate punishment . Up until recently a criminal could still laugh in our faces , because even if , by a miracle , he was caught and sentenced , he could use the stolen money with impunity , and even boast about it . ...

Q : They still brag that they transferred money to their wives and that nothing can be done to them .

A : What we know about scandals is not even the tip of the iceberg . We already have [ the ] white - collar mafia . It is time to find efficient methods of detecting crimes and begin applying adequate punishments . ...

Q : Even if we catch criminals more efficiently , where would we lock them up ?

A : We will stop spending money on implementing inefficient programmes , and build more prisons . Thanks to harsh punishments and a ‘ zero tolerance’ [ policy ] even for minor crimes , it was possible to resolve the crisis in GPE . Why should n’t that idea work here ? ”

On DATE PERSON , who had been appointed Minister of Justice in the meantime , gave an interview to a radio station . The transcript of the relevant part reads as follows :

“ Q : Minister , your deputy , Judge [ PERSON ] has been criticised by ORG judges , who found that Judge [ PERSON ] had not been impartial in the case against NORP and [ the first applicant ] .

A : ORG judges were either misled or have been seriously mistaken because they have relied on false information .

Q : Who could have misled them ?

A : Perhaps the defence lawyers , who raised certain arguments , not always properly , but always in the interest of their clients . ... The facts are that , firstly , Judge [ PERSON ] was not an advisor to the PERSON and ORG [ party ] , but an advisor to the PERSON ’s [ ORG ] , as were many other judges , including judges of ORG . No one is alleging that because of that those judges are not impartial , and rightly so . Secondly , Judge [ PERSON ] did not take part in the debate on the provision extending limitation periods . I am the author of this provision , I conceived this provision and presented it to PERSON , and I then consulted CARDINAL law professors , with whom I cooperate , who are also members of [ advisors to ] the PERSON ’s committees , Professors PERSON and PERSON , I think that both of them would confirm this .

Q : But did you rely on Judge [ A.K. ] ’s opinion in this case or not ?

A : I could not have relied on Judge [ A.K. ] ’s opinion in this case , because in this case Judge PERSON did not give an opinion . In this case Judge [ PERSON ] was not at all an initiator of this idea . I was the author .

Q : And you did not speak to him about this issue :

A : No , I did not speak to Judge [ PERSON ] about this issue . In this case , I acted as PERSON , who seeing what was happening in the ORG case , concluded that limitation periods should be extended . And not only in the ORG case , but also in other cases ... ”

An official note dated DATE was submitted to ORG . It reads as follows :

“ Judge PERSON was recommended by the deputy chairman of ORG PERSON MP ( PiS ) to participate as an advisor in the work of the [ Special Committee for Codification Amendments ] .

Because there is no custom in the ORG to appoint a permanent advisor , Judge PERSON was invited to many bills amending the criminal law on the instruction of PERSON PERSON .

It should be underlined that Judge PERSON was not the ORG ’s advisor in the legislative work on the PERSON bill amending LAW [ extending limitation periods ] ( document no . CARDINAL ) at any stage of the work .

Judge PERSON was present at the [ ORG ’s ] meeting on DATE on the point concerning the above - mentioned bill , because he was waiting for the beginning [ of a discussion on ] of the third point for which he had been invited as an advisor ( i.e. on the bill amending LAW and LAW in respect of combating paedophilia ... )

The agenda of that meeting included a discussion on the amendments proposed in the second reading of the PERSON bill :

I. amending LAW ( [ on ] limitation periods – document no . CARDINAL ) ,

II . amending LAW ... ,

III . amending LAW and LAW ( [ on ] combating paedophilia ... ) .

Because the times for discussing particular points [ of the agenda ] were not been specified , Judge PERSON was present from the beginning of the meeting . ”

It appears that Judge PERSON participated as an advisor to ORG on CARDINAL bills amending LAW . CARDINAL of those bills was introduced by the President of GPE in DATE and the other by the then opposition party , PERSON and ORG , in DATE . The PERSON has not concluded the debate on those bills .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 13+11 - Right to an effective remedy (Article 13 - Effective remedy) (Article 11 - Freedom of assembly and association;Article 11-1 - Freedom of peaceful assembly)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in GPE .

At the material time , the applicant was a civil servant in GPE of GPE and a member of the local branch of the LAW trade union , which is affiliated to the KESK ( ORG – ORG ) .

NORP In DATE CARDINAL of the largest trade unions , namely the DİSK ( Devrimci İşçi Sendikaları Konfederasyonu – ORG ) and the KESK ( ORG ) announced that they were planning a large scale demonstration in GPE for DATE and that their members would be gathering to celebrate the Labour Day and to commemorate their friends who had lost their lives during the demonstrations of CARDINAL DATE .

In DATE the applicant was informed that a disciplinary investigation had been initiated against him for being absent without leave on DATE and he was asked to submit his defence submissions . The applicant explained that he had participated in a demonstration organised by his trade union on DATE to celebrate International Labour Day .

Subsequently , the applicant was given a warning as a disciplinary sanction owing to his being absent without leave on DATE pursuant to CARDINAL of LAW ( Law no . CARDINAL ) .

On DATE the applicant objected to the decision and requested its annulment .

On DATE ORG of GPE dismissed the applicant ’s objection , finding that the contested decision was in accordance with the law and that there were no grounds to annul it .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

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

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

NORP The applicant ’s mother owned a QUANTITY house and a plot of land of QUANTITY , which were expropriated in DATE .

Following the enactment of LAW in DATE ( see paragraph CARDINAL below ) , on CARDINAL DATE the applicant and her brother requested compensation for their mother ’s expropriated property . By a decision of DATE the regional governor of GPE dismissed the request insofar as it concerned the expropriated land , because it had already been subject to restitution , and held that in respect of the house , which had been demolished , the applicant and her brother were to receive compensation bonds .

The decision was served on the applicant on DATE .

On DATE the applicant applied for judicial review of the above - mentioned decision .

In a judgment of CARDINAL DATE ORG ( “ the ORG ” ) quashed the regional governor ’s decision in respect of the applicant and found that she was entitled to compensation for the land and house , to be provided both by transferring to her a share of a larger plot totalling QUANTITY , which adjoined the expropriated plot formerly owned by her mother , and by awarding her compensation bonds , the exact value of which would be determined at a later stage ( see paragraph CARDINAL below ) .

A limited liability company , ORG , joined the proceedings before ORG , after it was accepted that the company had locus standi because it owned a share of the plot of land of QUANTITY . CARDINAL party joined the proceedings at this time , despite the plot having several other co - owners .

All parties lodged appeals against ORG judgment , but it was upheld by ORG ( “ the ORG ” ) on DATE .

The case was subsequently sent back to ORG for the second stage of the proceedings , namely the determination of the exact amount of compensation to be awarded . In a judgment of DATE ORG held that the applicant was to receive PERCENT of the ORG - owned share of the larger plot and compensation bonds with a face value of CARDINAL NORP levs ( ORG ) .

On DATE the regional governor appealed to the ORG against the judgment of ORG . However , the proceedings were stayed owing to the submission of several requests to have the first stage of the proceedings reopened ( see below ) .

On DATE the applicant ’s brother lodged an application to set aside ORG judgment of DATE , as upheld by the ORG on DATE , and to have the proceedings reopened . He referred to evidence which he considered to be newly discovered . His application was dismissed on DATE .

On an unspecified date , a Mr ORG also applied to have the first stage of the proceedings reopened , arguing that , as a co - owner of the plot of QUANTITY , he was an interested party and should have been notified of the proceedings and given an opportunity to participate . He explained that he had become aware of the judgments of DATE and DATE in DATE when he had visited the local municipality .

On DATE the ORG dismissed Mr PERSON ’s application .

On DATE PERSON , wife of PERSON , also applied to have the judgment of DATE set aside and the proceedings reopened , arguing that she was also a co - owner of the plot and had been deprived of an opportunity to participate . She stated that she had become aware of the impugned judgment in DATE when she had visited the municipality .

On DATE PERSON , a further co - owner of the plot of land , applied to have the proceedings reopened , putting forward arguments similar to those made by PERSON stated that she had become aware of the impugned judgment in DATE .

On DATE Mr PERSON , PERSON and the company ORG sent a letter to ORG , urging it to propose that the proceedings be reopened , on the ground that some of the co - owners of the plot had not been given an opportunity to participate . The applicant alleged before the ORG that their letter had actually been received by ORG DATE and filed as part of her evidence a copy of the letter bearing the date CARDINAL DATE next to the acknowledgment - of - receipt stamp . ORG , however , submitted a copy of the same letter together with a copy of the relevant entry of the register of documents filed with ORG , which were both dated DATE .

On DATE the Deputy Chief Public Prosecutor introduced a proposal for the judgment of DATE to be set aside and the proceedings to be reopened , noting that PERSON and PERSON had not been notified of the proceedings and given an opportunity to participate . He pointed out that the QUANTITY women had become aware of the impugned judgment in DATE , referring to a letter he had received at his office on DATE .

In a judgment of DATE the ORG allowed the requests , set aside ORG judgment of DATE and reopened the proceedings . It considered that PERSON and PERSON applications had been lodged within the relevant DATE time - limit ( see paragraph CARDINAL below ) , as it had been impossible to establish with certainty the date upon which they had actually become aware of the impugned judgment . The ORG also found that since PERSON and PERSON were both co - owners of the above - mentioned plot of land they had a legitimate interest in the outcome of the contested proceedings , which had directly affected their rights and obligations .

NORP The applicant lodged an appeal against the above - mentioned judgment , which was dismissed as inadmissible on DATE .

Following that , the ORG resumed examination of the regional governor ’s appeal against ORG judgment of DATE ( see paragraphs CARDINAL above ) . On DATE , referring to its decision to reopen the first stage of the proceedings , it quashed the judgment and remitted the case to ORG .

After it started re - examining the case , ORG allowed several individuals and CARDINAL companies to join the proceedings . It gave judgment on DATE . It again quashed the regional governor ’s decision of DATE and held that the applicant was entitled to receive compensation for her mother ’s expropriated property by way of a share of the plot of land measuring QUANTITY in total , as well as through compensation bonds .

CARDINAL of the parties lodged an appeal . On DATE the ORG upheld ORG judgment .

The case was subsequently returned to ORG for the second stage in the proceedings , namely the determination of the amount of compensation to be awarded to the applicant . ORG gave judgment on CARDINAL DATE . In respect of the share of the plot of land measuring QUANTITY , it held that the applicant ’s share could not exceed the ORG - owned share . However , it held that the relevant date on which it was to base its assessment of the ORG - owned share was DATE , because , pursuant to an express provision of LAW ( see paragraph CARDINAL below ) , any transfer of property after that date could not limit the interested parties’ entitlement to compensation . In DATE the ORG - owned share of the plot had amounted to QUANTITY , and in DATE it amounted to QUANTITY , the remainder of the land being the property of the other co - owners . The applicant was entitled to a share measuring QUANTITY , which meant that the shares of the remaining co - owners had to be reduced accordingly . In respect of the compensation bonds to be awarded to the applicant , ORG awarded bonds with a face value of ORG CARDINAL,CARDINAL .

CARDINAL of the parties lodged appeals against the above - mentioned judgment . The ORG held a hearing on DATE , following which the proceedings were stayed .

On DATE PERSON made an application to set aside ORG judgment of CARDINAL DATE , as upheld by the ORG on DATE , and to have the first stage of the proceedings reopened . She referred to newly discovered evidence . On DATE the application was dismissed as time - barred by a CARDINAL - member panel of the ORG . It appears that a subsequent appeal by PERSON to a CARDINAL - member panel of that court was dismissed on an unspecified date .

On an unspecified date the ORG resumed its examination of the CARDINAL appeals against ORG judgment of CARDINAL DATE ( see paragraphs CARDINAL - CARDINAL above ) . On DATE it dismissed them .

After DATE of communism , ORG introduced a series of restitution laws and , in DATE , ORG ( “ LAW ) , which provided , in cases where restitution had been impossible , for compensation to former owners of nationalised property or their heirs , through different means , such as transfer of ORG or municipally - owned shares in properties , or the award of compensation bonds . Requests under LAW were to be addressed to the regional governor or the relevant minister .

Once the regional governor had received such a request , the procedure unfolded in CARDINAL stages . Firstly , the regional governor had to decide whether the interested parties were entitled to compensation . The regional governor then issued a second decision , based on an expert report , determining the amount of compensation to be awarded . The decisions taken at the different stages of the procedure were subject to judicial review .

NORP The regional governor ’s refusal to acknowledge the interested parties’ right to compensation is subject to judicial review in a CARDINAL stage procedure ; the first stage established the right to compensation and the means thereof , and the second determined the amount of compensation to be awarded .

Until DATE the rules concerning judicial review of administrative measures were contained in DATE LAW , which obliged the domestic court examining an appeal against an administrative measure to notify all interested parties of the appeal ( section CARDINAL ) ) ; those parties could then join the proceedings and defend their rights . Similar provisions were contained in section ORG ) of the DATE Supreme Administrative Court Act , in force until DATE . Since DATE , such matters have been regulated by LAW , which contains similar requirements .

Before DATE the conditions and procedure for judicial review proceedings were set out in LAW ( Article CARDINAL et seq . ) A third party could apply to have such proceedings reopened in cases where they had been adversely affected by a final judgment and unduly deprived of the opportunity to participate in the proceedings . The requisite time - limit for parties to make applications for the reopening of proceedings was DATE from the date upon which the third party became aware of the judgment at issue . According to the ORG ’s settled practice , compliance with the DATE time - limit did not depend on the time which had passed since the judgment ’s entry into force , because the third parties’ rights would otherwise be seriously undermined .

The relevant provisions of domestic law have been summarised in the ORG ’s decisions in the cases of GPE and Others v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , § § DATE , DATE ) and ORG and GPE v. GPE ( ( dec . ) , nos . CARDINAL and GPE , § § DATE , DATE ) .


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 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and is currently serving a sentence of imprisonment in FAC no . DATE .

At the time of the events the applicant had CARDINAL criminal convictions for theft , in particular . He had been released from prison in DATE .

From DATE , a number of armed robberies and thefts were committed in the GPE and GPE regions .

On DATE ORG , having received some preliminary reports concerning the possible involvement of the applicant in the aforementioned crimes , arrested him together with his brother and an acquaintance . The police approached them when they were in a car at a fuel station . They attempted to flee , but without success . The police broke the side window and , having overcome the resistance of those inside , took them out by force and handcuffed them . CARDINAL passers - by witnessed this and gave written explanations to that effect to the police , in which they confirmed the above .

Several guns , gas sprays , some jewellery and several pairs of gloves were found in the car .

The officers wrote a report stating that the detainees had demonstrated manifest disobedience to their orders and had attempted to escape , in response to which martial arts techniques had been practised and handcuffs had been applied to them . The report noted that no firearms had been used .

On DATE , DATE , the applicant confessed to several counts of theft and robbery . He also wrote a note stating that he had no complaints against the police and that no physical or psychological coercion had been applied to him .

On DATE the police drew a report on an administrative offence ( a minor offence under NORP legislation ) committed by the applicant . It stated that during his arrest he had manifested malicious disobedience to a lawful order given by police officers in breach of LAW of LAW ( see paragraph CARDINAL below ) .

On DATE the applicant wrote a statement to the effect that during his arrest he had resisted the police and had tried to escape and that he regretted his behaviour .

Still on DATE the ORG of Vinnytsia ( “ the ORG ” ) found the applicant guilty under LAW and sentenced him to CARDINAL days’ administrative detention commencing at TIME on DATE .

It appears from the material in the case file ( see paragraph CARDINAL below ) that on DATE the applicant was examined by doctors after his admission to ORG ( ORG ) . The examination revealed scratches and bruises on his right shoulder . No complaints or requests for medical assistance from the applicant were recorded .

On DATE , DATE , DATE , DATE and DATE the applicant confessed to numerous counts of theft and robbery committed in the GPE and GPE regions . All his confessions were accompanied by written statements by the investigator co - signed by the applicant to the effect that the latter had had his rights explained to him . Furthermore , each confession was accompanied by a written waiver by the applicant of his right to legal assistance .

On DATE the investigator detained the applicant on suspicion of banditry , numerous counts of theft and armed robbery , money laundering , hooliganism , and illegal arms possession and handling . The applicant signed the report and stated that he agreed with his detention .

On DATE and DATE the applicant confessed to some other episodes of theft and robbery .

On DATE he was examined by a general practitioner on duty in ORG no . CARDINAL . The applicant did not raise any complaints and the examination did not reveal any injuries or pathologies .

On DATE the applicant was transferred to ORG the GPE region , where he was detained till DATE in the local temporary detention centre ( the “ ORG ” ) described by him as a metal cage in the police station .

On DATE ORG remanded the applicant in custody as a preventive measure pending trial .

On DATE the applicant had his chest X - rayed in a tuberculosis dispensary , with no anomalies having been revealed .

On CARDINAL , CARDINAL , DATE , and CARDINAL DATE he reiterated his earlier confessions and confessed to yet more crimes . Like before , all those confessions were accompanied by written confirmation of the explanation to the applicant of his rights and by the applicant ’s waiver of his right to a lawyer .

On DATE the applicant was taken to the ORG in the GPE region . He underwent a standard initial medical examination there . As noted in the respective journal , he raised no complaints and the examination revealed no bruises , lice or scabies .

On DATE and on DATE the applicant again reiterated his confessions and waived his right to legal representation .

On DATE an ambulance was called for him . This was recorded as entry no . CARDINAL in the medical assistance journal . The copy of the journal provided to ORG ends at entry no . CARDINAL . No further information is available concerning the applicant ’s condition on DATE ( see also paragraph CARDINAL below ) .

On DATE an ambulance was again called for the applicant . According to a memo issued by the governor of the Brovary ITT on DATE , this was done in response to the applicant ’s complaining of headache .

According to the applicant , on DATE he complained to ORG about his ill - treatment , but his complaint remained without response .

On DATE the applicant was transferred from ORG to ORG . It appears from the material in the case file ( see paragraph MONEY below ) that he was examined by a doctor at his arrival in ORG . Some bruises on his shoulders , an abrasion on his right temple and an abrasion on his right elbow were documented . According to the examination report , the applicant raised no complaints and did not seek medical assistance .

On DATE , DATE and DATE the applicant reiterated his earlier confessions and confessed to yet more crimes . He also signed reports confirming that his rights had been explained to him and waived his right to a lawyer .

On DATE the applicant refused to accept a food parcel from his parents handed to him by the ORG administration . As confirmed by notes written by the applicant ’s cell mates , he did so because the cigarettes and the food had been cut into small pieces . The applicant refused to sign any report or write any explanation .

On DATE the pre - trial investigation was declared complete and the case was referred to court for trial .

On DATE the applicant complained to ORG that from DATE he had been ill - treated by the police in FAC . The alleged ill - treatment included being beaten , strangled with a plastic bag and suspended from an iron bar . The applicant also submitted that he had received the threat that , if he did not confess , his brother would be imprisoned for life on a false charge of murder . Accordingly , the applicant contended that he had been coerced into signing numerous confessions and waivers of legal assistance . He further complained that from DATE to CARDINAL DATE his ill - treatment had continued in ORG . He noted that , although his parents had hired a lawyer for him , he had continuously been forced to waive his right to legal assistance . Lastly , the applicant complained about having suffered psychological pressure and humiliations from the Brovary ITT personnel from DATE . He noted that his complaint to ORG had been without reply .

On DATE the applicant complained to ORG about the attitude of the ORG personnel towards him , which he considered humiliating . He referred , in particular , to the incident with the food parcel of DATE .

On an unspecified later date the chief of the aforementioned police department issued an internal inquiry report stating that no food parcels for the applicant had been received during the period of his detention in the ORG from DATE and that the applicant had been arrogant and rude to the administration .

On DATE the investigator of the GPE police department dealing with the applicant ’s case gave written explanations to the regional prosecution in respect of the applicant ’s allegations of ill - treatment . He submitted that the applicant and those detained as his accomplices had given their confessions and waived their right to a lawyer in a voluntary manner . Since legal representation was not mandatory in the circumstances , those waivers had been accepted . The other police officers concerned gave similar explanations .

On DATE the applicant complained to the Minister of the Interior that he had been subjected to various kinds of ill - treatment and humiliation in all the detention facilities . He alleged , in particular , that on DATE he had been ill - treated by the GPE police officers for TIME and that his ill - treatment had included beatings , strangling with a plastic bag , hanging from an iron bar and the insertion of a baseball bat into his anus . The applicant also submitted that the GPE police had failed to deliver a food parcel to him , had extorted a bribe from him and had not allowed him to see the lawyer contracted by his parents .

On DATE ‒ in response to the applicant ’s complaint of ill - treatment ‒ ORG issued a ruling announcing its refusal to institute criminal proceedings against the police officers of the local police department . The officers concerned had been questioned and had contested the applicant ’s allegations as untruthful . As noted in the ruling , there was no indication that the applicant had sustained any injuries or that he had complained previously . It was therefore considered clear that he had given his confessions voluntarily .

On DATE the governor of ORG issued a memo , apparently at the prosecutor ’s request , about the applicant ’s detention in that facility . It stated that no physical force had been used against the applicant . The memo noted the fact that an ambulance had been called for the applicant following his complaints of headaches on DATE , but with no further details .

NORP On DATE PERSON , the lawyer contracted by the applicant ’s parents on an unspecified earlier date , asked ORG for a meeting with the applicant . On DATE that request was allowed .

On DATE the applicant was examined by doctors in the Vinnytsia SIZO . They found him in good health . The examination report noted that the applicant did not raise any complaints and that there were no injuries on him . It should be noted that the copy of the aforementioned report in the case file before the ORG , as it stood prior to the communication of the application to the ORG , was of very poor quality . Moreover , the report was written in barely legible handwriting . According to the summary of the facts prepared by the ORG at that stage , the report in question had referred to several bruises on the applicant . However , as it has since emerged , there were CARDINAL reports copied on the same page : CARDINAL of DATE and CARDINAL of CARDINAL DATE , and it was the latter report which had noted the applicant ’s injuries ( see paragraph CARDINAL below ) .

On DATE a senior official of ORG delivered a report on the internal investigation into the applicant ’s complaints of ill - treatment ( as summarised in paragraph CARDINAL above ) . The investigation had consisted mainly of questioning of the police officers involved , who had denied any ill - treatment of the applicant . The report noted that the medical examinations of the applicant of DATE and DATE had revealed some injuries which had been inflicted in unestablished circumstances ( for more details see paragraphs CARDINAL and CARDINAL above ) . It was decided that the internal investigation be considered complete , the conclusion being that it had not established any evidence to support the applicant ’s complaints .

On DATE ORG refused to institute criminal proceedings against the officials of ORG in respect of the allegedly inadequate conditions of the applicant ’s detention and his ill - treatment there . It was noted in the ruling that the ORG officials had been questioned and had denied any ill - treatment of the applicant . They had also submitted that he had been detained in adequate conditions .

On DATE ORG issued another ruling refusing the institution of criminal proceedings ‒ this time against the police officers of ORG , who had been involved in the applicant ’s apprehension and the subsequent investigative measures ‒ for the lack of corpus delicti in their actions . The officers submitted that the applicant and his accomplices had manifested malicious disobedience to the orders of the police on DATE . As a result , “ measures of physical intervention and ... handcuffing ” had been applied to them . Furthermore , according to the police ORG statements , the detainees had made their confessions voluntarily . Lastly , the prosecutor noted that the applicant had been examined by doctors on CARDINAL and DATE , when no injuries were documented or complaints raised ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG refused to institute criminal proceedings against the NORP police officers , for the lack of corpus delicti in their actions . The prosecutor noted that the officers in question had denied the veracity of the applicant ’s allegations of ill - treatment . Furthermore , it appeared that the applicant himself had eventually retracted his complaints .

On DATE the ORG also refused to institute criminal proceedings against the Brovary police as regards the conditions of the applicant ’s detention in the local ORG . The decision was based on the explanations of the respective police officers .

On DATE the applicant refused the services of the lawyer retained by his parents and asked ORG to allow his parents time to find a new lawyer for him .

On DATE he repeated the above refusal and asked the court to conduct its hearing with the participation of his sister , who had earlier been admitted in the proceedings as his “ civil defender ” .

DATE . On DATE the applicant complained to ORG that he had been subjected to ill - treatment by the police on DATE and thereafter . He submitted that all his confessions and waivers of legal assistance had been given under duress .

On DATE the applicant also complained of his ill - treatment in police custody to ORG .

On DATE the ORG appointed a free lawyer for the applicant , since his parents had not retained a new lawyer for him .

On DATE ORG instructed the GPE and ORG to investigate the applicant ’s complaints of ill - treatment .

On DATE the applicant was examined by a doctor , who recorded the absence of any injuries , apart from some old scars on both forearms . No further details concerning this examination are available .

On DATE the applicant underwent another medical examination which revealed bruises on his buttocks measuring QUANTITY and QUANTITY respectively , as well as abrasions on his wrists caused by handcuffs . Another bruise measuring QUANTITY was recorded ( the copy of the report in the case file is illegible in this respect ; nor is it possible to read where that bruise was located ) . It is not clear in what circumstances and where that examination was carried out . It has not been commented on by any of the parties .

On DATE the ORG refused to institute criminal proceedings against the police officers in the light of their statements denying the veracity of the applicant ’s complaints .

On DATE ORG Office quashed the aforementioned ruling as premature and superficial . It criticised the prosecutor ’s failure to clarify when and on what grounds the applicant had been taken to ORG before his further transfer to ORG , when he had been detained in the Brovary ITT , which of the police officers had been assigned to him and when . Furthermore , it observed that it was essential to question all the doctors who had examined the applicant and had provided him with medical assistance . According to the applicant , it was after his detention in ORG that he had requested medical assistance . It was also necessary to analyse all the records pertaining to the ambulance calls made for the applicant , as well as the report on his initial medical examination in the Brovary ITT . Lastly , the applicant ’s complaints concerning the refusal to allow a lawyer to see him warranted investigation .

On DATE a senior officer in the NORP police department issued a memo noting that he had visited the Brovary ITT , where he had consulted the medical examination and assistance journal . CARDINAL records , those of DATE and DATE , concerned the applicant . The ambulance doctor had been questioned . She had recognised her signature next to the record of DATE and had verbally explained that she had provided the applicant with the assistance documented in the record . However , she had refused to make any written statements . The memo in question did not contain any further details as to the applicant ’s condition on DATE or what medical assistance had been provided to him ( see also paragraph CARDINAL above ) .

On DATE the ORG found the applicant guilty on CARDINAL counts of aggravated theft and robbery and sentenced him to CARDINAL half GPE imprisonment , as well as confiscation of all his personal property . The confiscated property included a house and a car which had been purchased by the applicant ’s parents , but which the court considered to have been bought using the revenue from his criminal activities . The applicant was acquitted of the charges of banditry , money laundering , hooliganism and illegal arms handling . The court noted that the applicant had cooperated with the investigation . At the court hearing , the applicant commented on CARDINAL of the charges against him : he denied his participation in CARDINAL episode of theft and CARDINAL episode of robbery and submitted that he had earlier confessed to those CARDINAL episodes under duress . The court dismissed that allegation as unsubstantiated .

The applicant appealed , submitting that he had voluntarily confessed to the criminal offences in question and had shown remorse . Referring to his cooperation with the investigation , as well as the fact that he had a child who was a minor , the applicant sought mitigation of his sentence . He also contested the confiscation - related part of the verdict .

On DATE ORG rejected his appeal .

On DATE the applicant lodged an appeal on points of law . He submitted that the lower courts’ decisions should be quashed as being contrary to LAW ( right to legal assistance – see paragraph CARDINAL below ) and LAW ( listing grounds for the annulment of a judgment – see paragraph CARDINAL below ) . The applicant contended that he had not committed the crimes of which he had been found guilty and that he had incriminated himself after succumbing to “ psycho - physical influence and deception by the police ” .

On DATE ORG rejected the applicant ’s request for leave to appeal on points of law . As to his submission on the ostensibly involuntary nature of his confessions , ORG noted that the first - instance court had not established any facts showing any coercion of the applicant and he had not disputed that in his appeal . ORG furthermore observed that the applicant ’s allegation of breach of the criminal procedural legislation were too vague .

On DATE ORG wrote to the applicant stating that it had instructed ORG to investigate his complaints of ill - treatment .

On DATE ORG also wrote to the applicant stating that it had already dismissed his complaints , namely on DATE ( see paragraph CARDINAL above ) . The prosecutor also referred to a similar ruling by ORG of DATE ( the case file before the ORG does not contain a copy of the quoted ruling and there is no information about its contents ) .


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

András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

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

On DATE he started to serve a prison sentence at FAC , where he remained until DATE . According to the applicant , he spent DATE with CARDINAL other inmates in CARDINAL different cells ( nos . CARDINAL , CARDINAL and CARDINAL ) measuring QUANTITY each , including sanitary facilities . The cells were equipped only with CARDINAL tap and a toilet , separated from the living area only by a curtain . The dining table was fixed to the floor just a metre away from the toilet . The applicant had a DATE onehourlong outdoor activity . The yards were closed LOC measuring QUANTITY , CARDINAL persons being taken to the yard at a time .

The applicant was also entitled to QUANTITY exercise in the gym CARDINAL times a week . He attended secondary school classes CARDINAL times a week , TIME on each occasion .

On DATE the applicant was transferred to ORG “ B ” , where his cells ( nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , and CARDINAL ) measured QUANTITY and were occupied by him and CARDINAL other men ( that is , QUANTITY gross living space per inmate ) . The cells had no ventilation system and were infested with parasites . Detainees were permitted to take a shower once a week , according to the applicant , in unhygienic conditions and for no longer than CARDINAL - CARDINAL minutes .

The applicant was entitled to a DATE walk of TIME in the prison yard measuring CARDINAL by QUANTITY . He indicated , however , that he was not able to go outdoors during the period between DATE and CARDINAL DATE on DATE when he was employed as a librarian .

DATE and CARDINAL DATE the applicant continued to serve his sentence in ORG “ A ” of FAC . He was kept in CARDINAL cells described as follows : cell CARDINAL . CARDINAL , CARDINAL and CARDINAL ( QUANTITY , CARDINAL inmates ) , and cell nos . CARDINAL and CARDINAL ( QUANTITY , CARDINAL inmates ) . Only a curtain was used as a partition between the toilet and the living area .

Throughout his detention the applicant had no out - of - cell activities other than a DATE TIME walk in the yard of the prison facility , gym exercise twice a DATE for TIME each time and a DATE visit to the library for TIME .

The inmates were allowed CARDINAL shower per week . The shower room was equipped with CARDINAL shower heads . There were CARDINAL inmates taken to have a shower at the same time , making it impossible to move around because of the sheer number of prisoners .

On DATE the applicant was transferred back to Unit “ B ” of ORG , where he spent DATE in CARDINAL different cells .

The size of those cells was QUANTITY . The occupancy rate varied between CARDINAL persons ( that is , QUANTITY gross living space per inmate ) and QUANTITY ( that is QUANTITY gross living space per inmate ) .

Since DATE the applicant has been detained at FAC with CARDINAL other inmates in a cell measuring QUANTITY .


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

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 conviction for drug dealing .

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


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

Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

DATE and DATE the applicant was held in remand prison GPE in GPE . The prison was overcrowded . Thus , the applicant ’s cell measuring QUANTITY was equipped with CARDINAL sleeping places and accommodated CARDINAL inmates ; cell CARDINAL measuring QUANTITY m was designed for CARDINAL individuals and housed up to QUANTITY prisoners .

On DATE the Korenovskiy District Court of the FAC region convicted the applicant of embezzlement and sentenced him to DATE and CARDINAL months’ imprisonment . On DATE ORG upheld the judgment on appeal .

DATE and DATE the applicant served his sentence in the IK-CARDINAL facility , a correctional colony located in GPE . The dormitory in which the applicant slept measured CARDINAL sq . m , it offered QUANTITY sleeping places but actually accommodated up to QUANTITY inmates .