Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in PERSON .

On DATE , TIME , CARDINAL officers of ORG , GPE and GPE , received an alert that there had been a break - in and robbery in a jewellery store . They called a dog handler , GPE , from ORG who , with the help of a police dog , followed traces from the store to a garage complex on a nearby street and informed GPE and GPE , who then went to the garage complex .

The applicant worked as a guard in that garage complex and on TIME DATE he was on duty . It appears that no other employees were present in the garage complex at that time .

NORP The officers GPE and PERSON arrested the applicant and took him to NORP police station . According to the official police record , the applicant was placed in detention at TIME on DATE and released at CARDINAL a.m. DATE .

Subsequently the applicant and the police officers presented different accounts of the circumstances surrounding the applicant ’s arrest .

On DATE the officer PERSON submitted the following report to his superior :

“ On DATE I was on duty in PERSON together with officer PERSON At TIME we arrived at the entrance to the garage complex ... where an officer of ORG , GPE , was waiting for us . He said that a police dog had followed traces to [ a car ] ... the car was identified as belonging to [ the applicant ] . We called the guard of the garage and asked him whose car it was , and he said that the car was his . When he was asked to state his name , surname and place of residence , the guard refused and began shouting and jostling ( pradėjo rėkti ir stumdytis ) . He said that he did not have to tell us anything about himself . We explained that a crime had been committed and that he was under an obligation to comply with our lawful orders . The guard refused to comply and kept shouting and jostling . A restrictive measure handcuffs – was used against him . After the man was taken to the LOC police station , it was identified that he was [ the applicant ] . ”

The officer PERSON submitted an identically worded report DATE .

That DATE the applicant submitted the following statement to ORG ( hereinafter “ the prosecutor ” ) :

“ On TIME DATE I was on duty at the garage complex ... Around TIME QUANTITY police officers came onto the LOC . CARDINAL of them asked me why I had driven drunk and fled . I explained that I was at my workplace , that I had not been drinking and had not gone anywhere ( I had arrived at work at TIME ) . They checked the car and again began accusing me of being drunk and driving drunk . I told them that I was not drunk and that I had a medium - level disability ( antros grupės neįgalumas ) . Then they dragged me into the administrative area , handcuffed me , pushed me to the floor and held me down , and twisted my arms behind my back ( laužė rankas ) , it hurt a lot ( my hands were handcuffed behind my back ) ; CARDINAL of them kicked me in the stomach CARDINAL times , and they kept telling me to confess . Since I kept denying it , they took me to the police station and gave me an alcohol test , which gave a reading of CARDINAL ... ”

NORP That same day the applicant was examined by a doctor at a local hospital . The doctor found that the applicant ’s entire abdominal area was sensitive when touched , although there were no external signs of contusion , and that there was limited and painful movement in the applicant ’s shoulder joints . The final diagnosis read : “ a contusion of the abdomen and a sprain of the shoulder joints ” ( pilvo sumušimas , pečių sąnarių raiščių patempimas ) .

On DATE the prosecutor opened a pre - trial investigation concerning the applicant ’s allegations of ill - treatment by the police officers . The prosecutor requested an additional medical examination of the applicant in order to determine whether there were any injuries on his body , and if so their nature , gravity and possible causes .

On DATE the applicant was examined by a court medical expert . The report on the results of that examination , issued in DATE , found a contusion on the applicant ’s abdomen and indicated that it could have been caused by CARDINAL blow from a hard blunt object ( vienu trauminiu poveikiu ) . It also detected bruised skin on the applicant ’s left wrist and a sprain of his shoulder joints , noting that they could have resulted from the circumstances described by the applicant , namely from being handcuffed and having his arms twisted behind his back , thus CARDINAL separate traumas ( dviem trauminiais poveikiais ) . The report concluded that the applicant ’s injuries constituted negligible health impairment ( nežymus sveikatos sutrikdymas ) . It also indicated that the applicant ’s injuries were unlikely to have been caused by deliberate self - harming actions ( nebūdingi tyčiniam savęs žalojimui ) and that they could have resulted from fighting or selfdefence .

On DATE police officer PERSON was questioned as a witness in the investigation . The written record of his interview was almost identical to his initial report ( see paragraph CARDINAL above ) , and added :

“ [ The applicant ] approached us and said that the car was his . After we asked him to state his name , surname and place of residence , he refused and began shouting and jostling ... After a while [ the applicant ] said that his documents were in the car and he went to the guard booth to get the car keys . After taking the keys , he turned to me and tried to punch me in the face . At that moment I was standing near the door . The punch missed because I managed to step back . Since he was resisting , I took him by CARDINAL arm , the officer PERSON took him by the other , and we both handcuffed him . Physical force was used only when putting the handcuffs on him , other forcible actions were not used against him . We called the senior investigating officer PERSON to the scene of the event . He examined [ the applicant ’s car ] and did not find any suspicious objects ... ”

On DATE police officer PERSON was questioned as a witness in the investigation ; the written record of his interview was almost identical to that of GPE ( see paragraph CARDINAL above ) .

On DATE the police dog handler GPE was questioned as a witness . He stated :

“ On TIME ... I went to the jewellery shop in GPE ... A police dog followed traces to [ the garage complex ] and lost them by the car ... The car was examined by officers of ORG . It was identified as belonging to [ the applicant ] who , it emerged later , was a security guard at the garage complex ... He refused to give any statements and refused to go to the police station , so the officers asked him to identify himself , which he also refused to do , and therefore the officers tried to take him into custody and put him into the police car ... [ The applicant ] resisted the officers , punched CARDINAL of them in the face , pushed and jostled them to try to avoid being apprehended , used various NORP swear words ... and threatened the officers ... He mentioned that he had friends in high - level positions . The police officers used combat wrestling methods ( kovinių imtynių veiksmus ) and [ the applicant ] was apprehended , handcuffed and taken to the LOC police station to clarify the circumstances of the incident . ”

On DATE the applicant was granted victim status in the investigation and questioned . He stated :

“ On TIME DATE ... [ soon after TIME ] QUANTITY police officers entered the LOC ; they were wearing uniforms ; CARDINAL of them was taller than the other . They asked me if I was the guard . I told them I was . Then they told me to go outside ... The officers pointed to my car and asked me whose it was . I told them it was mine . Then both the officers came closer to me , CARDINAL from the right and the other from the left , and without saying anything they twisted my arms behind my back ( užlaužė rankas ) ... Then they asked me why I had tried to escape from them and had not obeyed their order to stop . I told them that I had been at my workplace , that I had not gone anywhere and had not tried to escape from anyone . Then the officers started pulling my twisted arms upwards ( užlaužtas rankas kėlė į viršų ) and telling me to confess that I had fled . My arms were hurting ... I told the officers that I could go to the administrative area and get my car keys , so that they could check if my car ’s engine was hot . The officers stopped twisting my arms , but did not release them and led me inside the LOC . The car keys were on the table and the officers picked them up , I told them that my documents were in the car and they could check them ... When we were leaving the LOC , I felt the officers handcuff me behind my back . Once I was handcuffed , the shorter officer walked in front of me and the taller officer behind me ; and he was pulling up my handcuffed arms . I crouched down because of that and the shorter officer kneed me in the stomach CARDINAL times . I started feeling weak and dizzy . I kept asking the officers to release me and to stop torturing me . Then the shorter officer said that they would take me to the police station ... I told them that my documents were in the car , that my identity was known to them , and that I could not leave my workplace . Then the taller officer , who was behind me , took me outside while repeatedly twisting and pulling up my arms ... In TIME another officer in a uniform arrived , took my car keys , and tried to open the boot of my car ... The officers examined my car ... Then the shorter and the taller officers put me into their car , still twisting my arms . At the police station I was searched and given an alcohol test ...

[ W]hen the officers arrived at my workplace they did not identify themselves ; I knew they were police officers only from their uniforms . They did not tell me why they were there , and did not ask me to identify myself ; they only asked me if I worked there and if I was the guard . Before being handcuffed I did not jostle . I did not intend to punch the officers ... ”

On DATE the prosecutor arranged a confrontation between the applicant and police officer GPE They both essentially reiterated their previous statements ( see paragraphs CARDINAL , DATE , DATE and DATE above ) . In addition , PERSON stated that the applicant had sworn at the officers when he had been asked to identify himself . PERSON also stated that after the applicant had gone to the guard booth to get his car keys he had attempted to lock himself inside the booth , but the officers had prevented the door from closing and had entered the booth as well . In the booth PERSON had been standing on the applicant ’s right side and PERSON on his left . The door was on PERSON ’s other side . After taking the car keys , the applicant had attempted to punch V.B. After that PERSON had taken the applicant by CARDINAL arm and GPE by the other , and they had cuffed his hands behind his back .

The applicant disagreed with PERSON ’s statements . He insisted that the officers had not asked him to identify himself , and that he had answered all their questions . The applicant also stated that PERSON and PERSON had been the only officers present at the scene and that there had not been a third officer with a dog . He denied swearing at the officers . PERSON replied that the dog handler , whose name he did not know , had been present during the entire incident , that he had also asked the applicant some questions , and that it was impossible for the applicant not to have noticed him .

On DATE senior investigating officer PERSON was questioned as a witness . He stated :

“ I do n’t remember the exact date but it could have been DATE ... I was called to the garage complex ... When I arrived , there were QUANTITY police officers , a dog handler with a dog , and another man – as I later found out , it was [ the applicant ] . The officers told me that the dog had followed traces to CARDINAL of the cars , so I examined that car . I do n’t remember if [ the applicant ] was handcuffed at the time when I examined the car , I was n’t paying attention . I do n’t remember if [ the applicant ] was swearing at or insulting the police officers , I did n’t notice whether he was actively resisting . After examining the car I did n’t find anything suspicious . Then I immediately left , whereas the officers , the dog handler and [ the applicant ] stayed there ... I can confirm that the handler with the dog was present when I arrived , it was impossible for [ the applicant ] not to have seen him . When I was examining the car , [ the applicant ] was nearby , I do n’t remember if he was saying or doing anything . The officers were also standing nearby , I do n’t remember what exactly they were doing . ”

On DATE the prosecutor arranged a confrontation between the applicant and the dog handler GPE The applicant stated that he had never seen GPE before and that neither GPE nor any dog had been present at the time of his arrest . Meanwhile GPE insisted that he had been present :

“ I was at the scene of the incident , I was with a dog , I saw [ the applicant ’s ] arrest and I helped CARDINAL police officers to twist [ the applicant ’s ] arms ( padėjau užlaužti rankas ) ...

I went to the guard booth with the officers . The applicant opened the door of the booth and stepped outside . We explained to him why we were there – that a crime had been committed and that the dog had led us to the cars which were parked nearby . We asked the applicant to identify himself and to tell us whose cars were parked there . The applicant refused , began swearing and insulting us , and said that it was none of our business . Then we explained to him that if he did n’t identify himself he would be forcibly taken to the police station . At some point the applicant raised his hand against one of the officers , I do n’t remember which one , and I did n’t see if he hit him or not . Then the officers and I took him by the arms ; I do n’t remember if we twisted them ( suėmėme jam už rankų , ar užlaužėm , neatsimenu ) . Then my dog ran towards us ; it had been QUANTITY away by the fence or the wall of the garage , I do n’t remember exactly . I caught the dog and tied it up , possibly to the fence , and then I returned to the officers and the applicant . I helped the officers to hold the applicant ’s hands and CARDINAL of them put on handcuffs . I do n’t remember what time we went to the guard booth . Nothing happened inside the booth . ”

N.B. further specified that “ probably not more than a minute ” had passed from the moment the applicant was handcuffed until the moment he was put into the police car . He also stated that he had not seen whether the applicant had been beaten or kicked by the officers . He stated that although the incident had happened during TIME , everything was clearly visible .

On DATE the prosecutor arranged a confrontation between the applicant and police officer GPE The applicant stated that GPE and PERSON had twisted his arms outside , next to the guard booth , that they had handcuffed him inside the booth , and that PERSON had then forcibly pulled up his arms , while PERSON had kneed him in the stomach CARDINAL or CARDINAL times .

PERSON disagreed with the applicant ’s statements and denied kneeing him . He stated :

“ When we arrived at the garage complex , the dog handler told us that the dog had followed the traces of the possible criminal to the car . Then I identified whose car it was . Afterwards the applicant came towards me : I did n’t see how he got there because at that time I was talking on the portable radio ... After being told that a crime had been committed , the applicant said that he “ did n’t give a damn ” and that he “ did n’t have to explain anything ” . When we told the applicant that if he refused to identify himself he would be taken to the police station , he started jostling me and PERSON Then I grabbed him by the wrist and bent it back , and once again told him to identify himself . When a wrist is bent , it does n’t hurt if the person himself does n’t move . Besides , before grabbing the applicant I warned him that if he kept jostling us physical force would be used against him . Then the applicant identified himself to us . Then he said that he would go to the guard booth to get the car keys and documents . He walked to the booth and I , PERSON and the dog handler followed , I do n’t remember in which order . In the booth the applicant went to the table and I stood by the door . He picked up the documents and then turned round and punched me in the face . His fist barely touched my mouth but did n’t cut it ( jo kumštis vos palietė mano lūpą , jos neprakirto ) because I managed to step back . Then I grabbed his arm and twisted it behind his back . PERSON twisted the other arm and the dog handler also helped . Then either I or PERSON handcuffed the applicant . Then I led him outside the booth ... During the arrest the applicant was swearing ; he did not insult me personally and I did not pay attention to the swear words he used . ”

V.B. further specified that when they went into the guard booth , he was standing closest to the applicant inside the booth , near the door , while PERSON and GPE were standing behind PERSON ’s back .

On DATE the prosecutor discontinued the pre - trial investigation . The prosecutor held that the applicant had obstructed the police officers in the performance of their duties , had refused to comply with their lawful orders , had jostled and used swear words , had actively resisted the officers , and had attempted to punch LANGUAGE The prosecutor found no grounds to doubt the statements of the officers GPE , GPE and GPE , because those statements had been “ consistent and logical ” ; the applicant ’s statements could not however be considered reliable , because he had claimed that he had not seen the dog handler GPE at the scene of the incident , although it had been established that GPE was there . The prosecutor further held that the injury to the applicant ’s abdomen was not sufficient to find that GPE had kneed him in the stomach , because such an injury could have occurred while the applicant was resisting the officers , as seen from the statements of GPE , GPE and GPE In such circumstances , the prosecutor considered that the officers had been justified in using physical force against the applicant , and that they had acted in line with the applicable domestic law .

NORP The applicant appealed against the prosecutor ’s decision . He submitted that PERSON had admitted to having bent his wrist back ( see paragraph CARDINAL above ) but that that detail had been disregarded during the investigation . He also submitted that the results of the medical examination had clearly indicated injuries on his abdomen which could not have been caused by the ORG lawful actions . The applicant noted that LAW allowed the use of physical force in order to prevent crime , arrest individuals who had committed crimes , or in other situations when justified by the public interest ( see paragraph DATE below ) , but not in order to establish a person ’s identity . He submitted that he was of advanced age ( DATE at the time of the incident ) and had a medium - level disability , so it was illogical that he could have violently resisted QUANTITY police officers .

The applicant also pointed out several discrepancies between the ORG statements :

( a ) V.B. had stated that the applicant had attempted to punch him inside the guard booth ( see paragraph CARDINAL above ) , whereas GPE had said that nothing had happened inside the booth ( see paragraph CARDINAL above ) .

( b ) J.D. had stated that he and PERSON had approached the guard booth and the applicant had stepped outside , and that physical force had been used against the applicant only when handcuffing him and only inside the booth ( see paragraph CARDINAL above ) . However , PERSON had stated that he had been examining the applicant ’s car when the applicant had approached him , and that the applicant ’s arms had been twisted when he was outside in order to make him identify himself ( see paragraph CARDINAL above ) . Meanwhile N.B. had presented yet another version of events : that the applicant had attempted to punch CARDINAL of the officers outside , then he had been handcuffed , and only then had everybody gone inside the guard booth , where nothing had happened ( see paragraph CARDINAL above ) . Lastly , the senior investigator PERSON had not noticed any active resistance by the applicant ( see paragraph CARDINAL above ) .

( c ) J.D. had stated that the applicant had attempted to lock himself inside the booth ( see paragraph CARDINAL above ) , but the booth did not have any mechanism which would allow it to be locked from the inside .

Accordingly , the applicant complained that the pre - trial investigation had not been thorough and had not objectively established the circumstances of his arrest and injury .

On DATE a senior prosecutor upheld the applicant ’s appeal and reopened the investigation .

NORP In DATE , at the prosecutor ’s request , a court medical expert carried out an additional examination of the applicant ’s medical file . The report on the results of that examination confirmed the findings of the previous medical examination ( see paragraph CARDINAL above ) . The report also specified that the bruises on the applicant ’s left wrist and the sprain of his shoulder joints could have been caused during a fight ( grumtynių metu ) or by handcuffing or twisting of his arms , and that the contusion on the abdomen could have resulted from a direct blow ( suduodant tiesioginį smūgį ) . The report concluded that the applicant ’s injuries constituted negligible health impairment , and that even though he had subsequently required medical treatment , this had been caused by his defective heart valve and not by the injuries .

NORP In DATE the prosecutor questioned CARDINAL other witnesses as requested by the applicant – his acquaintances A. and ORG They both stated that they had seen the applicant soon after his arrest and that they had noticed his injuries .

On DATE , at the applicant ’s request , ORG changed the prosecutor in charge of the pre - trial investigation . The court upheld the applicant ’s arguments that the previous prosecutor , who had decided to discontinue the investigation , could not be seen as impartial , and ordered ORG office to appoint a different prosecutor .

In DATE and DATE the new prosecutor inspected the location of the incident .

On DATE another witness requested by the applicant , his acquaintance GPE , was questioned . PERSON stated :

“ Around DATE , I do n’t remember the exact date , TIME I went to [ the applicant ’s ] workplace ... to ask him to give me a lift home . At that time it was still dark . Then I saw CARDINAL officers approach [ the applicant ] from both sides and twist his arms . I heard [ the applicant ] scream and ask who they were and why they were twisting his arms . After twisting his arms the officers led him to [ the guard booth ] . I heard [ the applicant ] screaming inside the booth and asking why they were hitting him . Then I saw the CARDINAL officers lead him outside handcuffed and with twisted arms . Before [ the applicant ] was taken inside the booth , his hands had not been handcuffed . I did n’t see whether [ the applicant ] had been hit , I only heard him ask why they were hitting him . Then I went to [ the applicant ’s son ’s house ] to inform him about what had happened but nobody answered the door , so I came back alone [ to the garage complex ] but I did n’t find anyone there . I did n’t see what happened afterwards . I spoke to [ the applicant ] DATE , around DATE , and he mentioned the incident with the officers ... ”

On DATE the prosecutor arranged a confrontation between the officers GPE and GPE They were both asked about the place where the applicant had allegedly attempted to punch V.B. , and gave the following responses :

“ PERSON : [ The applicant ] punched me inside the LOC , that is in the guard booth .

N.B. : I did n’t see if [ the applicant ] had attempted to punch the officer in the booth ... When I was outside , I saw jostling between the officers and [ the applicant ] ( įvyko susistumdymas ) . [ The applicant ] was jostling the officers , but I ca n’t say exactly if he punched an officer . It was dark , I could have been mistaken . ”

On DATE the prosecutor discontinued the pre - trial investigation , relying on essentially the same grounds as the previous prosecutor in his decision ( see paragraph CARDINAL above ) , and a senior prosecutor upheld that decision . However , on CARDINAL DATE ORG upheld the applicant ’s appeal and reopened the investigation . The court held that the investigation had not been thorough because it had not determined whether the use of force by the police officers had been within the limits provided by LAW ( see paragraph DATE below ) , and it had not established the circumstances surrounding the injury to the applicant ’s abdomen .

In DATE , at the prosecutor ’s request , a court medical expert carried out an additional assessment of the applicant ’s medical file . The report on the results of that assessment confirmed the findings of the previous medical reports ( see paragraphs CARDINAL and CARDINAL above ) . In addition , the report specified that the contusion on the applicant ’s abdomen could have been caused either by a blow from an object or by bumping into an object ( tiek suduodant , tiek atsimušant ) , and that the injuries to the applicant ’s left wrist and shoulder joints could have resulted from his offering resistance while being apprehended . The report also concluded that the injuries to the applicant ’s wrist , shoulder joints and abdominal area were not likely to have been caused by falling down ( nebūdingi sužalojimams , padarytiems nugriuvus ) . The examination could not determine the exact sequence of the injuries , but noted that they could have all been caused at the same time and that at that time the applicant could have been in various positions .

On DATE PERSON was questioned again . He confirmed his earlier statements ( see paragraph CARDINAL above ) , and added that on DATE he had arrived at the garage complex alone and that he had not been wearing a police uniform at the time . He also stated that at the time of his arrival the handler with a dog had been present at the scene and that it would have been impossible for the applicant not to see them .

On DATE the prosecutor discontinued the pretrial investigation . The prosecutor held that officers GPE , GPE and GPE had given consistent statements about the incident and there were no grounds to doubt them . On the other hand , the prosecutor considered that the applicant ’s statements had been inconsistent : during one questioning he had said that the officers had hit him inside the guard booth and during another he had said that they had hit him outside ; he had also stated that officer PERSON , who had arrived on the scene later , had been wearing a uniform , but PERSON had denied this ; lastly , the applicant had claimed that neither GPE nor a police dog had been present during the incident , but the contrary had been proven by GPE ’s official report and consistent statements of all the officers . The prosecutor also noted that the witness PERSON had not seen the officers hit the applicant . Lastly , the prosecutor held that the injury to the applicant ’s abdomen was not sufficient to find that he had been kneed by the officers , because the medical examination had shown that such an injury could have been caused either by being hit with an object or by bumping into an object . Accordingly , the prosecutor concluded that the use of physical force by the police officers had been a lawful and proportionate response to the applicant ’s violent resistance , and to his refusal to comply with their lawful orders .

The applicant appealed against the prosecutor ’s decision . He submitted that the investigation had still not clarified the contradictions between the ORG statements ( see paragraph CARDINAL above ) . He further submitted that GPE and PERSON ’s first reports had not mentioned that the applicant had been swearing at the officers or had attempted to punch CARDINAL of them , and that those allegations had been made only much later , well after the incident . The applicant also noted that , contrary to GPE ’s statements ( see paragraph CARDINAL above ) , he could not have tied his dog to a fence because there was no fence at the garage complex , nor was it possible to tie the dog to the brick wall of the garage .

On DATE a senior prosecutor dismissed the applicant ’s appeal , but on DATE the ORG quashed the prosecutor ’s decision and reopened the investigation .

On DATE witness GPE was questioned again . He stated :

“ [ W]hen I was on my way to the garage complex , QUANTITY from the guard booth , I saw a police car and stopped by the corner of the garage wall ... Next to [ the applicant ’s ] car there were QUANTITY officers in police uniforms and [ the applicant ] ... I heard one of the officers ask [ the applicant ] to whom the car belonged ... [ The applicant ] said that the car was his and that he would get the keys so that the officers could examine the car ... I saw [ the applicant ] turn round to go to the guard booth and then the larger police officer with a moustache grabbed him by the shoulder ... twisted his arm ... and the other officer twisted his other arm . Everything happened right next to [ the car ] . The CARDINAL officers led the applicant , with his arms twisted , to the guard booth . Outside , the officers still held his arms twisted behind his back , but did n’t handcuff him ... [ the applicant ] was not saying anything offensive and was not resisting . When [ the applicant ’s ] arms were twisted , he started shouting , “ Guys , why are you twisting my arms ? ” . But the officers , without any explanation , led him to the booth with his arms twisted behind his back . At that moment another man got out of the same police car , but I do n’t know if he was an officer or not because he was in plain clothes . He also went to the booth and was standing in the doorway because the door was open . I heard [ the applicant ] scream inside the booth , “ Guys , why are you hitting me ? ” . The third man did not enter the booth ; he stood in the doorway the whole time . I think [ the applicant ] and the officers were inside the booth about TIME . Then I saw the man who had been standing in the doorway step aside and the same CARDINAL officers lead [ the applicant ] from the booth with his hands handcuffed and twisted behind his back . I think both the officers were pulling up his handcuffed arms . Outside [ the applicant ] asked the officers , “ Guys , why did you hit me in the stomach ? ” ... I did n’t see the officers hit [ the applicant ] , I only heard him scream inside the booth ... I saw everything well because the area around the booth was lit . It was still before dawn then . I did n’t see a dog near the booth ... ”

On DATE the prosecutor discontinued the pre - trial investigation , relying on essentially the same grounds as in the previous decisions ( see paragraphs CARDINAL and DATE above ) . The applicant appealed against that decision , and on DATE a senior prosecutor reopened the investigation .

On DATE PERSON was questioned again . He essentially repeated his previous statements ( see paragraphs CARDINAL , CARDINAL and DATE above ) , but did not mention bending back the applicant ’s wrist outside . PERSON also stated that when he and PERSON had followed the applicant to the guard booth , GPE had probably followed them , but PERSON could not remember the exact order in which they had walked .

PERSON was also questioned DATE and the written record of his testimony was almost identical to that of GPE

On DATE N.B. was questioned again . He essentially repeated his previous statements ( see paragraphs CARDINAL and CARDINAL above ) , and added :

“ I did n’t go inside the guard booth , I stayed near the door , and that ’s why during previous questioning I said that nothing happened inside the booth and that I did n’t see if there had been an attempt to punch an officer in the booth , because I could n’t see it from the outside . When [ the applicant ] was led out of the booth , he was handcuffed ...

My dog was further away the whole time , tied to the garage wall ...

As for the punch ... I can only say that it appeared to me that [ the applicant ] had attempted to punch an officer . During the first questioning I said that he had punched an officer , but I may have been wrong because I did n’t consider this an important circumstance ; also , during that questioning I was n’t asked exactly whether there had been a punch or just an attempt to punch – as I said before , [ the applicant ] was jostling the officers , so it seemed to me that he had punched an officer . ”

On DATE the prosecutor discontinued the pretrial investigation , relying on essentially the same grounds as in the previous decisions ( see paragraphs CARDINAL , DATE and DATE above ) , and a senior prosecutor dismissed the applicant ’s appeal . However , on DATE ORG reopened the investigation . The court held that although the investigation concerned criminal activity allegedly committed by PERSON and GPE , these CARDINAL officers had been questioned as regular witnesses , in violation of LAW ( see paragraph CARDINAL below ) . The court considered that there had been a grave breach of GPE and GPE ’s defence rights , as they had been denied the special rights of persons who may testify about their own possibly criminal activity – such as the right to have a representative , the right to request to be granted the status of a suspect , and exemption from responsibility for refusing to testify or providing wrongful testimony . As a result , all the procedural actions carried out in their respect – such as interviews and confrontations – had to be declared void . Accordingly , the court concluded that essential investigative actions had not been carried out .

On DATE ORG upheld that judgment .

On DATE , at the applicant ’s request , the pre - trial investigation was transferred to ORG .

In DATE PERSON and J.D. were questioned as special witnesses who were testifying about their own alleged criminal activity ( see paragraph CARDINAL below ) . They both essentially repeated their earlier statements ( see paragraphs CARDINAL , DATE , DATE , DATE , DATE and DATE above ) , emphasising that they could no longer exactly remember all the details , because of the passage of time .

On DATE ORG discontinued the investigation . The prosecutor relied on essentially the same grounds as LOC in its earlier decisions ( see paragraphs DATE , DATE , DATE and DATE above ) , and concluded that the applicant ’s statements had been inconsistent , whereas the consistent statements of all the police officers had shown that the use of force had been a lawful and proportionate response to the applicant ’s resistance and his refusal to comply with the ORG lawful orders . On DATE a senior prosecutor upheld that decision .

On DATE ORG and on DATE ORG dismissed the applicant ’s appeals . Both courts concluded that the pre - trial investigation had been thorough and its discontinuation had been justified .

On DATE ORG charged the applicant with the administrative offence of refusing to comply with lawful orders of police officers and resisting them ( LAW ) . On DATE the administrative proceedings against the applicant were adjourned , pending the results of the pretrial investigation into his allegations of ill - treatment by the police , and were subsequently discontinued as time - barred .

According to the material submitted to the ORG , the applicant was never suspected or accused , nor did he hold any other status in the proceedings , in the criminal case concerning the robbery of the jewellery shop ( see paragraph CARDINAL above ) . A report by ORG DATE indicated that the applicant ’s sons PERSON were being investigated in connection with the robbery , but it appears that neither of them was charged . In DATE the investigation was suspended without identifying those responsible for the robbery .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;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);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in DATE in LOC . He is serving his prison sentence in a correctional colony in the village of GPE , GPE .

On DATE the applicant was arrested on suspicion of aggravated murder , robbery and firearms possession . He remained in detention throughout the investigation and trial .

On DATE the ORG found him guilty as charged and sentenced him to DATE imprisonment in a correctional colony .

On DATE the applicant was sent to serve his sentence in correctional colony no . ORG in the village of GPE , GPE ( “ the correctional colony ” ) .

When the applicant arrived at the colony the resident doctor noted that he had a first - degree disability : he was totally blind as a result of mature cataracts in both eyes . His blindness , which had developed during his detention , meant that he was unable to move around alone . In addition , he was suffering from coronary disease , hypertension , gallstones and chronic pancreatitis . He was included on a list of detainees requiring enhanced medical attention .

The applicant was assigned to colony unit no . CARDINAL for special - needs detainees , which comprised a separate dormitory . It housed CARDINAL detainees with various disabilities or serious illnesses . The unit had a dormitory measuring QUANTITY , a dining room , a toilet , showers , and several offices for administrative and medical personnel . A large part of the dormitory floor area was taken up by furniture such as bunk beds , bedside tables and chairs . According to a certificate issued by the correctional colony on DATE , each detainee was afforded QUANTITY of living space . As is apparent from the documents and photographs submitted by the Government , the premises were not adapted for visually impaired or blind persons .

The authorities assigned another inmate with cardiac problems to assist the applicant with his basic needs . The inmate did not receive any remuneration for the assistance he provided to the applicant . He helped the applicant to move around the dormitory and to take showers , and guided him in the dining room . The applicant had no prison work ; he remained in the unit throughout DATE .

According to the applicant , he faced particular difficulties in orientating himself in the correctional colony . He regularly stumbled over objects , slipped and fell . Such helplessness induced anguish and despair . In DATE he was diagnosed as having an emotionally unstable personality disorder .

On DATE and DATE a medical commission confirmed the applicant ’s disability . They recommended that the authorities provide him with a walking stick , a white cane , a player for audiobooks designed for blind people , a vocal clinical thermometer and a vocal tonometer . The recommendations were never enforced . According to CARDINAL entries in his medical record , on DATE and DATE officials asked the applicant whether he wished to receive those items . The applicant allegedly refused , but did not agree to make a written note to that effect in the medical record .

In DATE the inmate who had been assisting the applicant was released from detention and the applicant was left to fend for himself . According to a certificate issued by the authorities , he refused the assistance of other inmates .

On DATE the applicant asked for a medical examination to determine whether his state of health warranted his early release .

On DATE a medical commission held that as blindness was one of the diseases listed in Government Decree no . CARDINAL of DATE that may warrant release from a correctional institution , the applicant could be relieved from serving his sentence .

Relying on the conclusion of the medical commission , the applicant lodged an application with ORG , ORG , for release on health grounds . On DATE ORG dismissed the application . Referring to Ruling no . CARDINAL of ORG of GPE dated DATE ( see paragraph CARDINAL below ) , the court noted that the fact that the applicant ’s illness was included in the list provided for by Government Decree no . CARDINAL did not automatically mean that he would be released . The court cited the gravity of the crimes committed by the applicant and the length of the prison term he had yet to serve . Taking those CARDINAL factors into account , the court concluded that the applicant should remain in the correctional colony . ORG upheld that judgment on appeal .

On DATE ORG of GPE rejected a cassation appeal lodged by the applicant without examining it on the merits . It found that the applicant had failed to lodge the appeal within the statutory timelimit .


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

The relevant details of the application are set out in the appended table .

NORP The applicant complained of the excessive length of his pre - trial detention .


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in DATE . He is serving a life sentence in prison .

On DATE the applicant requested from the Governor of NORP Prison access to ( i ) the online version of PERSON ( ORG ) , ( ii ) the decisions of ORG and administrative courts , which are available on the Internet , and ( iii ) the HUDOC database of the judgments of ORG . The Governor refused his request . The applicant ’s subsequent complaint was dismissed by ORG ; ORG dismissed his further appeal . The applicant then appealed to ORG .

The Administrative Law Chamber of ORG delivered its judgment on DATE ( case no . CARDINAL ) . In respect of NORP legislation and ORG rulings , ORG noted that these were available in the paper version of PERSON ; it considered access to the paper version sufficient and found that the prison ’s refusal to grant the applicant access to the online version of PERSON had been lawful .

NORP However , ORG noted that from DATE the primary official version of PERSON had been its online version and that since then CARDINAL “ control copies ” of each edition had been printed . Despite that fact , the prisons had a duty to ensure that detainees had a reasonable possibility of searching for and familiarising themselves with legal acts .

Furthermore , ORG considered that the refusal of the prison administration to grant detainees access to the rulings of the administrative courts and of ORG interfered with their right to freely obtain information disseminated for public use . Given that the legislature had not specified any restrictions in this regard in respect of prisoners , their right – enshrined in LAW ( ORG põhiseadus ) – to obtain information had to be given an equal level of protection as that afforded to persons at liberty . Accordingly , the refusal of NORP Prison to grant the applicant access to the rulings of the NORP administrative courts and ORG had been unlawful .

On DATE FAC – to which the applicant had been transferred in the meantime – refused the applicant ’s request to be granted access to the Internet sites www.coe.ee ( ORG in GPE ) , www.oiguskantsler.ee ( the Chancellor of ORG , or Õiguskantsler ) ) and www.riigikogu.ee ( ORG , or PERSON ) . According to the applicant , he was involved in a number of legal disputes with the prison administration and needed access to those Internet sites in order to be able to defend his rights in court .

On DATE the applicant ’s complaint was dismissed by ORG .

By a judgment of DATE ORG upheld the applicant ’s complaint in respect of the Internet site www.coe.ee and ordered ORG to grant him supervised access to that site via a computer adapted for that purpose . ORG noted that ORG had afforded its detainees access to the online version of PERSON , the database of judicial decisions , and the Internet sites of ORG . ORG further referred to ORG judgment of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) and to section CARDINAL of LAW ( Vangistusseadus ) ( see paragraph CARDINAL below ) , which had entered into force on DATE . It noted that the Internet site of ORG to which detainees had been granted access DATE contained information only in LANGUAGE and LANGUAGE , whereas translations into LANGUAGE of the rulings of ORG were available on the Internet site of ORG in GPE . ORG considered that the burden of having the rulings of ORG translated into NORP could not be placed on the applicant and concluded that he also had to be granted access to the Internet site www.coe.ee . It considered that this Internet site was similar to the database of judicial decisions referred to in section CARDINAL of LAW . In respect of the Internet sites www.oiguskantsler.ee and www.riigikogu.ee , the court found that access to these sites was not foreseen by LAW ; in any case , the applicant could request information directly from the institutions concerned or from ORG .

Both parties appealed . On DATE ORG dismissed both appeals and upheld the first - instance court ’s judgment .

Both parties challenged ORG judgment before ORG . ORG of ORG referred the case to ORG plenary session on a point of constitutionality . By a judgment of DATE the plenary session of ORG dismissed the applicant ’s appeal and upheld ORG appeal . It quashed the lower courts’ judgments in so far as these granted the applicant access to the Internet site www.coe.ee .

ORG found that the Internet sites in question did not fall under the exceptions provided for in section CARDINAL - CARDINAL of LAW ( see paragraph CARDINAL below ) . Thus , ORG had to determine whether that provision was in conformity with LAW . ORG found that section CARDINAL of LAW interfered with the right – enshrined in LAW to freely obtain information disseminated for public use . It noted that the aims of imprisonment included the protection of the legal order and steering detainees towards law - abiding behaviour . As the possibility could not be technically excluded that detainees might misuse the right to use the Internet , access to the Internet was prohibited to them by LAW . The exception made in respect of the official databases of legislation and the database of judicial decisions was necessary in order to ensure that detainees were afforded an effective possibility to protect their own rights . It had to be taken into account that the official texts of legal acts were only accessible to detainees via the Internet .

ORG observed that the prohibition of the use of the Internet was necessary primarily in order to restrict detainees’ ability to engage in communication for purposes that did not accord with those of their detention , such as obtaining information that could jeopardise the prison ’s security or run counter to the directing of detainees towards law - abiding behaviour . Granting detainees access to any additional Internet site increased the security risk of their obtaining information running contrary to the aims of imprisonment . Moreover , this could create an opportunity for detainees to use the Internet for purposes other than that of freely obtaining information disseminated for public use . Thus , ORG concluded that the prohibition of detainees’ access to the Internet sites www.coe.ee , www.oiguskantsler.ee and www.riigikogu.ee was justified by the need to achieve the aims of imprisonment and in particular the need to secure public safety .

In respect of the proportionality of the restriction ORG considered that the denial of GPE access to the Internet sites www.coe.ee , www.oiguskantsler.ee and www.riigikogu.ee prevented them from misusing the Internet via these sites and that public safety was thereby protected . Moreover , granting detainees access to these Internet sites could increase the risk of their engaging in prohibited communication ; this in turn would necessitate increased levels of control ( and therefore costs ) . Thus , there were no alternative , equally effective means DATE besides the prohibition imposed by section CARDINAL - CARDINAL of LAW of achieving the legitimate aim in question . Lastly , ORG noted that detainees were able to contact the PERSON and the Chancellor of Justice by mail and make a request for information ( teabenõue ) . Therefore , GPE access to the public information contained on the Internet sites in question was not unduly restricted . Detainees’ access to the Internet site of ORG was guaranteed , pursuant to section CARDINAL of LAW ; those of ORG conventions and treaties that had been ratified by GPE were accessible on the Internet site GPE . ORG noted that it did not doubt that the printed works of ORG were accessible through prison libraries , and nor were detainees prevented from contacting ORG by post . ORG concluded that the restriction preventing detainees from accessing the Internet sites www.oiguskantsler.ee , www.riigikogu.ee and www.coe.ee was one of “ low intensity ” ; ORG gave more weight to the aim sought by that restriction . It considered that permitting detainees extensive use of the Internet would increase the likelihood of prison authorities losing control over GPE activities , as it could not be completely excluded that via the Internet sites in question detainees could use the Internet for other , unauthorised purposes . Accordingly , the impugned restriction was in conformity with LAW .

CARDINAL judges out of CARDINAL delivered a dissenting opinion according to which the applicant should have been granted access to all CARDINAL of the Internet sites in question . They considered that the use of the Internet sites in question did not generally pose a threat to public safety and was in conformity with the aims of imprisonment . It was unclear what additional costs the ORG would have to bear , since DATE in line with the applicable law – prisons were equipped with computers specially adapted to allow detainees access to the official databases of legislation and judicial decisions , and the prison service exercised supervision over the use of such resources . The information available on the Internet sites in question aided the exercising of the right of recourse to the courts . While it was true that detainees could also avail themselves of the right to make a request for information , this was a more time - consuming avenue and , particularly in the case of the Internet site of the Chancellor of ORG , required knowledge of which information was available on such Internet sites . No request for information under LAW ( NORP teabe seadus ) could be made to ORG in GPE . The rulings of ORG available in the HUDOC database – which was accessible to detainees – were not in NORP ( unlike the unofficial translations published on the Internet site www.coe.ee ) , and it could not be presumed that detainees had sufficient command of LANGUAGE or LANGUAGE to be able to read them . The printed works of ORG that were available in prison libraries did not include all the information that was published on the Internet site of ORG in GPE . Thus , the CARDINAL dissenting judges concluded that the restriction in question was unconstitutional .


Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

The applicant was born in DATE and lives in GPE .

According to the incident and the crime scene investigation reports , upon receipt of intelligence that terrorists were hiding in the area , on DATE a large group of gendarme officers from the ORG blocked the road near the village of PERSON in the NORP district . At TIME the gendarme officers stopped a lorry on suspicion of fuel smuggling . Subsequently , another lorry approached the gendarme officers . The applicant was travelling in this vehicle and it was being driven by his cousin , N.A. The soldiers ordered them to stop , but ORG continued to drive . According to the report drafted by the gendarme officers , the driver attempted to escape and the gendarme officers fired a warning shot in the air and then fired at the tyres of the lorry to stop it . According to the applicant , they were driving down a steep hill at high speed , and as the brakes had failed , they could not stop . They maintained that they had shouted from the window that the brakes were not working and ORG had tried to avoid hitting the other lorry , which was parked in the middle of the street , by trying to pass it on the right . He then headed towards the hills , where there was a group of gendarme officers . The gendarme officers opened fire , first in the air and then at the vehicle . The applicant was wounded in the hip and his cousin in the leg during the incident as a result of ricochet bullets .

NORP The crime scene investigation report revealed that there were no bullet holes on the left side or the back of the lorry . CARDINAL of the tyres were flat , namely the CARDINAL front tyres and the rear right tyre . CARDINAL bullet holes were observed on the right wing over the tyres , CARDINAL bullet holes in the petrol tank , a bullet entry and exit hole on the front right door , and another bullet hole on the right wheel rim . The gendarme officers further collected a total of CARDINAL bullet cases from the scene of the incident .

On DATE , a major from FAC wrote to ORG and requested authorisation to search the CARDINAL vehicles which had been stopped by the gendarmes . Upon receipt of authorisation , the gendarme officers searched the CARDINAL lorries . They found sixtysix barrels of smuggled fuel in the first lorry and QUANTITY in the applicant ’s cousin ’s lorry . No other illegal items were found in the vehicles . The applicant ’s cousin , N.A. , declined to sign the search report .

Also on DATE , CARDINAL gendarme officers tested the lorry belonging to the applicant ’s cousin in the presence of the village mayor . They reported that the vehicle had CARDINAL flat tyres , that there were CARDINAL bullet holes in the petrol tank , that the engine was working correctly and that the brake system was intact .

Subsequently , on DATE , the applicant ’s cousin gave a statement to ORG and stated that the applicant had been taken to ORG . He requested that criminal proceedings be initiated against the gendarme officers who had used force against them . He emphasised that when he had been told to stop he had been driving down a steep hill at high speed , and when he could not stop , he had shouted from the window that the brakes were not working . He had had no intention of escaping from the gendarmes . He further denied that he had been transporting smuggled fuel and maintained that the barrels found by the gendarmes must have been from the other vehicle .

NORP The public prosecutor also took statements from CARDINAL eyewitnesses to the incident . These QUANTITY individuals had also been in the lorry which had been stopped by the gendarmes on suspicion of fuel smuggling . According to their statements , while they were being questioned by the gendarme officers about the barrels found in their lorry , they saw another vehicle approaching . The gendarmes ordered the driver to stop but the driver failed to obey , shouting from the window that the brakes had failed . The driver then tried to pass their vehicle , which was blocking the road , on the right . The gendarmes opened fire , first into the air and then at the tyres . Both witnesses stated that the driver had no intention of escaping and was shouting that he was unable to stop .

On DATE , the applicant ’s cousin , ORG , gave a statement to ORG . He explained that on DATE of the incident , while he was driving down a steep hill , the gendarme officers ordered him to stop . He called out that he would stop , but the gendarmes opened fire and he was shot in the leg . He was able to stop the vehicle by using the handbrake . He stated that he had had no intention or reason to escape .

On DATE a statement was taken from the applicant at NORP police station . He explained that on DATE of the incident he had been travelling in his cousin ’s lorry . His cousin had told him that there was a problem with the brake system of the vehicle . When they approached the checkpoint , a gendarme officer ordered them to stop , and they shouted out that there was a problem with the brakes and that they were not able to stop . The gendarme thought that they were trying to escape and fired a shot in the air and then started shooting at them . The applicant was shot in the hip . He concluded that the gendarme who had shot at them was not at fault , as he must have thought that they were trying to escape .

On DATE statements were taken from the accused gendarme officers by a sergeant from ORG . They all stated that they had ordered the driver of the lorry to stop on suspicion of fuel smuggling . The driver initially stopped the vehicle . When the officers asked about the load of the lorry , he started driving away in an attempt to escape . The officers explained that they first fired warning shots in the air and then shot at the tyres to stop the lorry . They considered that the force they had used had been proportionate as they had only used their guns , whereas they were also equipped with heavy machine guns and hand grenades .

Based on the evidence in the file , on DATE the ORG delivered a decision not to prosecute . He concluded that the use of force had been legal pursuant to LAW no . CARDINAL on the establishment , duties and jurisdiction of the gendarmerie and section CARDINAL ( i ) of the Regulation on the Duties and Powers of the ORG . He found it established that the driver of the vehicle in which the applicant was travelling had disobeyed the order to stop and had continued driving . He further pointed out that the lorry had not stopped and that the officers had first fired warning shots in the air and had then shot at the tyres of the lorry .

On DATE ORG dismissed the applicant ’s appeal , finding the decision of ORG to be in line with domestic law .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 5+5-1 - Right to liberty and security (Article 5-5 - Compensation) (Article 5-1 - Deprivation of liberty;Article 5-1-f - Extradition;Article 5 - Right to liberty and security);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE in the town of LANGUAGE , in the Kazakh Soviet Socialist Republic , a constituent member of GPE . DATE he served in ORG in GPE . In DATE he enrolled as a student at the military academy in the town of ORG in GPE . When GPE was dissolved in DATE , GPE became an independent ORG . Under NORP law , all those who were permanent residents of GPE in DATE acquired NORP citizenship . A similar law was enacted in GPE . In DATE the applicant left the military academy and for personal reasons returned to GPE . He had a GPE passport and was married to a NORP woman .

In DATE the applicant was convicted in GPE for armed robbery . According to him , he was wrongly accused and ill - treated by the investigating officers . He claimed that the conditions of his detention in GPE were very poor , that prison officials ill - treated him and other convicts , that he was subjected to discrimination as an ethnic NORP and that prison officials extorted money from him .

The applicant served part of the sentence in a prison and was later transferred to an “ open colony ” , where convicts could move around unguarded . In DATE , when he was on leave from the colony , he fled to GPE . He explains that he feared for his life and for the lives of his relatives . In GPE he was put on the wanted list .

Upon his arrival in GPE the applicant obtained a false NORP passport . He lived and worked in GPE under a false name using that passport . The applicant ’s real identity was discovered in DATE ; he was sentenced by a judge to a fine for forgery of an official document , but remained in GPE .

The applicant claims that he tried to regularise his residence status . In particular , he claims that he was eligible for NORP nationality , since in DATE ( when the law on NORP nationality was enacted ) he had been residing in GPE , not GPE .

NORP In DATE the NORP authorities requested the extradition of the applicant to GPE . On CARDINAL DATE the applicant was arrested and detained in GPE in connection with that request , but on DATE he was released on the order of Judge PERSON extradition followed .

It appears that some time later the NORP authorities renewed their request . On CARDINAL DATE the applicant was detained again upon the orders of the NORP town prosecutor .

On DATE the applicant challenged the detention order before the court . The case was received by Judge PERSON from ORG , who set the date of the first hearing for DATE .

At the hearing of CARDINAL DATE the prosecutor challenged Judge PERSON on the ground that she had already participated in the examination of the applicant ’s extradition case earlier , in DATE , when she had ordered his release . It is unclear whether the applicant or his lawyer objected to the replacement of the judge .

On DATE Judge PERSON from ORG examined the applicant ’s complaint and ruled that the prosecutor ’s detention order of CARDINAL DATE was unlawful . ORG found that under NORP law a prison sentence handed down by a foreign court was not sufficient for a person to be detained without a detention order issued by a court in GPE . ORG ordered the prosecutor to take measures in order to rectify the situation complained of .

At the same hearing the prosecutor filed a request with ORG seeking the applicant ’s detention pending extradition . ORG examined it on the spot and ruled that the applicant was to be detained to prevent him from absconding .

On DATE that detention order was quashed by ORG as unsubstantiated . ORG noted , in particular , that in view of the applicant ’s profile and his previous behaviour ( namely , the fact that after his first arrest pending extradition in DATE he had continued to live openly at his officially known address ) there was no reason to suppose that he would flee . The applicant was released , and house arrest was imposed on him . He was required to stay at home during TIME .

In the meantime , on DATE , the Deputy Prosecutor General ordered the applicant ’s extradition to GPE . The applicant challenged that decision before the court . He referred to the facts which , in his view , made him eligible for NORP nationality . He also claimed that if he returned to GPE he risked being subjected to ill - treatment by the prison authorities . In support of this argument he invoked reports by various human rights defence groups and international organisations concerning the human rights situation in GPE , in particular in the area of the rights of prisoners .

On DATE ORG , in the presence of the applicant and his lawyer , examined the applicant ’s extradition case on the merits . In particular , it examined his allegations about the risk of illtreatment in GPE , the fact that he had been serving a sentence for an ordinary criminal offence and the fact that the NORP authorities had given assurances to the NORP authorities that he would not be illtreated . The extradition order was upheld .

On DATE ORG of GPE upheld the decision of ORG . It noted , in particular , that the applicant had been convicted of an offence which was not political in nature and had not tried to seek refugee status in GPE because of the alleged persecution , preferring instead to live there under another name . The fact that he had been granted leave from the colony was at odds with his allegations that he had been ill - treated there . ORG further examined reports by international organisations and NGOs on ill - treatment and poor conditions of detention in NORP prisons but concluded that they were not sufficient to show that the applicant personally ran the risk of ill - treatment .

NORP In DATE the applicant asked ORG to grant him NORP nationality . He claims that it was not his first attempt to that end , but the case file contains no documents in support of his claim . ORG replied that in view of his background ( in particular , the fact that at the time of the collapse of the GPE his permanent place of residence was in GPE ) he was not eligible for automatic conversion of his GPE passport to a NORP passport , and that he had not satisfied the formal criteria for lodging a naturalisation request .

NORP The applicant challenged the refusal of ORG in court . He claimed , in particular , that in DATE he was studying in GPE and was therefore eligible for NORP nationality . On DATE the ORG of GPE dismissed his complaint . The applicant ’s appeal against the decision of DATE is still pending .

It is unclear whether or not the applicant has been extradited .


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

The applicant was born in DATE and lives in GPE .

The applicant ’s father , ORG , was a well - known writer in GPE . In DATE he published a book entitled “ The Ship of Idiots ” ( PERSON laivas – hereinafter “ the book ” ) in which he presented his memoirs of various events in the history of GPE , often using a satirical and mocking tone . Several passages in the book discussed the personality and activities of ORG ( deceased at the time of publication ) . ORG had been a minister in ORG , which operated from DATE , and his son PERSON had been a prominent NORP politician since DATE . The book contained the following statements ( hereinafter “ the disputed statements ” ) , in which ORG was referred to as “ [ L. ] senior ” or “ the patriarch ” :

“ [ V.L. ] had to somehow cover for his father , who had for DATE collaborated with the ORG ... Having worked as a spy , he was returned home by GPE ... ” ( [ L. ] reikėjo kaip nors pridengti tėvą , ilgus metus bendradarbiavusį su KGB ... PERSON atidirbusį žvalgą namo sugrąžino Maskva ... )

“ Some were already [ trying to get familiar with ] the new ‘ NORP , PERSON ’s ... friend , ... spy , ... copier of strategic maps , [ L. ] senior ... ” ( PERSON vedžiojo už parankių naujai iškeptą „ patriarchą “ , PERSON ... draugą , ... žvalgą , ... strateginių žemėlapių kopijuotoją senąjį [ L. ] ... )

“ [ L. ] senior ... told how in DATE ... [ they ] had raised the flag in the castle tower ... [ H]ow afterwards they had had to flee to GPE in order to escape from the NORP , how on the way they had been arrested [ and ] interrogated ... ( and , as far as I know , recruited ) . ” ( NORP [ L. ] ... pasakojo , LAW metais ... pilies bokšte kėlė vėliavą , ... PERSON jiems po to teko nuo bolševikų bėgti į GPE , PERSON pakeliui juos areštavo , tardė ... ( o kiek man žinoma , ir užverbavo ) . )

“ The pharmacy was ejected onto the streets . Moreover , the pharmacists were sued because ‘ the NORP did not find on the veranda the QUANTITY oak bench which he had left there before the war . ” ( ORG išmetė į gatvę . GPE daugiau , vaistininkai buvo paduoti į teismą todėl , kad patriarchas verandoje nerado šešių metrų ąžuolinio suolo , kurį CARDINAL palikęs prieš karą . )

On the fourth page of the book it was stated that the author assumed full responsibility for the truthfulness of the facts presented in the book ( autorius prisiima visą atsakomybę už knygoje išdėstytų faktų tikrumą ) .

After the book ’s publication , ORG lodged a complaint with ORG ( hereinafter “ the prosecutor ” ) , seeking the opening of a pre - trial investigation against GPE for defamation of his late father . On DATE the prosecutor opened the investigation .

During the investigation , the prosecutor asked various bodies about the activities of ORG described in the disputed statements . He received replies from ORG , the Genocide and Resistance Research Centre of GPE , ORG , ORG , and ORG . They all stated that they did not have any information indicating that ORG had collaborated with the NORP or NORP regimes or any information confirming any of the other parts of the disputed statements . The prosecutor also interviewed several individuals who had been quoted as sources in GPE ’s book but they all stated that they were unable to confirm the truthfulness of the events described in the disputed statements .

On DATE the GPE City ORG acquitted GPE of defamation on the grounds that the offence could be committed only against a living person , whereas ORG was already dead when ORG ’s book had been published . The court noted that ORG ’s actions could have constituted the crime of contempt for the memory of a deceased person , but that charge had not been included in the indictment .

V.L. , GPE and the prosecutor all submitted appeals against that decision , and on DATE ORG quashed it . The court found that the indictment had not complied with the relevant procedural requirements , and returned the case to the prosecutor .

On DATE the prosecutor discontinued the pre - trial investigation . He considered that there was sufficient evidence to charge GPE with contempt for the memory of a deceased person , but criminal prosecution for that offence had become time - barred .

NORP In DATE ORG lodged a civil claim against V.P. He asked the court to order V.P. to publicly retract the disputed statements and to award him CARDINAL NORP litai ( LTL – MONEY ( ORG ) ) in respect of non - pecuniary damage . PERSON submitted that the disputed statements had been erroneous and insulting to the honour and dignity of his late father , as well as to his own honour and dignity .

V.P. disputed the claim , submitting that he had not intended to defame or insult anyone and that the disputed statements had been taken out of context . He contended that the book had been a product of literary creativity made up on the basis of his subjective memories , and that it had been written in figurative and exaggerated language which could be interpreted in many different ways . ORG thus argued that the disputed statements should be regarded as value judgments and not as factual statements . He further submitted that , in any event , when writing the book he had relied on various historical sources and witness testimonies , as well as on his own personal experience – he provided a list of books and other publications which he had consulted , and described the circumstances in which he had found out about the events discussed in the disputed statements . Therefore , he argued that the disputed statements had been sufficiently accurate . Lastly , ORG contended that both ORG and PERSON had been prominent politicians and public figures and therefore had to tolerate higher levels of criticism .

On DATE ORG died . The court adjourned the examination of the case until GPE ’s legal successors were identified . On DATE the applicant and her CARDINAL brothers , who had accepted their father ’s inheritance , were issued with certificates of inheritance , stating that they had inherited their father ’s estate in equal parts . On DATE the court decided to continue with the examination of the case , replacing the defendant ORG with the applicant and her brothers .

V.L. subsequently amended his claim and asked the court to declare that the disputed statements had been erroneous and insulting to the honour and dignity of himself and his late father ( see paragraph CARDINAL below ) , and to award him a symbolic sum of LTL CARDINAL ( approximately EUR CARDINAL ) in respect of non - pecuniary damage .

At the court hearing on DATE , ORG argued that the disputed statements amounted to statements of fact and not value judgments . He submitted that , in line with the domestic courts’ case - law , the burden was on the author to prove that those statements were factually accurate , but the evidence collected in both the civil and the criminal proceedings demonstrated that they did not have any factual basis .

The applicant and her brothers were represented by the same lawyer who had represented ORG in the civil proceedings up until his death . They submitted essentially the same arguments that ORG had submitted before ( see paragraph CARDINAL above ) . They also argued that an obligation to pay compensation for damage allegedly caused by a literary work was a personal obligation of the author and could not be transferred to his heirs . They furthermore submitted that the disputed statements had been based on their late father ’s memories and subjective opinions , and so they should not be required to prove the truthfulness of those statements .

On DATE ORG found in ORG favour . It stated that , in line with the domestic law , in order to uphold the claim , CARDINAL circumstances had to be established : firstly , that certain statements had been disseminated ; secondly , that those statements had concerned the claimant ( PERSON ) and his late father ( ORG ) ; thirdly , that the statements had been insulting to the honour and dignity of ORG and PERSON ; and fourthly , that the statements had been erroneous . The claimant ( PERSON ) had to prove that the first CARDINAL circumstances had existed , whereas the defendants ( the applicant and her brothers ) had to prove that the fourth circumstance had not ( see paragraph CARDINAL below ) .

ORG observed that there was no dispute that statements had been disseminated and that they had referred to ORG and PERSON ( see paragraph CARDINAL above ) . However , the parties disagreed as to whether they had amounted to statements of fact or to value judgments . The court found that the disputed statements had been presented as factual statements about ORG : they had implied that certain events had actually occurred , for example , that ORG had been recruited by the NORP forces and had collaborated with them , or that he had expressed support for PERSON ’s ideology ( see paragraph CARDINAL above ) . Accordingly , the court held that those statements should have had a sufficient factual basis .

Seeking to determine whether the disputed statements had been factually accurate , ORG examined the evidence which had been collected in the criminal proceedings ( see paragraph CARDINAL above ) , as well as the sources indicated by GPE himself in his written submissions to the court during the civil proceedings ( see paragraph CARDINAL above ) . The court found that none of those sources had been able to confirm any parts of the disputed statements to the standard of proof required in civil cases .

ORG next examined whether the disputed statements had been insulting to the honour and dignity of ORG and V.L. As for the first CARDINAL statements ( see paragraph CARDINAL above ) , it considered that , in the historical context of GPE , the allegations of collaboration with the NORP security services or of support for NORP ideology had clearly been insulting not only to ORG but also to his family , including PERSON , who had been a prominent politician himself . As for the fourth statement ( see paragraph CARDINAL above ) , it considered that allegations of ejecting the pharmacy owners onto the streets and suing them for a wooden bench – an item of movable property of low value – had created the impression of ORG as someone with low moral standards and a lack of respect for others , and that that statement had therefore been insulting as well , not only to ORG himself , but also to his family .

The court dismissed the defendants’ objection that the case concerned the personal obligations of their father . It held that the domestic law provided several different remedies for victims of defamation in publications ( see paragraph CARDINAL below ) . On the one hand , the victim could ask the court to order the author of the work to retract the disputed statements , which would be a personal obligation on the part of the author which could not be transferred to his or her heirs . On the other hand , the victim could ask the court to declare that the disputed statements were erroneous and defamatory ( insulting to the victim ’s honour and dignity ) , in other words to request an objective assessment of those statements . Such an assessment could be made without the involvement of the author and would thus not constitute a personal obligation on the part of the author . Accordingly , the court held that , since PERSON had made the latter request ( see paragraph CARDINAL above ) , domestic law permitted the transfer of civil liability to the author ’s heirs .

As a result , ORG upheld CARDINAL part of ORG claim and declared that the disputed statements had been erroneous and insulting to his and his late father ’s honour and dignity . It dismissed ORG claim for compensation in respect of non - pecuniary damage as timebarred .

NORP The applicant and her brothers lodged an appeal against the decision of ORG , presenting essentially the same arguments as before ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG upheld that decision in its entirety . It firstly stated that the key difference between statements of fact and value judgments was that the truthfulness of the former could be verified and proved , whereas the latter expressed a subjective view to which the criteria of truthfulness or accuracy did not apply . The court held that , notwithstanding the fact that the book had been based on the author ’s memories , the disputed statements had not been limited to expressing a subjective view on any persons or events , but alleged that certain actions had been taken and certain events had occurred . In the court ’s view , the average reader , even when reading the disputed statements as part of the entire book and not “ out of context ” ( see paragraph CARDINAL above ) , would perceive them as statements of fact and not as value judgments .

The Court of Appeal agreed with the defendants that ORG and PERSON had been public figures and therefore had to tolerate greater levels of criticism . It observed that , in line with the case - law of the domestic courts , dissemination of factually inaccurate statements about a public figure did not attract civil liability when such statements concerned that person ’s public activities and when their author had acted in good faith , seeking to inform society about such activities ( see paragraph CARDINAL below ) . Nonetheless , ORG stated that this could not justify dissemination of falsehoods which were insulting to a person ’s honour and dignity , even when they concerned a public figure . It held that , in the case at hand , the first - instance court had thoroughly examined the evidence collected during the criminal proceedings and the sources indicated by the author himself ( see paragraph CARDINAL above ) , and had reached the conclusion that , on the balance of probabilities , the events described in the disputed statements “ were more likely not to have happened than to have happened ” . ORG also examined additional sources referred to in the GPE appeal , but found that they did not contain any information which would enable it to reach a different conclusion than that reached by the firstinstance court . It therefore held that the factual accuracy of the disputed statements had not been proved . ORG also upheld the firstinstance court ’s conclusion that those statements had been insulting to the honour and dignity of ORG and PERSON ( see paragraph CARDINAL above ) .

Lastly ORG dismissed the GPE argument that they had been obliged to prove the truthfulness of their father ’s memories and subjective opinions . It observed that the disputed statements had been found to constitute statements of fact and not value judgments and it had therefore been necessary to prove their factual accuracy and not the reasons why the author might have held certain opinions . The court stated that the factual accuracy of the disputed statements could be proved by anyone and not only by their author , and that the applicant and her brothers had been able to rely on the material collected during the criminal proceedings and on the submissions made by their father in the civil proceedings , as well as to submit new evidence themselves . ORG also observed that the applicant and her brothers had accepted their father ’s inheritance ( see paragraph CARDINAL above ) , which included the rights to reprint the book and to receive royalties from it . The court considered that if the author ’s heirs had been exempted from the liabilities arising from the book , then the claimant , PERSON , would have been denied any possibility to defend his rights against the erroneous and insulting statements published therein .

Consequently , ORG upheld the firstinstance decision declaring the disputed statements erroneous and insulting to the honour and dignity of ORG and GPE

The applicant and her brothers submitted an appeal on points of law , presenting essentially the same arguments as before ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG dismissed that appeal . It underlined the importance of striking a fair balance between the right to freedom of expression and the right to respect for honour and dignity , but stated that the right to freedom of expression did not extend to the deliberate dissemination of falsehoods with the aim of humiliating , insulting or otherwise causing harm to others , even if directed at public figures . ORG observed that the lower courts had established that the disputed statements had been erroneous and insulting to the honour and dignity of ORG and PERSON ( see paragraphs CARDINAL and CARDINAL above ) ; it therefore ruled that the dissemination of those statements could not be justified by the exercise of the right to freedom of expression .

ORG also reiterated that the claim submitted by PERSON did not constitute a personal obligation of the author of the book and could therefore be transferred to his heirs . It stated that the applicant and her brothers had accepted their father ’s inheritance , which included certain rights to the book ( see paragraph CARDINAL above ) . Accordingly , once the court had declared that the disputed statements in the book had been erroneous and insulting to the honour and dignity of others , the author ’s legal successors had the obligation to ensure that those statements would no longer be disseminated .


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing)

Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in PERSON .

By Act III of DATE ORG introduced the right to legal assistance at the pre - trial stage . However , the law only came into force in DATE by means of LAW of DATE . Prior to this Legal Notice Maltese law did not provide for legal assistance during the pre - trial investigation and specifically during questioning , whether by the police or by a magistrate in his investigative role . Before questioning , however , suspects would be cautioned , that is , informed of their right to remain silent and that anything they said could be taken down and produced as evidence . At the time , no inferences could be drawn by the trial courts from the silence of the accused at this stage .

Statements taken by the police could be confirmed on oath before ORG , in which case the person was entitled to be assisted by a lawyer .

On DATE ORG were authorised by the duty Magistrate to execute a search and arrest warrant relative to residence F.

On CARDINAL DATE the search was carried out and it yielded the discovery of CARDINAL bags of heroin ( QUANTITY , PERCENT purity ) , CARDINAL ( ORG ) in CARDINAL separate bundles , electrical weighing scales and a number of plastic bags with the corners missing .

On CARDINAL DATE Mr GPE was arrested and , after being cautioned about his right to remain silent , was questioned in the absence of legal assistance on suspicion of drug trafficking . He made a statement in which he admitted to certain facts but denied others . In a nutshell he explained that QUANTITY of heroin found in his possession during a search at his house were being kept as a guarantee against a sum of money he was owed , and that he had known that he would be given the drug as a guarantee when he lent the money . He admitted that he had hidden the drug in his fridge and stated that his partner had had nothing to do with it and was unaware of it . He denied , however , that the drugs were his and also denied that he ever used or sold drugs . His signed statement also indicated that he had made the statement voluntarily , without threats or promises , that it was the truth and that he did not want to change anything in it .

A magisterial inquiry ( under NORP law known as an inquiry relating to the in genere ) was held on CARDINAL DATE and the Inquiring Magistrate drew up the procès verbal . On CARDINAL DATE the applicant was arraigned in court and the procès verbal as well as his statement referred to above were produced as evidence against him . During the committal proceedings ORG as a ORG also collected further evidence including witness testimony and documentary evidence .

On DATE a bill of indictment was issued against the applicant by the Attorney General .

During the criminal proceedings the applicant requested ORG to refer his complaint regarding the lack of legal assistance during the investigation and questioning to the constitutional jurisdictions . On an unspecified date the court granted the request and referred the case .

The applicant claimed a breach of his right to a fair trial on account of the lack of legal assistance during the investigation and questioning .

By a judgment of DATE ORG ( FAC ) in its constitutional competence , opting to take cognisance of the case on the merits despite the fact that the proceedings were still pending , found a violation of the applicant ’s right to a fair trial in so far as he had not been assisted by a lawyer when making a statement to the police before he had been charged , and ordered that ORG take note of this breach in considering all the evidence . It noted that the voluntary nature of the statement , together with the caution as to the right to remain silent , did not suffice to make up for such a failing , when it could not be said what the applicant would have done had he been assisted by a lawyer .

Both the Attorney General and the applicant appealed to ORG . By a judgment of DATE ORG took cognisance of the merits of the case despite the fact that the proceedings were still pending , and reversed the first - instance judgment . Reiterating its previous findings in other domestic judgments , it noted that the right to legal assistance was not meant to be a formality which , if not complied with , gave the accused a means to defend himself . That right served as a guarantee that every statement made by a person during questioning was made freely , in full knowledge of the right to remain silent , and without threats or promises , violence or other abuse . A breach of the right to a fair trial as a result of a lack of legal assistance during questioning occurred when a statement was taken abusively and without the guarantees of legitimacy , and not solely because of the lack of legal assistance . It followed that the sole fact that the applicant had made a statement , including both admissions of guilt and denials , in the absence of a lawyer could not ipso facto entail a violation of LAW . In ORG view , other circumstances such as the particular vulnerability of the individual being questioned had to exist in order to conclude that the absence of legal assistance breached the right to a fair trial . ORG could not agree with the first - instance court that LAW provided for the right to a lawyer without any consideration of the age , maturity and tainted criminal record of the accused as well as the nature of the accusations against him . A correct interpretation of PERSON v. GPE ( [ ORG ] , no . DATE ) had to be made in the light of the circumstances of that case , where Mr PERSON had indeed been in a vulnerable position when he had made the statement . The ratio of the right was precisely that , and not to allow a guilty person to go scot - free because of the failure to comply with a formality which lacked any real or grave consequences . The same exceptional and extreme circumstances had been present in other cases decided by the ECtHR such as Panovits v. GPE ( no . CARDINAL/CARDINAL , DATE ) and ORG v. GPE ( no . CARDINAL , DATE ) , and cases decided by the domestic ORG such as The Police vs PERSON of CARDINAL DATE and ORG of DATE . Even in the PERSON case the ORG had held that such a violation arose only if the fairness of the trial was compromised . The ORG had stated in that context that “ DATE especially paragraph CARDINAL thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ” ( § CARDINAL ) . This , according to ORG , was probably the reason why ORG had not embraced the more categorical approach suggested by Judge PERSON in his concurring opinion .

The Constitutional Court considered that in the present case the applicant had admitted that he had not been pressured into making the statement , and thus there had been nothing illicit and abusive in the taking of such a statement . It followed that the element of vulnerability found in the PERSON case was missing . Moreover , it had not been shown that the applicant had suffered prejudice as a result of the lack of legal assistance to the extent that there was an objective danger that he would not be given a fair trial .

In the absence of any such violation , no remedy was required , nor was there any need for the court to examine the appeal entered by the applicant .

NORP The applicant ’s trial by jury was due to start on DATE .

On DATE the applicant filed an application with ORG requesting it to suspend the trial by jury on the basis of a new set of constitutional proceedings which he had lodged ( alleging a violation of LAW and on the basis of the proceedings pending before this ORG .

On DATE ORG acceded to the request .