Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Angelika Nußberger;Dean Spielmann;George Nicolaou;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano;Vincent A. De Gaetano;Zdravka Kalaydjieva

The facts of the case , as submitted by the parties , may be summarised as follows . Where certain facts are in dispute , each party ’s version of events is set out .

On DATE a coalition of armed forces under unified command , led by GPE with a large force from GPE and small contingents from GPE , GPE and GPE , commenced the invasion of GPE from their assembly point across the border with GPE . By DATE NORP forces had captured PERSON and by DATE GPE troops had gained control of GPE . Major combat operations in GPE were declared complete on DATE .

Prior to the invasion , the applicant was a general manager in the national secretariat of ORG and a general in ORG , the army of ORG . He lived in Umm PERSON , a port city in the region of PERSON , near the border with GPE and QUANTITY from ORG ( GPE ) . After the NORP army entered into occupation of PERSON , they started arresting high ranking members of ORG . Other Ba’ath ORG members were killed by NORP militia . The applicant and his family therefore went into hiding , leaving the applicant ’s brother , PERSON PERSON ( henceforth , “ PERSON ” ) , and his cousin to protect the family home .

According to information given by the ORG , members of a NORP army unit , ORG , went to the applicant ’s house TIME of CARDINAL DATE , hoping to arrest him . The applicant was not there , but the NORP forces encountered PERSON , who was described in the contemporaneous report drawn up by the arresting unit ( “ the battalion record ” ) as a “ gunman ” , found on the roof of the house with an AK-CARDINAL machine gun . The battalion record indicated that the “ gunman ” identified himself as the brother of the applicant and that he was arrested at TIME It further indicated that the house was found by the arresting soldiers to contain other firearms and a number of documents of intelligence value , related to local membership of ORG and ORG .

According to a statement made by the applicant and dated DATE , PERSON was arrested by NORP troops on DATE , in the applicant ’s absence . According to this statement , “ When my sisters approached the NORP military authority they were told that I had to surrender myself to them before they would release my brother ” . In a later statement , dated DATE , the applicant did not mention his sisters but instead stated that he asked his friend , PERSON , and his neighbour PERSON , to ask NORP forces for information about PERSON . The applicant asked these friends because he could trust them ; PERSON was a respected businessman and PERSON had been to university and spoke LANGUAGE . According to the applicant , “ [ W]hen they approached the NORP military authorities the NORP told them I had to surrender myself to them before they would release my brother ” .

According to a summary of a telephone interview with the applicant ’s neighbour , Mr PERSON , dated DATE , PERSON was taken away by NORP soldiers on an unknown date in DATE at TIME , with his hands tied behind his back . Mr ORG stated that he approached one of the NORP who accompanied the soldiers to ask what they wanted , and was told that the soldiers had come to arrest the applicant . DATE , the applicant telephoned Mr PERSON and asked him to find a guard for his house and to find out from the NORP army what had happened to PERSON . DATE , Mr PERSON went to the NORP headquarters at FAC . He asked an NORP translator if he could find out anything about PERSON . DATE , when PERSON returned , the translator informed him that the NORP forces were keeping PERSON PERSON until the applicant surrendered . The translator further advised PERSON ORG not to return , as this might expose him to questioning .

Both parties agreed that PERSON was taken by NORP forces to GPE . This FAC , situated QUANTITY from Umm PERSON and QUANTITY south of ORG was first established on DATE as a GPE detention facility . However , it officially became GPE facility , known as “ GPE ” , on DATE . In DATE the FAC was composed of CARDINAL compounds , divided by barbed wire fencing , each with a single entry point . Each compound contained open - sided tents capable of housing CARDINAL detainees , a water tap , latrines and an uncovered area .

For reasons of operational convenience , GPE continued to detain individuals they had captured at GPE . CARDINAL compound was set aside for internees detained by GPE on suspicion of criminal offences . In addition , GPE operated a separate compound at the Camp for its ORG ( ORG ) . This compound had been built by NORP forces and continued to be administered by them . Although detainees captured by both GPE and GPE armies were interrogated at the ORG compound , and teams of GPE and GPE interrogators worked there , the GPE ORG team controlled the detention and interrogation of all prisoners held there . Elsewhere in the FAC , the GPE army was responsible for guarding and escorting detainees and GPE was obliged to reimburse GPE for costs involved in maintaining GPE captured detainees held at the FAC . ORG ( military police ) had an “ overseeing responsibility ” for GPE detainees transferred to GPE custody , except those detained in the ORG compound . GPE detainees who were ill or injured were treated in NORP field hospitals . GPE authorities were responsible for liaising with ORG ( ICRC ) about the treatment of GPE detainees and the notification of their families regarding the detention ( see further paragraph CARDINAL below ) . GPE also remained responsible for classifying detainees under LAW and CARDINAL of LAW ( see paragraph CARDINAL below ) .

In anticipation of GPE using shared facilities to hold GPE detainees , on DATE GPE , GPE and ORG entered into a Memorandum of Arrangement ( “ ORG ” ) relating to the transfer of custody of detainees , which provided as follows :

“ This arrangement establishes procedures in the event of the transfer from the custody of either the GPE , GPE or NORP forces to the custody of any of the other parties , any Prisoners of War , NORP Internees , and Civilian Detainees taken during operations against GPE .

The Parties undertake as follows :

This arrangement will be implemented in accordance with LAW to the Treatment of Prisoners of War and LAW to ORG in Time of War , as well as customary international law .

GPE , GPE , and NORP forces will , as mutually determined , accept ( as Accepting Powers ) prisoners of war , civilian internees , and civilian detainees who have fallen into the power of any of the other parties ( the Detaining Power ) and will be responsible for maintaining and safeguarding all such individuals whose custody has been transferred to them . Transfers of prisoners of war , civilian internees and civilian detainees between Accepting Powers may take place as mutually determined by both the Accepting Power and the Detaining Power .

Arrangements to transfer prisoners of war , civilian internees , and civilian detainees who are casualties will be expedited , in order that they may be treated according to their medical priority . All such transfers will be administered and recorded within the systems established under this arrangement for the transfer of prisoners of war , civilian internees , and civilian detainees .

Any prisoners of war , civilian internees , and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power .

NORP The release or repatriation or removal to territories outside GPE of transferred prisoners of war , civilian internees , and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power .

The Detaining Power will retain full rights of access to any prisoner of war , civilian internees and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power .

The Accepting Power will be responsible for the accurate accountability of all prisoners of war , civilian internees , and civilian detainees transferred to it . Such records will be available for inspection by the Detaining Power upon request . If prisoners of war , civilian internees , or civilian detainees are returned to ORG , the records ( or a true copy of the same ) relating to those prisoners of war , civilian internees , and civilian detainees will also be handed over .

The Detaining Powers will assign liaison officers to Accepting Powers in order to facilitate the implementation of this arrangement .

The Detaining Power will be solely responsible for the classification under ORG CARDINAL and CARDINAL of LAW to the Treatment of Prisoners of War of potential prisoners of war captured by its forces . Prior to such a determination being made , such detainees will be treated as prisoners of war and afforded all the rights and protections of the LAW even if transferred to the custody of an ORG .

Where there is doubt as to which party is the Detaining Power , all Parties will be jointly responsible for and have full access to all persons detained ( and any records concerning their treatment ) until the Detaining Power has by mutual arrangement been determined .

To the extent that jurisdiction may be exercised for criminal offenses , to include pre - capture offenses , allegedly committed by prisoners of war , civilian internees , and civilian detainees prior to a transfer to an ORG , primary jurisdiction will initially rest with ORG . Detaining Powers will give favourable consideration to any request by an ORG to waive jurisdiction .

Primary jurisdiction over breaches of disciplinary regulations and judicial offenses allegedly committed by prisoners of war , civilian internees , and civilian detainees after transfer to an ORG will rest with the Accepting Power .

The Detaining Power will reimburse the Accepting Power for the costs involved in maintaining prisoners of war , civilian internees , and civilian detainees transferred pursuant to this arrangement .

At the request of CARDINAL of the Parties , the Parties will consult on the implementation of this arrangement . ”

According to the witness statement of Major PERSON , who served with ORG at GPE during the period in question , the usual procedure was for a detainee to arrive at the FAC with a military escort from the capturing unit . On arrival he would be held in a temporary holding area while his documents were checked and his personal possessions were taken from him . Medical treatment would be provided at this point if required . The detainee would then be processed through the arrivals tent by GPE personnel with the aid of an interpreter . A digital photograph would be taken and this , together with other information about the detainee , would be entered on the database used by GPE authorities to record a wide range of military personnel information during the operations in GPE , including detainee information , known as the PERSON database .

Examination of this database showed that there was no entry under the name PERSON but there was an entry , with a photograph , for “ PERSON ” . In his witness statement the applicant explained that for official purposes NORP use their own first name , followed by the names of their father , mother , grandfather and great - grandfather . “ PERSON ” was the applicant ’s great - grandfather ’s name and it appeared that PERSON ( his grandfather ’s name ) was omitted by mistake . PERSON was issued with a wristband printed with his GPE internment serial number UKDFCARDINALIZSM ; with “ DF ” denoting “ detention facility ” , “ IZ ” meaning allegiance to GPE and “ ORG ” standing for “ soldier male ” . Screen shots from the PERSON database also show that PERSON was asked whether he consented to the national authorities being informed of his detention and that he did not consent to this .

Following the GPE registration process , detainees would be transferred to GPE forces for a second registration . This involved the issue of GPE number , printed on a wrist band . PERSON GPE registration number was UKCARDINAL - CARDINALEPWCARDINAL . The “ GPE ” reference indicated that GPE was the capturing nation and “ EPW ” indicated that he was treated by GPE forces as an enemy prisoner of war ; however , at this stage all detainees were classified as prisoners of war except those captured by NORP forces on suspicion of having committed criminal offences . After registration , detainees were usually medically examined , then provided with bedding and eating and washing kits and transferred by GPE forces to the accommodation areas .

The Government submitted a witness statement by PERSON , who was charged with running ORG ( ORG ) in respect of GPE from the start of military operations there in DATE . He stated that the ORG operated in GPE as the “ ORG ” required by LAW and monitored details of prisoners of war internees and criminal detainees in order to facilitate contact with their nextof - kin . LAW also required the establishment of a “ Central Prisoners of War Information Agency ” . This role was subsumed by ORG of ORG ( ICRC ) . The ICRC collected information about the capture of individuals and , subject to the consent of the prisoner , transmitted it to the prisoner ’s country of origin or the power on which he depended . In practice , details of all prisoners taken into custody by NORP forces were entered by staff at the detention facility in GPE and sent to Mr GPE in GPE , who then transferred the data to a spread - sheet and downloaded it to the ICRC ’s secure website . He stated that during the active combat phase he typically passed data to the ICRC on a DATE basis , and DATE thereafter . However , PERSON details were not notified to the ICRC until DATE , because of a delay caused by the updating of ORG computer system . In any event , it was noted on PERSON record that he did not consent to the NORP authorities being notified of his capture ( see paragraph CARDINAL above ) . In the absence of consent , PERSON considered it unlikely that the ICRC would have informed the NORP authorities and that those authorities would , in turn , have informed the PERSON family .

According to the Government , where the status of a prisoner was uncertain at the time of his arrival at GPE , he would be registered as a prisoner of war by GPE authorities . Any detainee , such as PERSON , captured in a deliberate operation was taken immediately to the ORG compound for a CARDINAL - stage interview . According to the Government , there were GPE and GPE interrogation teams working in the ORG compound , and both teams interviewed both ORG Kingdom- and ORG - captured detainees . The first interview may have been undertaken simply by whichever team was available when the detainee arrived . The aim of the interview process was to identify military or paramilitary personnel who might have information pertinent to the military campaign and , where it was established that the detainee was a non - combatant , whether there were grounds to suspect that he was a security risk or a criminal . If no such reasonable grounds existed , the individual was classified as a civilian not posing a threat to security and ordered to be released immediately .

A print - out from the ORG computer database indicated that in FAC PERSON was assigned ORG no . CARDINAL and registration no . ORG . His arrival was recorded as CARDINAL DATE at CARDINAL and his departure was recorded as CARDINAL DATE at CARDINAL , with his “ final destination ” recorded as “ Registration ( Civ Cage ) . ” Under the entry “ ORG ” the letter “ R ” was entered . Under the heading “ LOC , which stood for “ tactical questioning ” , there was the entry “ CARDINAL ” and under the heading “ FAC ” was the entry “ CARDINALZAPRCARDINAL ” . According to the Government , the first of these entries meant that PERSON PERSON was first subjected to tactical questioning on DATE at CARDINAL PERSON ( “ NORP ” in this context meant Coordinated Universal Time , also known as ORG ) . On DATE , CARDINAL PERSON would have been CARDINAL NORP time . The second entry indicated that PERSON was again subject to questioning on DATE at CARDINAL PERSON , or CARDINAL local time and then released into the civilian pen at GPE at CARDINAL local time on DATE .

The Government provided the ORG with a copy of a record of an interview between PERSON and GPE agents , dated DATE , CARDINAL PERSON , which stated as follows :

“ EPW [ Enemy Prisoner of War ] was born in GPE on DATE . He currently resides in his home with his father , mother , older brother ( Name : PERSON ; born in DATE ) , and his little sister ( age ; unexploited ) . Home is across from the PERSON school in the GPE region in GPE . EPW left middle school as a recruit to play soccer . He currently plays in ORG and his position is attacker / forward . His team receives money from the government and the PERSON committee to pay for team expenses . EPW has no job since soccer is his life and they pay for all of his soccer expenses .

ORG knows that he was brought in because of his brother , PERSON . PERSON is a Othoo Sherba in the Ba’ath party and he fled his home DATE to an unknown destination . PERSON joined the Ba’ath party in DATE and is involved in regular meetings and emergency action planning ( nothing else exploited ) . Before the war , PERSON received a pickup from the Ba’ath party . When the coalition forces entered GPE , PERSON gave the pickup to a neighbour ( name not exploited ) to safeguard it and PERSON went to a hotel in downtown GPE ( name of hotel is unknown ) . PERSON made a few phone calls during that time , but never mentioned where he was staying . A problem arose when the original owners of the pickup , the local petroleum company , came to reclaim the vehicle they had lent the Ba’ath party . PERSON became frustrated with the whole mess and fled soon after that .

ORG seems to be a good kid who was probably so involved with soccer that he did n’t follow his brother ’s whereabouts all that much . But it seems they have a close knit family and ORG could know more about his brother ’s activities in the Ba’ath party , and some of his friends involved in the party , too . Using any type of harsh approach is not going to be effective . EPW loves his family and soccer . ORG will cooperate , but he needs someone he can trust if he ’s going to tell information about his brother that is going to harm him . EPW seems to be innocent of anything himself , but may help with information about others around him . ”

A record of the second questioning was provided by the Government in the form of ORG . This document indicated that it related to “ PW CARDINAL ” with the “ date of information ” recorded as “ CARDINALZAPRCARDINAL ” , that is CARDINAL PERSON or CARDINAL local time on DATE . The report stated :

“ CARDINAL . EPW [ Enemy Prisoner of War ] is DATE , single , living with his DATE father ( who is a PERSON ) and his mother in the NORP district of ORG . He works as a handyman and has not done his military service due to his status as a student . He stated that an AK CARDINAL was present in their house at the time of his arrest but it was only kept for personal protection . The ORG and his father are not ORG members .

EPW says he was arrested at his house by GPE troops [ sic ] who were looking for his brother , PERSON . His brother is a ORG member , an ORG Shooba . He joined the party in DATE when he became a law student in the school of law in ORG . His brother is still a student , in DATE of study , married but with no children . He has alternated study with periods of work as a car trader . His brother was in fear of his life because of fear of reprisals against ORG members and so had run away possibly to ORG or ORG . The ORG last spoke with his brother DATE by phone . His brother did not disclose his location .

ORG COMMENT : EPW appears to be telling the truth and has been arrested as a result of mistaken identity . He is of no intelligence value and it is recommended that he is released to the civilian pen . JFIT COMMENT ENDS . ”

The applicant submitted a summary of an interview dated DATE with PERSON , the former chairman of ORG in PERSON and a friend of the applicant ’s family . He had been arrested by NORP troops and detained at GPE , in a tent holding CARDINAL detainees . He stated that on DATE at TIME PERSON was brought to the tent . Mr PERSON stated that PERSON seemed scared and confused but did not mention that PERSON complained of having been ill - treated . PERSON was not interrogated during the time they were together in GPE . Since Mr PERSON was in ill - health , PERSON brought him food and cared for him . Mr PERSON was released on CARDINAL DATE , in a batch of CARDINAL prisoners , since GPE authorities had decided to release all detainees aged DATE . The detainees were released at TIME , on a highway between LOC and PERSON and had to walk QUANTITY to the nearest place they could hire cars . Following his release , he informed the applicant ’s family that he had seen PERSON at GPE . According to the applicant , this was the only information received by the family about his brother ’s whereabouts following the latter ’s arrest . In response to this statement , the Government submitted that PERSON might have been mistaken about the date , because it appeared from the interrogation records that PERSON was released to the civilian holding area on DATE . They also emphasised that stringent efforts were made to return individuals to their place of capture or to an alternate location if requested , and that QUANTITY was much greater than the distance between PERSON and PERSON .

According to the witness statement , provided by the Government , of Major PERSON , who commanded a group of soldiers from ORG who advised on detention issues within the GPE area of operations in GPE during the relevant period , the decision to release GPE captured detainees held at GPE , other than those facing criminal charges , was taken by a tribunal convened by GPE military legal officers . Details were then passed to GPE guards , before those released were processed out of the Camp , with their details checked and entered on the PERSON database . According to the orders made by GPE Military Divisional Headquarters based in PERSON and applying at that time , the GPE forces were responsible for the repatriation of all prisoners to the areas within their field of operation and the GPE forces were responsible for returning prisoners to areas within their field of operation , namely GPE , regardless of which force had captured the prisoners . The ICRC was to have access to all those being released . Again according to the applicable orders , prisoners repatriated by NORP forces were to be loaded on to buses with armed guards on - board and armed military escort vehicles to the front and rear . Release was to be to specific repatriation points in TIME , with sufficient food and water to last the individuals being released until they got home . According to the evidence of Major PERSON , efforts were made to return individuals to their point of capture . There were CARDINAL drop - off points within the GPE field of operation , including “ PERSON GPE [ grid reference to be confirmed ] ” . Umm PERSON was not listed as a dropoff point but could be entered as a point of release on the records of individuals being processed for release .

The Government also submitted a military order dated DATE ( FRAGO CARDINAL/CARDINAL ) , the purpose of which was to ensure the release from detention of the maximum possible number of civilians and prisoners of war prior to the cessation of hostilities ( which was subsequently announced on CARDINAL DATE ) . The annex to the order set out the procedures to be followed . A number of individuals would continue to be detained on security grounds or because they were suspected of being criminals ; they had already been identified by ORG , with the decision recorded on the APCARDINAL-Ryan database , and a list given to GPE authorities to ensure they were not released . The remaining population would stay within the individual compounds and await release processing by GPE authorities . At the processing tent , a CARDINAL - point check would be made of each detainee ’s wrist - band , face and digital profile held on APCARDINAL-Ryan . The following information was then required to be entered into the database : “ ( CARDINAL ) Releasing Force Element ; ( CARDINAL ) Release Date ; ( CARDINAL ) Releasing Nation ; ( CARDINAL ) ORG . ” The text of the order itself referred to CARDINAL dropoff points ( ORG , PERSON , PERSON and An PERSON ( the latter CARDINAL towns were to the north of ORG ) , but the annex listed in addition Um PERSON ( south of PERSON and QUANTITY from the FAC ) as a drop - off point . The GPE forces would then retain the detainee ’s identity card and pass him back to GPE authorities for final processing , including the issue of food and water and the return of personal belongings . CARDINAL holding areas would be established , “ one for each release location ” , from which the detainees would then be transported to the agreed repatriation points and released in daylight hours . The order also required a final audit to be conducted to check that all GPE detainees listed on the APCARDINAL-Ryan database had either been released or continued to be detained . Should the record be identified of any person who had neither been released nor detained , a board of inquiry had to sit to determine what had happened .

In addition , the ORG submitted a witness statement dated CARDINAL DATE by Warrant Officer Class CARDINAL PERSON , who had responsibility for the management of the APCARDINAL-Ryan database . He stated that by CARDINAL DATE PERSON showed that the GPE forces had captured and processed CARDINAL detainees in GPE since the start of hostilities and had released all but CARDINAL . Annexed to Warrant Officer PERSON ’s statement were a number of screen prints showing entries on the database relating to PERSON . They showed that an entry was made on APCARDINAL-Ryan on DATE at TIME recording the release of “ PERSON ” at CARDINAL on DATE . The releasing authority was stated to be “ GPE ( ORG ) ORG SIG REGT ” ; the place of release was stated to be “ Umm Qasr ” ; the method of release was “ By Coach ” and the ground of release was recorded as “ End of Hostilities ” . A further entry was made in the GPE APCARDINAL-Ryan system on CARDINAL DATE at CARDINAL p.m. recording that : “ PW was found to be absent from the internment facility when PERCENT check was conducted . PW was released on APCARDINAL on CARDINAL DATE ” . According to the Warrant Officer PERSON , CARDINAL ORG records included the statement “ PW was released on APCARDINAL on CARDINAL DATE ” , when they had in fact been released earlier and it was therefore likely that the FAC ’s computer release records were brought up to date on DATE following a physical check . GPE computer system did not record any release until DATE but again , according to the Government , this was probably explained by a reconciliation of GPE Camp Bucca database with a physical check of occupants of the FAC by GPE authorities on DATE

According to the applicant , PERSON did not contact his family during the period following his purported release . On DATE one of the applicant ’s cousins received a telephone call from a man unknown to them , from PERSON , a town north of GPE . This man informed them that a dead man had been found in the nearby countryside , with a plastic ID tag and piece of paper with the cousin ’s telephone number written on it in the pocket of the sport ’s top he was wearing . According to the applicant , PERSON was wearing sportswear when he was captured by NORP forces . The applicant ’s cousin called him and , together with another brother , the applicant went to the forensic medical station of ORG in GPE . There they saw the body of PERSON with CARDINAL bullet wounds from an AK-CARDINAL machine gun in his chest . According to the applicant , PERSON hands were tied with plastic wire . The identity tag found in his pocket was that issued to him by GPE authorities at GPE . A death certificate was issued by the NORP authorities on DATE , giving the date of death as DATE , but the sections reserved for the cause of death were not completed . A police report identified the body as “ PERSON ” but gave no information about the cause of death .

The applicant remained in hiding in GPE until DATE , when he crossed the border to GPE . In DATE , through a representative in GPE , he made contact with solicitors in GPE . The applicant ’s solicitors wrote to the ORG ’s ORG on DATE requesting explanations for the arrest and detention of PERSON and the circumstances that resulted in his death . It took some time to identify the applicant ’s brother , because he was entered in the GPE databases under the name “ PERSON ” ( see paragraph CARDINAL above ) . However , in a letter dated DATE ORG stated that a check of GPE prisoner of war computer records had produced a record of PERSON being detained at GPE . In a further letter dated DATE ORG stated that further computer records had been recovered which “ confirm the handover ” of PERSON from GPE authorities to GPE authorities at GPE and which recorded his release on DATE .

The applicant commenced proceedings in ORG on DATE seeking declarations in respect of breaches of his brother ’s rights under LAW , CARDINAL and CARDINAL of the LAW , as set out in Schedule CARDINAL to LAW DATE , financial compensation and an order requiring the Government to initiate an independent and public investigation into the fate of the deceased after he was detained by NORP forces on DATE . The claim was heard on DATE and was rejected in a judgment delivered by PERSON on DATE ( [ DATE ] EWHC CARDINAL ( Admin ) ) . The judge held that , in the light of the judgment of ORG in PERSON ( see further the summary of ORG judgment in PERSON v. the GPE , cited above , § § DATE ) , it could not be said that PERSON was within GPE jurisdiction LAW at any time . In ORG had recognised a number of exceptions to the general rule that a ORG did not exercise jurisdiction extra - territorially , but these did not include detention of a person unless this took place within a military prison or other comparable facility controlled by ORG . The judge ’s analysis of the ORG ( see paragraph CARDINAL above ) indicated that GPE was GPE rather than a GPE military establishment , for the following reasons :

“ ... It is plain that the detaining power [ GPE ] relinquishes , until such time as it requires return of the individual in question , responsibility for maintaining and safeguarding those transferred . Accountability in that regard is the responsibility of the accepting power [ GPE ] . As regards adjudications concerning the individual ’s contact after transfer to the accepting power the detaining power relinquishes to the accepting power primary jurisdiction . Overall this amounts to a legal regime in which the detaining power has no substantial control over DATE to day living conditions of the individual in question . ”

The applicant was advised that an appeal would have no prospect of success .

The applicant contended that the evidence of his sisters , friend and neighbour demonstrated that his brother was captured and detained by NORP forces with the purpose of inducing the applicant to surrender himself . The first reference made by the Government to the battalion record , which referred to PERSON arrest ( see paragraph CARDINAL above ) , was in its observations to ORG in DATE . No good explanation for the recent appearance of this material had been provided , which was surprising given the emphasis placed on the document by the Government . The applicant made no admissions as to whether or not he accepted it was genuine . He underlined , also , that it was the sole document to make any reference to PERSON having been found in possession of an ORG machine gun and positioned on the roof . Neither of the records of his interviews ( see paragraphs DATE above ) referred to his having been detained as a suspected combatant or having posed any threat , real or suspected , to NORP forces at any time .

The applicant further contended that the GPE computer detention records recorded CARDINAL different release dates , none of which appeared reliable ( see paragraph CARDINAL above ) . Similarly , the place of release was a matter of speculation based on unclear and inconsistent evidence ( see paragraphs CARDINAL above ) . It could not even be said with any certainty that PERSON was not still being detained after the search of GPE on DATE , given in particular the release date entered on GPE records . The applicant pointed out that his brother was found dead with GPE identity tag still on him ( see paragraph CARDINAL above ) and that he had not contacted his family at any point after he had been captured by GPE forces , which strongly suggested that he had had no opportunity to do so .

The Government submitted that the applicant had not established an adequate justification for the delay in raising his complaints with the GPE authorities . The delay had imposed an inevitable impediment to the effective investigation of PERSON death . No adverse inferences should be drawn from the ORG ’s inability to provide an explanation for PERSON death in circumstances where the evidence provided a satisfying and convincing explanation of his arrest , detention and release .

The Government denied the allegation that PERSON was detained as a means of putting pressure on the applicant to surrender . They contended that the evidence submitted by the applicant in support of this claim was imprecise and hearsay and that such a purpose on the part of GPE authorities would have been inconsistent with PERSON subsequent release from GPE as soon as his status had been established as a civilian who did not pose a threat to security . Instead , they contended that it was reasonable for the NORP forces to suspect PERSON of being a combatant , since he was found , armed , on the roof of the house of a general of ORG , which house contained other firearms and a number of documents of intelligence value relating to local members of ORG ( see paragraph CARDINAL above ) . The Government further pointed out that , apart from the applicant ’s witness statement , there was no independent evidence of the cause of death because this information had not been entered on the death certificate ( see paragraph CARDINAL above ) . In any event , they emphasised that PERSON was QUANTITY from GPE , in an area that had never been occupied by NORP forces , and that the AK-CARDINAL machine gun was not a weapon used by NORP forces .

At the outset , the ORG recalls that the domestic proceedings were dismissed on the ground that the applicant ’s brother did not fall within the jurisdiction of GPE at any material time ( see paragraph CARDINAL above ) . It was not therefore necessary for the national courts to establish the facts in any detail . The ORG is generally sensitive to the subsidiary nature of its role and cautious in taking on the role of a first - instance tribunal of fact ( see PERSON v. GPE DATE . ) , no . CARDINAL , DATE ) . However , in the present circumstances it is unavoidable that it must make some findings of fact of its own on the basis of the evidence before it .

In cases in which there are conflicting accounts of events , the ORG is inevitably confronted when establishing the facts with the same difficulties as those faced by any first - instance court . It reiterates that , in assessing evidence , it has adopted the standard of proof “ beyond reasonable doubt ” . However , it has never been its purpose to borrow the approach of the national legal systems that use that standard . Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the LAW . The specificity of its task under LAW to ensure the observance by GPE of their engagement to secure the fundamental rights enshrined in the Convention – conditions the ORG ’s approach to the issues of evidence and proof . In the proceedings before it , there are no procedural barriers to the admissibility of evidence or pre - determined formulae for its assessment . It adopts the conclusions that are , in its view , supported by the free evaluation of all evidence , including such inferences as may flow from the facts and the parties’ submissions . According to its established case - law , proof may follow from the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact . Moreover , the level of persuasion necessary for reaching a particular conclusion and , in this connection , the distribution of the burden of proof , are intrinsically linked to the specificity of the facts , the nature of the allegation made and the Convention right at stake . ORG is also attentive to the seriousness that attaches to a ruling that a ORG has violated fundamental rights ( see GPE v. “ the former GPE ” [ ORG ] , no . CARDINAL , § CARDINAL , ECHR DATE ) .

Furthermore , it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio ( the principle , that is , that the burden of proof lies on the person making the allegation in question ) . The ORG reiterates its case - law under LAW and CARDINAL of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities , as in the case of persons under their control in custody , strong presumptions of fact will arise in respect of injuries and death occurring during that detention . The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation . In the absence of such explanation the ORG can draw inferences which may be unfavourable for the respondent Government . The ORG has already found that these considerations apply to disappearances examined under LAW , where , although it has not been proved that a person has been taken into custody by the authorities , it is possible to establish that he or she was officially summoned by the authorities , entered a place under their control and has not been seen since . In such circumstances , the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the LOC and to show that the person concerned was not detained by the authorities , but left the LOC without subsequently being deprived of his or her liberty . Furthermore , the ORG reiterates that , again in the context of a complaint under LAW , it has required proof in the form of concordant inferences before the burden of proof is shifted to the respondent Government ( see PERSON , cited above , § § QUANTITY - CARDINAL ) .

It is not in dispute in the present case that the applicant ’s brother was captured by GPE forces on DATE , subsequently detained at GPE and that he died shortly before his body was found in GPE on DATE . The disagreement over the facts centres on CARDINAL issues : first , whether PERSON was arrested and detained as a means of exerting pressure on the applicant to surrender himself and , secondly , in what circumstances PERSON left GPE . In addition , since the applicant alleges that PERSON body had marks of ill - treatment on it , the question arises whether he was ill - treated while in detention .

As to the first point , the ORG notes that the only evidence before it which supports the claim that PERSON was taken into detention in an attempt to force the applicant to surrender himself are the CARDINAL statements made by the applicant and the note of a telephone interview with the applicant ’s neighbour , both prepared for the purposes of the domestic proceedings ( see paragraphs CARDINAL above ) . In the applicant ’s first statement he alleged that his sisters had been told by the NORP military authority that PERSON would not be released until the applicant gave himself up . In the second statement , the applicant claimed that this information was given to his neighbour and his friend . In neither of the applicant ’s statements , nor that of his neighbour , Mr PERSON , is the representative of the GPE military who made the alleged assertion identified , by name or rank . Given the lack of precision , the hearsay nature of this evidence and the internal inconsistencies in the applicant ’s statements , the ORG does not find the evidence in support of the applicant ’s claim to be strong .

For their part , the Government were not able to present the ORG with any witness evidence relating to PERSON capture . However , they provided the ORG with the operational log of ORG which was created contemporaneously with the events in question ( see paragraph CARDINAL above ) . It records that , when NORP forces arrived at the house , PERSON was positioned on the roof , armed with an ORG machine gun and that other firearms and documents of intelligence value were found in the house . In addition , the Government provided records of interviews at FAC with PERSON and screen shots of entries relating to him on the APCARDINAL-Ryan database ( see , respectively , paragraphs CARDINAL and CARDINAL , DATE and DATE above ) . The ORG has no grounds on which to question the authenticity of these records . They show that PERSON was registered at GPE on DATE , taken to the ORG compound at CARDINAL on DATE and released to the civilian holding area of GPE on DATE at TIME local time . The computer records further show that he was questioned once on DATE CARDINAL local time and again on DATE at TIME local time . Records of both interviews have been provided to ORG . They show that PERSON identity as the applicant ’s brother was known and that it was established in the course of questioning that he had no personal involvement with ORG or ORG .

In the ORG ’s view , the capture and questioning records are consistent with the ORG ’s submission that PERSON was captured as a suspected combatant or a civilian posing a threat to security . This view is supported by other evidence which tends to show that PERSON PERSON may well have been armed with , or at least in the possession of , an AK-CARDINAL machine gun at the moment of his capture , namely the applicant ’s assertion that his younger brother had been left to protect the family home ( see paragraph CARDINAL above ) and PERSON reported explanation , during his interrogation by NORP agents , of the presence of the weapon as being for personal protection ( see paragraph CARDINAL above ) . The GPE records further indicate that he was cleared for release as soon as it had been established that he was a civilian who did not pose a threat to security .

The ORG accepts that PERSON capture was linked to his relationship with his brother , but only to the extent that the NORP forces , having been made aware of the relationship by PERSON himself and finding PERSON armed at the moment of capture ( see paragraph CARDINAL above ) , may have suspected that he also was involved with ORG and ORG . ORG does not find that the evidence supports the claim that PERSON was taken into custody to be held until the applicant should surrender . If that had been the intention of the GPE forces , he would not have been cleared for release immediately after the second interview and TIME after his admission to GPE ( see paragraph CARDINAL above ) .

As regards the date and place of PERSON release , the principal evidence consists of entries from PERSON ( see paragraph CARDINAL above ) . CARDINAL entry made on CARDINAL DATE recorded that PERSON had been released on CARDINAL DATE , by coach , to PERSON , on the ground of the “ End of Hostilities ” . Another entry on CARDINAL DATE found that PERSON PERSON was not present in the Camp when a full check of detainees was made . The ORG considers , on the basis of these entries , taken together with the decision made following the second screening interview not to continue to detain PERSON , that he was in all probability released early in DATE . This view is further supported by the evidence provided by the Government concerning the policy decision taken by GPE forces to release all detainees prior to or immediately following the cessation of hostilities announced on DATE , save those suspected of criminal offences or of activities posing a risk to security ( see paragraph CARDINAL above ) . As to the place of release , the ORG notes that GPE was situated QUANTITY from Umm PERSON . Although the main text of the relevant military order relating to the release of detainees from GPE did not list PERSON as a drop - off point ( listing CARDINAL towns to the north of the FAC ) , the annex to the order did describe Umm PERSON as a release area . It is impossible to be certain in the absence of more conclusive evidence , but given the town ’s proximity to the FAC , its mention in the annex , the GPE policy of releasing detainees following the end of hostilities and the computer entries concerning PERSON release , the ORG finds that it is probable that PERSON was released in or near Umm PERSON on DATE .

The ORG is of the view that , in this case , since the evidence concerning PERSON detention and release was , for the most part , accessible only to the Government , the onus is on them to provide a plausible and satisfactory explanation as to what happened to PERSON in the FAC and to show that he was released and that the release followed a safe procedure ( see paragraph CARDINAL above ) . The computer records show that by CARDINAL DATE GPE had captured and processed CARDINAL detainees in GPE since the start of hostilities and had released all but CARDINAL ( see paragraph CARDINAL above ) . In the light of the time that had elapsed before the applicant lodged his claim and the large number of GPE detainees that were released from GPE DATE and DATE , it is unsurprising that no eye witness able to remember PERSON release has been traced . In the circumstances of the present case , the ORG finds that the evidence referred to above is sufficient to satisfy the burden of proof on the Government .

Finally , there is no evidence before the ORG to suggest that PERSON was ill - treated while in detention . The interview records show that he was questioned on CARDINAL occasions , shortly after having been admitted to the FAC , and found to be a civilian , of no intelligence value and not posing any threat to security . The witness statement submitted by the applicant , of PERSON , who claimed to have seen PERSON in the civilian holding area in GPE in the period after he was questioned and before he was released , makes no mention of any sign of injury on PERSON or any complaint by him of ill - treatment . Moreover , apart from the applicant ’s witness statement , there is no evidence before the ORG as to the cause of PERSON death or the presence of marks of ill - treatment on his body , since the death certificate contains no information on either point . Assuming the applicant ’s description of his brother ’s body to be accurate , the lapse of DATE between PERSON release and his death does not support the view that his injuries were caused during his time in detention .

Having established the facts of the case , the ORG must next examine the applicant ’s complaints under the Convention .


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

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

The NORP Government ( “ the Government ” ) were represented by their Agent , PERSON of ORG . The applicant was represented by PERSON , lawyer practising in GPE .

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

On DATE at TIME the applicant was stopped by the police during a routine traffic check . He was arrested , as there was an arrest warrant pending against him in the context of criminal proceedings concerning , apparently , a minor case of fraud . During the arrest he informed the officers that he suffered from rheumatoid arthritis for which he took medication . He was taken to hospital for a check - up . The results confirmed that he suffered from the condition . The doctor examining him did not find it necessary to prescribe any medication .

The applicant was subsequently taken to a police station , where he spent TIME in a cell . He was given no medication . On DATE he was transferred to FAC .

His requests to be allowed to take painkillers were refused . He was told that he would be examined by the prison doctor and put in a cell .

On TIME , at TIME , the applicant fell off his bed and could not get up . The prison guard called by his cellmate did not enter the cell , but ordered him to help the applicant climb back onto the bed , which the cellmate did . Shortly afterwards the applicant fell off the bed again . He remained on the floor until TIME .

At TIME the applicant could not get up and had difficulty moving . He was taken to see the prison doctor , who diagnosed stroke . It was established that he suffered from rheumatoid arthritis and type CARDINAL diabetes . The applicant was then taken to a nearby hospital for treatment .

The applicant had partial paralysis in CARDINAL of his arms and legs . On DATE he lodged a compensation claim with ORG . He claimed CARDINAL NORP zlotys ( ORG ) in respect of alleged pecuniary and non - pecuniary damage on account of the fact that he had been left permanently disabled as a result of the stroke , and ORG CARDINAL as reimbursement of his treatment costs . The applicant argued that the conduct of the prison authorities after his arrest on DATE had caused his health to deteriorate and left him unable to work . He referred to the refusal of the prison guards to give him anti - inflammatory drugs and painkillers for his rheumatoid arthritis . He further submitted that the prison guards had failed to provide him with any medical assistance during the night in question . TIME had passed between the incident and him receiving medical care , which was only offered to him in the morning . He argued that this delay had contributed to the seriousness of his condition . Had he been given assistance earlier , his condition would not have become so serious .

On an unspecified later date the applicant was exempted from the obligation to pay court fees and granted legal aid for the purposes of proceedings before the first- and second - instance courts .

In the course of the proceedings before the first - instance courts , experts in neurology , rheumatology and diabetology confirmed that the applicant suffered from rheumatoid arthritis , although it was noted that he had failed to submit any medical records concerning his treatment prior to the arrest . The rheumatologist stated that , even assuming that the applicant had been treated for the condition prior to his arrest , a DATE interruption in taking the relevant medication could not have caused a stroke . The expert further stated that left untreated , diabetes might have contributed to its occurrence . The neurologist stated that an earlier diagnosis of the stroke could have limited the damage to the applicant ’s health .

NORP The applicant ’s claim was dismissed on DATE . In issuing its judgment ORG relied on the expert opinions . It noted that the applicant had failed to submit medical records showing that he had been in some form of treatment prior to his arrest . The court found no causal link between the conduct of the prison authorities after the applicant ’s arrest and the stroke he had subsequently suffered .

The applicant appealed . He argued , inter alia , that the court had erred by failing to examine whether there had been a causal link between the failure to assist him during TIME in question and the condition he had developed as a result of the stroke . He referred to the opinion given by the neurologist ( see paragraph CARDINAL above ) .

On DATE ORG quashed the contested judgment and remitted the case to the lower court . It considered that the first - instance court had failed to establish the facts of the case correctly , in particular as to the applicant ’s medical history prior to his arrest . It instructed the lower court to take additional evidence regarding this aspect of the case .

The case was examined again by ORG . During these proceedings the court ordered the applicant to restate his claim . The applicant ultimately claimed compensation in the amount of ORG CARDINAL . He referred to LAW . This amount covered LAW in respect of loss of income and ORG CARDINAL for the treatment costs he had borne after the accident . He further claimed a DATE pension of ORG , referring to LAW .

On DATE ORG dismissed the applicant ’s claim . It found that he had been arrested on DATE and placed in detention in FAC DATE , on DATE . He had felt unwell TIME and fell out of bed twice . After the first fall his cellmate had helped him up , as directed by the prison guard . When he had fallen out of bed for a second time , he was unable to get up , even with the assistance of his cellmate . He had remained on the floor until TIME . When TIME came a nurse had decided that he should be taken to the doctor , who had realised that the applicant had suffered a stroke during TIME . He had subsequently been taken to the neurological ward of a nearby hospital , where he had undergone treatment for DATE .

The court referred to medical expert opinions prepared for the purposes of the case . The experts had found that it had not been established that prior to his arrest the applicant had been regularly taking medication for his rheumatoid arthritis . However , even assuming that he had , the fact that he did not receive any after his arrest during DATE preceding his stroke had had no bearing on the stroke itself . It had probably been caused by his circulation problems , which could have also been caused by his previously undiagnosed and untreated diabetes .

ORG referred to the supplementary expert opinion of a neurologist , who observed that the refusal to provide the applicant with painkillers / anti - inflammatory drugs after his arrest could not have caused the stroke , even though it might have caused him some suffering . He was of the view that the stroke would likely have occurred even if the applicant had not been arrested , as deterioration of health leading to stroke was normally a long - term process .

The court had regard to evidence given by PERSON , the inmate who had shared a cell with the applicant on TIME CARDINAL DATE . He testified that when the applicant had fallen off the bed , no medical assistance had been given to him . The court observed that leaving the applicant in the cell until TIME without any help from the prison guards was inappropriate . However , it was of the view that this failure was of no relevance to the applicant ’s compensation claim , as the stroke had most probably been caused by the applicant ’s pre - existing condition prior to his arrest . Hence , even the fact that no medical assistance had been given to him during the night in question , could not be regarded as giving rise to the ORG ’s liability in tort in respect of the obvious damage to his health caused by the stroke .

The court observed that the applicant had essentially relied on the refusal of the police officers and prison guards to give him medication during his arrest and afterwards . In the absence of a demonstrated causal link between the refusals to give the applicant medication and his stroke on DATE , the statutory conditions for the ORG ’s liability in tort had not been met .

NORP The applicant appealed . He complained , inter alia , that the firstinstance court had failed to examine the issues crucial to the case . In particular , the court had failed to address the shortcomings of the medical attention given to the applicant during the critical night . He referred again to the fact that the prison authorities did not do anything to help him and that he remained on the cell floor from TIME He submitted that that fact had had an impact on the development of his condition and that the failure to give him proper and timely medical assistance had resulted in subsequent serious damage to his health . He referred to a statement made by CARDINAL of the expert witnesses who had confirmed that the lack of such prompt attention resulted in the scope of that damage .

On DATE ORG dismissed the applicant ’s appeal and upheld the judgment . It fully shared the findings of the first - instance court and its legal assessment of the case . Under the applicable law , the applicant ’s legal aid expired on DATE .

The applicant did not lodge a cassation appeal ( appeal on points of law ) against the appellate court ’s judgment .

NORP In DATE the social insurance authorities certified the applicant was suffering from a serious and permanent disability , in need of assistance in everyday life and unable to work . He received no income apart from disability benefit . He was not entitled to receive a pension because , as he was self - employed prior to his arrest , he had not been paying social insurance contributions .

Article CARDINAL of the DATE LAW reads :

“ CARDINAL . After promulgation thereof in ORG ( PERSON ) , a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly , unless its application depends on the enactment of a statute .

An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement can not be reconciled with the provisions of such statutes .

If an agreement , ratified by GPE , establishing an international organization so provides , the laws established by it shall be applied directly and have precedence in the event of a conflict of laws . ”

On DATE amendments to LAW , adopted on DATE ( LOC o zmianie ustawy PERSON postępowania cywilnego oraz ustawy Prawo o ustroju sądów powszechnych ) , entered into force .

Articles CARDINAL ( CARDINAL ) § CARDINAL and CARDINAL ( CARDINAL ) LAW of the ORG provide that a party to civil proceedings can lodge a cassation appeal ( appeal on points of law ) with ORG against a final judicial decision on the merits of a case given by a second - instance court within DATE of the date of service of that decision on the party together with its written grounds .

Pursuant to LAW must be represented before ORG by an advocate or a legal adviser . Cassation appeals not lodged by an advocate or a legal adviser must be rejected .

Pursuant to LAW persons exempted from paying court fees may request legal aid . Under LAW legal aid expires when a second - instance judgment becomes valid in law ( prawomocny ) . A new application for legal aid must be lodged for the purposes of subsequent proceedings before ORG .

Under LAW ( CARDINAL ) LAW of the ORG a cassation appeal is available in cases concerning pecuniary rights if the value of the dispute exceeds ORG CARDINAL .

Under LAW ( CARDINAL ) LAW of the ORG a cassation appeal may be based on the following grounds :

( CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

( CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case .

Under LAW ( CARDINAL ) LAW of the ORG the ORG shall agree to entertain a cassation appeal if :

( a ) a significant legal issue is involved in the case ;

( b ) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in judicial practice ;

( c ) the proceedings have been invalid in law ; or

( d ) the cassation appeal is manifestly well - founded .

Pursuant to LAW , having allowed a cassation appeal , can quash the challenged judgment in its entirety or in part and remit the case for re - examination .

Pursuant to Articles DATE and CARDINAL of the ORG , in cases concerning pecuniary claims , the amount stated by the claimant shall be regarded as the value of the dispute . If a number of claims are made in the same proceedings , the value of the dispute is the total amount of all claims . Under LAW ORG , in cases concerning claims for periodical payments , the value of the dispute is equal to the cumulative DATE value of those payments .

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . A party to pending proceedings may ask for the proceedings to be expedited and/or just satisfaction for their unreasonable length under LAW read in conjunction with section CARDINAL ) of LAW . The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decisions in the cases of ORG v. GPE ( no . CARDINAL ( dec . ) , § § DATE , ORG ) and NORP v. GPE ( no . CARDINAL ( dec . ) , ORG CARDINALVIII ) , and in its judgment in the case of ORG v. GPE ( no . CARDINAL , § § CARDINAL , ECHR CARDINAL-V ) .


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

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in ORG .

On DATE ORG ( “ the ORG ” ) ordered the ORG branch of the “ ORG ( “ the debtor ” ) , a predominantly socially - owned bank , to reinstate the applicant and to pay her outstanding salary and all work - related benefits for the period following her unlawful dismissal . That judgment became final on DATE .

On an unspecified date , the applicant filed a request for the enforcement of the above judgment . On DATE ORG issued a writ of execution ( rešenje o izvršenju ) .

On DATE the applicant was reinstated . However , as the debtor refused to pay the outstanding judgment debt , the applicant , on an unspecified date , filed a new request for the enforcement .

On DATE , on the basis of a financial expert ’s analysis , ORG ordered the enforcement by debtor account transfer in the total amount of MONEY ( ORG ) in respect of salary arrears and all work - related benefits , for the period from DATE until DATE , together with statutory interest and ORG CARDINAL for legal costs .

On DATE the applicant requested the court to change the means of enforcement as it appeared that there were no funds in the debtor ’s account . On DATE ORG ordered the enforcement by auctioning of the debtor ’s specified movable assets .

On DATE the applicant obtained a pledge ( zalog ) over certain movable assets which were seized from the debtor ( CARDINAL vehicles and some technical equipment ) .

On DATE , ORG ( “ the ORG ” ) instituted liquidation proceedings against the debtor .

On DATE the enforcement proceedings were discontinued in view of the pending liquidation proceedings . On DATE the applicant reported her claims to the liquidation council ( likvidaciono veće ) .

On several occasions thereafter , the applicant petitioned the court to continue with the enforcement and to schedule a public auction for the sale of the pledged assets , arguing that their value was decreasing due to the passage of time and that she had to bear the maintenance costs . On DATE she submitted the same request to the liquidation administrator ( likvidacioni upravnik ) .

ORG held CARDINAL hearings concerning the applicant ’s requests , on DATE and DATE , but it would appear that no decision was issued .

In the meantime , on DATE ORG appointed the ORG for Deposits as a liquidation administrator . On DATE ORG terminated the liquidation proceedings and opened bankruptcy proceedings against the debtor .

On DATE ORG rejected the applicant ’s claims against the debtor ( paragraph CARDINAL above ) and instructed her to initiate a new set of civil proceedings . On DATE the GPE High Commercial Court ( “ the High Commercial Court ” ) upheld that decision .

The applicant did not initiate a new set of civil proceedings as instructed .

It would appear that bankruptcy proceedings are still pending and that the debtor is still predominantly socially - owned .

The relevant domestic law is set out in the ORG ’s judgment of NORP GPE and Others v. GPE , nos . CARDINAL et al . , DATE .


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

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

On DATE , in connection with a police investigation into the alleged activities of a drug - trafficking operation , large quantities of heroin were seized in PERSON ( a suburb of GPE ) and a number of suspects were arrested .

On DATE a police officer who had not been involved in that operation told his superior that certain police officers , including the applicant , had been offered money in exchange for leaving one of the suspects out of the investigation . He further alleged that some police officers in the unit had each received the sum of CARDINAL ( ORG ) from the applicant in return for their turning a blind eye . The police officer ’s superior prepared a report to that effect and initiated a disciplinary investigation concerning the allegations of bribery .

On the basis of the findings of the investigation concerning those allegations , the investigators in charge of the disciplinary investigation lodged a complaint with a public prosecutor and asked for a criminal investigation to be instigated against those police officers , including the applicant .

Accordingly , on DATE the applicant was charged with bribery . A criminal trial was opened in ORG .

After hearing witnesses and assessing the evidence before it , ORG held that the accusations concerning the applicant and the co - accused did not go beyond hearsay and that there was nothing in the case file that proved the accused ORG guilt . It therefore acquitted the applicant and his co - accused of bribery on DATE .

On DATE , on the basis of the findings of the disciplinary investigation , CARDINAL sanctions were imposed on the applicant which deferred his advancement to a higher rank for DATE and of DATE respectively . The relevant parts of the decision read :

“ Notwithstanding the fact that the charges against the accused police officers were not proved and that they have consequently been acquitted in the criminal proceedings and that the legal constituents of the crime of bribery were lacking , under section CARDINAL of LAW Act the opening of criminal proceedings against a civil servant can not delay disciplinary proceedings , which can be conducted in parallel with such proceedings . Furthermore , exoneration of criminal liability does not prevent the imposition of disciplinary sanctions . In the light of the foregoing , bearing in mind the fact that the report in question was signed by the supervising police officer and CARDINAL senior officers and that the statement of ORG confirming the veracity of certain aspects of the allegations and the statement of [ police officer ] ORG confirming the statement of the latter ... [ the disciplinary board ] considers that the applicant ’s conduct constituted the disciplinary offence in question . Notwithstanding the fact that the misconduct in question can not be characterised as criminal , it was still inappropriate and was of such a nature as to diminish the respect and the trust associated with the functions of a police officer ... Therefore , the applicant ’s conduct amounts to “ acts and conduct that discredit the respect and trust associated with the official function of a police officer ” , ... as well as to “ neglect of duty ” in so far as the applicant left CARDINAL suspect out of the investigation , despite there being strong suspicions [ that he had been involved ] ... ”

On DATE the applicant lodged a claim against ORG with ORG , challenging the disciplinary sanctions imposed on him .

On DATE the court set aside both disciplinary punishments , holding that the findings of the investigation giving rise to the impugned disciplinary action had contained no proof beyond hearsay and accordingly concluding that the allegations were unfounded .

The Office of the GPE Governor lodged an appeal with ORG against the decision of ORG ; the appeal was dismissed and the decision of DATE was upheld and became final on DATE .

Meanwhile , on DATE the applicant underwent an appraisal of his work . The appraisal was carried out by his immediate superior and signed by a senior police chief . He was given an unsatisfactory score of CARDINAL out of CARDINAL and received a disciplinary warning to this effect on DATE . The warning briefly stated that the applicant ’s appraisal score was unsatisfactory and that unless he improved his score he could be subject to the relevant provisions of the Regulation on ORG ( PERSON Memurları Sicil Yönetmeliği ) .

On DATE the applicant lodged a complaint with ORG , contesting his poor appraisal score and requesting clarification of the circumstances of his appraisal .

On DATE the applicant received a letter stating that his complaint had been examined on the basis of the documents relating to his appraisal and that his appraisal had been conducted in accordance with the law and the applicable procedure .

On DATE , the applicant instituted administrative proceedings before ORG , requesting the court to stay and to set aside the appraisal decision of DATE . He argued that his superiors had only taken into account the allegations of bribery against him in connection with the narcotics operation carried out in DATE and had failed to respect his right to the presumption of innocence given that the criminal proceedings concerning the same allegations were still pending . In that respect , he submitted that his appraisal had been biased . He further submitted that , owing to the fact that his appraisal had been poor , he had been transferred to a remote city and was therefore prevented from continuing his master ’s studies at ORG in GPE .

During the course of the proceedings the applicant submitted to ORG the judgment of DATE acquitting him of the charges of bribery .

During the course of the proceedings the court requested from ORG the file regarding the applicant ’s appraisal , as well as his appraisal records over DATE . The applicant ’s previous appraisal in respect of DATE had been excellent , with a score of CARDINAL . No appraisals had been carried out in DATE and DATE owing to the fact that the applicant had taken unpaid leave . Lastly , for DATE , the applicant ’s appraisal score had been mediocre , with a score of CARDINAL .

On DATE the court dismissed the applicant ’s request and held that his appraisal had been carried out in accordance with the law and had no appearance of arbitrariness . The relevant parts of the judgment read :

“ Appraisal exercises are carried out DATE to assess a civil servant ’s competence , skills , output and his or her professional conduct . On the one hand , an appraisal report necessarily contains observations that are based on the subjective impressions of the appraiser DATE which need not be substantiated by concrete evidence . In this last respect , however , if an appraisal report contains negative feedback in terms of a civil servant ’s productivity , competence and work discipline , these points need to be substantiated with reasons ... On the other hand , all acts of the ORG are subject to judicial review ... As a safeguard against arbitrariness , appraisal reports need to contain reasons for their conclusions ... On the basis of the examination of the case file , it is understood that the applicant was implicated in a disciplinary investigation involving allegations of bribery . Following the disciplinary investigation he received CARDINAL deferments of advancement to a higher rank of durations of DATE and DATE , respectively . Due to the fact that the applicant had received disciplinary sanctions , his appraisal report indicated that the applicant had demonstrated a tendency to put his own interests first [ tavassuta düşkünlük ] .

Therefore , the court finds it established that the ... disciplinary misconduct attributed to the applicant was proved during the course of the disciplinary investigation and that the poor appraisal based on the perception of his tendency to put his own interests first is not incompatible with the law . ”

The applicant appealed against the decision to ORG , reiterating the arguments he had raised before ORG and further submitting that ORG had found a very similar appraisal report to be incompatible with the law in the case of a colleague who had also been subject to the same disciplinary proceedings concerning the narcotics operation of DATE . In the context of those other proceedings concerning the applicant ’s colleague , ORG , acting as the court of first - instance , had held on DATE that :

“ The appraisal system is the legal basis on which a civil servant receives a promotion , demotion or salary increase , or obtains a transfer to a different city or to a different function ... In consideration of the significance of the legal consequences of the appraisal and having regard to the legal nature of the appraisal report , the reasons set out in the appraisal report must clearly explain the conclusions reached and also support such conclusions with concrete background information and documents .

In the circumstances of the present case , the court had regard to the plaintiff ’s appraisal reports for DATE and noted that his appraisal reports concerning DATE had consistently been excellent . However , the ‘ mediocre’ appraisal score given to the plaintiff for DATE was not substantiated with reasons or documents and contained no explanation as to why the applicant had gone from excellent to mediocre . On the basis of the foregoing , the court sets aside the appraisal report for not being compatible with the law . ”

On DATE ORG rejected the applicant ’s appeal as ill - founded and found the impugned decision to be in conformity with the law and the applicable procedure . CARDINAL judge ( out of CARDINAL ) expressed a dissenting opinion . She stated , in particular , the following :

“ The disciplinary sanction received by the applicant does not in itself merit a poor score in respect of all the areas assessed in the appraisal report . For this reason , I do not agree with the majority that the appraisal was in total conformity with the law . ”

NORP The applicant lodged an appeal , seeking the rectification of the decision of DATE . In its decision of CARDINAL DATE , served on the applicant on CARDINAL DATE , ORG rejected that appeal .

Section CARDINAL of the Disciplinary Regulation of the Security Forces ( PERSON ) , in so far as relevant , provided as follows :

“ Disciplinary measures shall comprise CARDINAL of the following :

D ) Lengthy deferment of advancement : advancement to a higher grade may be deferred for a period of DATE , QUANTITY months . ”

Section CARDINAL of the Disciplinary Regulation of the Security Forces , in so far as relevant , set out the possible grounds for a police officer ’s dismissal from the police force as follows :

“ The following acts , procedures , behaviour and conduct incur expulsion from the profession ...

ORG , robbery , fraud , extortion , bribery , embezzlement , defalcation , rape , sexual assault , forgery , counterfeiting , intentional killing or attempting any of these offences , abuse of trust , bearing false witness , perjury , false accusation , slander ... ”

Section CARDINAL of the Disciplinary Regulation of the Security Forces , in so far as relevant , defined the types of misconduct sanctioned by a lengthy deferment of advancement as follows :

“ B ) Deferment for DATE

DATE that is incompatible with the reputation and trust inherent in the official function .

D ) Deferment for DATE

DATE Neglecting one ’s duty by failing to take the necessary actions against a suspect ... ”

Section CARDINAL of the former Regulation on ORG ( PERSON Memurları Sicil Yönetmeliği ) provided , in so far as relevant , as follows :

“ Overall assessment of ORG Conduct :

The appraiser shall take into consideration

a ) Appearance ( professional attire ) ;

b ) ORG and his or her ability to learn ;

c ) Ability to persevere , the desire to excel , [ and ] the ability to be discreet ;

d ) [ A]ddictions such as gambling and alcohol consumption that are not compatible with civil service ;

e ) Personality traits such as reliability , preoccupation with one ’s own self - interest , honesty , tendency to gossip [ or feel ] jealousy ... ”

Section CARDINAL of the former Regulation on ORG provided , in so far as relevant , as follows :

“ A civil servant who receives CARDINAL poor appraisal scores in succession shall be assigned to a different appraisal unit and in the event that he [ again ] receives a poor score , he shall be dismissed from the profession ... ”


Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant , PERSON ORG , is a NORP private company . It is represented before the ORG by PERSON , a lawyer practising in GPE .

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

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

In DATE the applicant company entered into a contract with a NORP joint - stock company , P. Under the contract , ORG was to carry out repair work on a vessel owned by the applicant company . The work was to be done in a NORP port . All disputes arising out of this contract were to be settled by arbitration in ORG at ORG in GPE . ORG , a senior executive of P. , was in charge of all customs formalities relating to the vessel ’s temporary stay in GPE .

On DATE P. filled in a customs declaration on a DATE temporary stay of the vessel on the customs territory of GPE . The vessel had to be removed from the customs territory of GPE by DATE .

On DATE a customs declaration on removal of the vessel was signed but the vessel was not removed .

On DATE , the customs service seized the vessel because of a violation of customs regulations . It was noted in the seizure act that the vessel ’s customs value was UAH CARDINAL ( at the material time around EUR CARDINAL ) .

By a decision of DATE , ORG terminated the administrative offence proceedings against I. as time - barred but ordered confiscation of the vessel as an object with which customs regulations were violated . I. did not attend the court hearing and submitted a request that the case be examined in his absence . The court found that the vessel should have been removed from the customs territory of GPE by DATE . The applicant company ’s representatives stated that the weather conditions had been unfavourable so the vessel had not left the customs territory of GPE and they had requested an extension of its stay in the NORP port . The court found that the weather conditions CARDINAL DATE had been fine but the vessel had not been removed . There was also no evidence that an application for extension of its temporary stay had been lodged . The decision of DATE was final and at the material time it was not subject to appeal .

On DATE ORG put the vessel on the seizure list and prohibited it to leave the port .

On DATE the applicant company instituted proceedings against the bailiffs . It complained that on DATE a bailiff PERSON had arrived on the vessel in question but had refused to produce any enforcement documents . The applicant company stated that in its decision of DATE ORG had failed to specify that it was the applicant company ’s vessel that had to be confiscated . It further stated that the enforcement proceedings had been instituted unlawfully and that the applicant company had not been mentioned as a party of the enforcement proceedings . The applicant company referred to LAW On Property ” , which provided for general protection of property rights , and requested the court “ to stop actions which breach the company ’s property rights ” . Later it amended its claims and requested , without any particular specification , that its property rights over the vessel be recognised , that the vessel be removed from the seizure list and the use of the vessel not be hindered .

On DATE ORG rejected the applicant company ’s claim since it ought to have been considered by a court of general jurisdiction . On DATE ORG of Appeal quashed that decision and remitted the case for fresh consideration . The court noted that the applicant requested “ protection of property rights ” and an alleged breach of such rights consisted in that on DATE the bailiffs visited the vessel without “ any legal grounds ” . Since the applicant was not a party to the enforcement proceedings , it had a right to lodge a claim for its property rights protection under LAW in a commercial court .

On DATE ORG rejected the applicant company ’s claim . It held that , under LAW of LAW , a person who stated that the seized property belonged to him or her , could lodge a claim with the court asking for his or her rights over the property to be recognised and for the property to be excluded from the seizure list . The creditor and the debtor could be defendants in such a case . In the present case the vessel was to be confiscated by the ORG . The bailiffs’ service was not a proper defendant in this case .

The applicant company appealed stating that the bailiffs’ actions were unlawful . The applicant company reiterated that the court decision had not specified it as a party to the enforcement proceedings .

On DATE ORG of Appeal quashed that decision and found for the applicant company . On its own initiative the court replaced the defendant in the case by the DATE ORG . The court further held that the vessel was owned by the applicant company and since the latter had not breached customs regulations there had been no legal ground for the vessel ’s confiscation . The court further noted that according to LAW in case of impossibility to confiscate the object of the breach of customs rules a person responsible for such breach should pay the cost of such object and that “ the analysis of the existing legal provisions LOC ] the court to conclude that only an object owned by an offender could be confiscated ” .

By letters of CARDINAL and CARDINAL DATE ORG of GPE informed ORG in GPE that the enforcement proceedings in the case had been stayed following the decision of DATE of FAC . No copy of this decision was submitted by the parties .

On DATE ORG of GPE quashed the decision of CARDINAL DATE and upheld the decision of DATE . The court held that the applicant company ’s property right to the vessel had never been disputed , since the vessel had been confiscated not as property of ORG , but as the object with which customs regulations had been violated . The confiscation of the vessel was carried out in connection with proceedings relating to an administrative offence . By finding for the applicant company ORG had actually reviewed the decision of DATE , which was beyond its competence .

The applicant company appealed stating that by adopting the decision of DATE ORG had breached the law and the Convention provisions .

On DATE ORG of GPE refused a request by the applicant company for leave to appeal on points of law .

The applicant company sought in the commercial court to terminate the enforcement proceedings but by a decision of DATE upheld by higher courts this request was rejected as falling outside the commercial court ’s jurisdiction .

According to the applicant company , the vessel was sold at an auction to an unknown person .

The applicant company did not institute any proceedings , either against the P. company or ORG , seeking compensation for the damage incurred .

LAW , in force at the material time , provided that decisions imposing an administrative sanction could be appealed , except for decisions given by the first - instance court . The latter were final and were not subject to the ordinary appeal procedure .

According to LAW , in force at the material time , the bailiffs were in charge of enforcement of the court ’s decisions on confiscation of property in cases on breach of customs regulations . In case of impossibility of confiscation the offender had to pay its value . According to LAW an item could be confiscated only if it belonged to an offender , “ unless otherwise provided for by the laws of GPE ” .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

András Sajó;Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

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

On DATE the prosecutor ’s office opened a criminal investigation in response to S. ’s complaint that CARDINAL policemen had extorted money from him by threatening to open a criminal case against him on charges of drug possession .

On DATE the investigator received information implicating the applicant in said crime . On DATE the investigating authorities established where the applicant was officially registered as living .

On DATE the applicant was charged in absentia with kidnapping ( Article CARDINAL of LAW ) and extortion ( Article CARDINAL of LAW ) . Noting that the applicant might abscond or otherwise interfere with the administration of justice , the investigator considered that the applicant should sign an undertaking not to leave his place of residence and to abstain from improper behaviour .

On DATE the applicant ’s name was put on the list of wanted persons . It was not elucidated in the relevant decision whether any effort had been taken on the part of the investigating authorities to establish the applicant ’s whereabouts . On DATE the police informed the investigating authorities of the addresses where the applicant and his father were registered .

On DATE the investigating authorities established the applicant ’s temporary address .

On DATE the applicant voluntarily went to see the investigator . He was questioned and released on his own recognisance . The next interview was scheduled for DATE . On DATE the applicant duly appeared at the prosecutor ’s office where he was arrested . When questioned , he claimed that the authorities had had no grounds to put his name on the list of wanted persons . In particular , he submitted that the investigating authorities had failed to verify his whereabouts or to issue a request for him to appear for questioning .

NORP The following day , CARDINAL DATE , ORG of GPE authorised the applicant ’s pre - trial detention until DATE . In particular , the court noted as follows :

“ ... the court ... considers that , in view of the [ applicant ’s ] character and the nature of the charges , if released , he might again abscond or otherwise interfere with the administration of justice . [ The applicant ] is charged with offences entailing a custodial sentence in excess of DATE . As is apparent from the evidence submitted , he has absconded before and his name was put on the list of wanted persons . The court concludes that it is impossible to apply more lenient restrictions , such as release on bail .

The court considers that there were grounds for the [ applicant ’s ] arrest . It follows from the evidence submitted to the court that [ the applicant ] could have committed the crime he is charged with . As regards the fact that on DATE the applicant voluntarily appeared for questioning , the court does not consider it sufficient to dismiss the [ investigating authorities’ ] request for the [ applicant ] to be remanded in custody . [ The applicant ] did not deny that even though his name was on the list of wanted persons , he did not appear for [ questioning ] for DATE . ”

On DATE the applicant lodged an appeal against the court order of CARDINAL DATE . He addressed it to ORG . On an unspecified date ORG forwarded it to ORG for processing . According to the Government , on an unspecified date the President of ORG returned the statement of appeal to the applicant on the grounds that it had been lodged after the deadline . The applicant received the President ’s decision on DATE and asked ORG to renew the time allowed for appeal .

On DATE ORG extended the applicant ’s pre - trial detention until DATE . The court noted as follows :

“ When extending the [ applicant ’s ] pre - trial detention , the court has taken into account [ his ] character . Nevertheless , it does not discern any grounds to cancel or replace the preventative measure previously imposed on [ the applicant ] ... given that the circumstances underlying the [ applicant ’s ] detention pending trial have not altered . [ The applicant ] is charged with offences entailing a custodial sentence in excess of DATE . Regard being had to the seriousness of the charges and to the fact that he absconded and that his name was put on the list of wanted persons , the court is convinced that [ the applicant ] might abscond or otherwise interfere with the administration of justice .

The court dismisses as unsubstantiated the [ applicant ’s ] allegations that he was unfit for detention because of his state of health . There are no documents in the case file [ to the contrary ] . Furthermore , the court notes that all persons detained in a remand prison receive the necessary medical assistance as provided for in the applicable legislation . ”

According to the Government , on CARDINAL DATE ORG reset the time - limit for the applicant ’s appeal against the court order of DATE .

On DATE ORG upheld the decision of CARDINAL DATE on appeal .

On DATE the applicant ’s lawyer filed an additional statement of appeal against the court order of DATE .

On DATE ORG adjourned the hearing of the applicant ’s appeal against the court order of CARDINAL DATE owing to his lawyer ’s failure to appear . On DATE ORG held the hearing and upheld the decision of CARDINAL DATE on appeal .

On DATE ORG further extended the applicant ’s pre - trial detention until DATE noting as follows :

“ ... the court considers that there are no grounds justifying the lifting or changing of the restrictive measure imposed on [ the applicant ] ... in the court ’s view , the defence ’s request to release [ the applicant ] on bail will not have a restraining effect on the defendant as regards the possibility of him interfering with the administration of justice . Regard being had to the particular complexity of the case and to the scope of the pending investigation , the court considers the investigator ’s request to extend the [ applicant ’s ] pre - trial detention well - founded . Accordingly the court rejects the request for bail lodged by [ the applicant ] and his defence .

Regard being had to the above and the seriousness of the charges against [ the applicant ] , the court does not consider it possible to apply a restrictive measure other than to remand the accused in custody ... ”

On DATE ORG extended the applicant ’s pre - trial detention until DATE . The court reasoned as follows :

“ ... the grounds underlying the [ applicant ’s ] detention pending trial have not altered . [ He ] is charged with a grievous offence entailing a custodial sentence in excess of DATE ; he previously absconded and his name was put on the list of wanted persons ; he is not employed and does not have an official source of income ; he used to be a policeman and has relevant knowledge and experience ; he is privy to the personal data of the victim and a witness . The evidence , the circumstances and the [ applicant ’s ] character presented to the court lead it to believe that , if released , [ the applicant ] might abscond , continue criminal activities , threaten the victim and the witness , put pressure on them or otherwise interfere with the investigation of the case . ”

On DATE ORG of GPE fixed the trial for DATE . The applicant asked for release on bail in the amount of MONEY ( RUB ) to be paid by his cousin . The court further extended the pre - trial detention in respect of the applicant and the other defendant until DATE , noting as follows :

“ Defendant PERSON is charged with grievous offences . [ The applicant ] is charged with grievous offences . Accordingly , [ the court ] considers that there are grounds to believe that , if released , PERSON and [ the applicant ] might abscond or otherwise interfere with the proceedings . The court does not discern any circumstances justifying lifting or changing the restriction ’s ] request for release on bail as unsubstantiated . ”

On CARDINAL DATE ORG found the applicant guilty of extortion and sentenced him to CARDINAL years’ imprisonment . On DATE ORG upheld in substance the applicant ’s conviction on appeal but reduced his sentence to DATE and DATE .

On DATE the applicant was placed in remand prison no . ORG in GPE . He was held there until DATE except for CARDINAL period DATE when he underwent medical treatment in remand prison no . IZ-CARDINAL/CARDINAL .

The applicant was detained in cells CARDINAL . CARDINAL and ORG which measured QUANTITY by QUANTITY . The cell was equipped with CARDINAL bunk beds , a table , CARDINAL benches and a metal cabinet used for food storage . The toilet was located QUANTITY away from the living area of the cell and offered no privacy .

The applicant suffers from chronic gastritis and post - traumatic brain dysfunction . Because of his condition , he was eligible for a special food regime , which was allegedly not provided . His relatives sent him medicine and food while he was in detention .

In DATE the applicant underwent medical treatment in the hospital of remand prison no . IZ-CARDINAL/CARDINAL in GPE .

NORP In response to the applicant ’s complaint , the GPE City Ombudsman made an enquiry as to the medical care provided in the remand prison . The inquiry did not confirm the applicant ’s allegations that he had been refused due medical care . The applicant was informed accordingly on DATE .

The DATE ’s submissions as regards the conditions in which the applicant was transported may be summarised as follows :

The Government did not specify the type of compartment the applicant was placed in during the transfer to and from the court - house . According to the documents submitted , on CARDINAL DATE during the journey from the remand prison to the court - house , the applicant was placed in a single compartment with another inmate .

The Government submitted the following information as regards the measurements and capacity of the prison vans :

The vans were ventilated by an opening in the door and by vents in the compartments . They were equipped with heating and lighting . They were cleaned and disinfected DATE . The vans were in good working order at all times . During the journey , it was not possible for the inmates to use a toilet . They could use the toilet at the court - house , if necessary .

According to the photographs submitted by the ORG , each compartment was equipped with CARDINAL benches located along the longer walls and facing each other . There was no access to natural light . The Government also submitted excerpts from standards for service vehicles intended for the transport of suspects and defendants in criminal cases , which set forth that the seating space per person in the prison van should be CARDINAL by QUANTITY

According to the applicant , he was transported in a single - occupancy compartment only on CARDINAL occasions . For the rest of the time , he was transported in a collective compartment which held CARDINAL detainees and measured QUANTITY by QUANTITY by QUANTITY There were not enough seats for everyone and some people had to stand or sit on someone else ’s lap . During the winter the vans were not heated . The ceiling and the walls were covered with ice . The floor in the van was extremely dirty . It was covered with cigarette butts , food crumbs , plastic bottles and bags of urine . The natural ventilation of the van through the hatches was insufficient . All the detainees smoked in the van and the applicant was exposed to second - hand tobacco smoke . The light was off all the time .

On DATE of the trial , the applicant was placed in a holding cell at the court - house measuring CARDINAL by QUANTITY . It was , according to the applicant , dirty , poorly lit and unventilated . In DATE , the temperature did not exceed + CARDINAL The cell held CARDINAL or more detainees . There was no toilet in the cell . The applicant spent TIME in such conditions .