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

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

The applicant was born in DATE and lives in GPE .

In the period DATE and DATE the applicant was found to have addressed emails to C. , his former partner , stating , among other things :

“ ... It is this [ C. ] that I wish to see ; I do n’t want to meet the other one again . I gave up the possibility of keeping her at bay by any means ( such as pictures of her injecting drugs , pictures of her offering prostitution services or pictures of her masturbating ) , because I have so much respect for her that I did not want to spend TIME trying to pull off dirty tricks on her , naively believing that the second time I would be able to open her eyes to the truth . ...

You say that you are scared of me . Well , get rid of that fear finally ; otherwise we can not even be very good friends ...

I suggest we draw a line under the past , particularly the evil period , and turn over a new leaf . In the same spirit , I suggest not talking about the evil things ever again ; otherwise you will not be able to get rid of your fear ...

... Are we really only able to talk to each other when I yell at you or tie you up or abduct you in my car , or do I have to think up a similar dirty trick ? Do I have to become evil before you can hear me out and are willing to talk to me ? You are not going to believe me , but it hurt me that I had to lower myself to that level . ...

It ’s a pity that one has to abduct you or tie you up , in other words simply use means of physical restraint in order to make you listen and carefully think about and evaluate what they have told you . I would be happier if you could do so without such actions ...

... promise made in the car ...

Because I have not humiliated you either , although I had a good opportunity to do so . I could have taken pictures of you , forced you to make a porn movie and sent it to all those people in GPE . I could have forced you to sign whatever I wished for , and I know that you would forced yourself to sign whatever I wished and I know that you would have done it at that moment . Do not wonder about the things I am able to think about ; wonder about why I have not done so ...

I will tell her everything about what I have done to you as well as why I have done it ; I will give her your contact details , and maybe she can help us become closer ...

I told the psychologist everything about what I have done to you , ... how I was bad to you , including the threats I have recently made in order to make you hear me out . When I told her about how I tied you up , she replied that I must not do that to you ever again and that I should be glad that you have not turned me in ...

On DATE , it will be DATE since that last time I threatened you and intimidated you ...

... all my threats are really just my defensive response to various feelings of injustice ...

When you were at my place , I could have done whatever I wanted with you ; but I ’m not like that , it is hard to hurt you in any way because I love you ...

If you can not accept it , I will not do anything more than what I have repeated CARDINAL times when we made that agreement at DATE ...

I will do or pay someone to do something that will harm you . Ranging from pettiness to heavy force that would be in violation of the law ...

[ C. ] , I ’m slowly starting to realise that my feelings for you are heading towards freezing point and hatred is starting to prevail ... ”

On DATE made a statement about the applicant ’s threatening telephone calls and emails at the police station in GPE ( GPE ) . On DATE , upon police advice , she changed her telephone number and email address .

On DATE the GPE CARDINAL ORG ( obvodní státní zástupce ) received an anonymous criminal complaint containing allegations of the sexual abuse of children . The female informer indicated that a certain C. had confessed that she had participated in sexual abuse whilst working as an au pair in GPE .

In DATE several individuals including the applicant were questioned in connection with the criminal investigation into the criminal complaint .

On DATE C. ’s mother made a statement at the police station in GPE CARDINAL according to which the applicant had tied C. up in his apartment and had shown her a bag in which he intended to carry her away . She stated , in particular , that :

“ On DATE , my daughter called me , asking me whether I had time and that maybe I should sit down . She informed me that she had not been dating [ L. ] , as she had claimed the entire time she dated [ the applicant ] , but that instead she had been dating [ the applicant ] , who had allegedly threatened and was currently still threatening her with physical annihilation if she would not resume her relationship with him ; he had also demanded that [ C. ] continue to have sexual relations with him . She decided to tell me about the entire matter only after he had allegedly sent her an email with the words ... ‘ and do n’t forget that you have a family – mother , brother – back at home’ ... Given her experience of him , [ C. ] considers it very likely that this threat could be carried out by [ the applicant ] . Since that time she had changed her email address and phone number ; she also informed me that she had changed her place of residence in GPE because she did not want to have contact with him any more . In addition , my daughter informed me that she had also reported the entire matter in GPE , where she had been questioned about the matter after suffering a mental breakdown there . This condition of my daughter was caused by the actions of the [ applicant ] , who had continuously been sending her emails and threatening her . My daughter said that she had these emails at her disposal ...

In addition , I learned from my daughter that [ the applicant ] , during the period when he was communicating and was able to communicate with her , had told her that she could come back to him , that she was in no danger from him because he had started seeing a psychologist ... in order to reduce or eradicate his violent behaviour , which he was aware of and had been using against her DATE against [ C. ] ... ”

On DATE female friend PERSON stated that , in a letter of DATE , C. had confided in her about the forcible coercion by the applicant , which had taken place on DATE . She further stated that , at about the same time , C. had called her from GPE , telling her that the applicant had been menacing her and her family with threats to their lives . In addition , she said that the applicant had contacted her by SMS , by phone and by email . She submitted the letter to the police .

On DATE the police asked the Prague CARDINAL ORG to apply for an “ urgent or non - repeatable measure ” ( neodkladný nebo neopakovatelný úkon ) pursuant to LAW hereinafter “ the ORG ” ) , and DATE an interview with C. was conducted . The request included a very detailed justification explaining that the applicant had forcibly coerced C. in GPE as well as in GPE , where she had filed a criminal complaint . At the time of making that request , C. had been living and working in GPE but arrived back in GPE for the purpose of her interview on DATE . Her employment and the distance between the place of her employment and GPE , where she was interviewed , made it impossible for her to travel more often to GPE , where she did not feel safe anyway , given the prior events .

On DATE , a prosecutor at ORG asked ORG ( obvodní soud ) to secure the presence of a judge during C. ’s interview , which was to be carried out as an urgent and non - repeatable measure .

On DATE the police interviewed C. as a witness in the presence of a judge pursuant to LAW ORG . At that time , the applicant had not been charged and was therefore not present at the interview . C. stated at the outset that :

“ ... [ S]ince DATE I have been working as an au pair in GPE . ... I arrived in GPE on the basis of an agreement with the police authorities of [ GPE ] and upon the advice of my employer , ... , who is a police officer , after the actions of [ the applicant ] reached such an intensity that I started to be really scared . ”

She further stated that the applicant had not come to terms with the fact that she had broken off their intimate relationship . She described in detail the acts of intimidation conducted by him in the form of phone calls , SMS messages , emails , letters and verbal threats . She also stated that on DATE , TIME and TIME , she had been present in the applicant ’s flat , where he had tied her to the bed , partially undressed the lower part of her body , and threatened to drug her with heroin , to carry her out from the flat in a large bag and to hand her over to unspecified persons to be trafficked to GPE for QUANTITY ( EUR CARDINAL,CARDINAL ) unless she promised to resume their intimate relationship , which she had broken off on DATE . According to her , the applicant had threatened to take pornographic pictures of her or to record a porn movie with her , which he would then send to her employer in GPE and the company which had acted as intermediary in finding her a job in GPE . Furthermore , on DATE they had been in a car together and the applicant had threatened to throw C. into a snowdrift and drive off , or to kill both her and himself in a deliberate car accident . C. also stated that the applicant had searched through her mobile phone contacts to find the number of her female friend PERSON , whom he had contacted at DATE . C. wrote an explanatory letter to PERSON She had also phoned her mother and had confided in her about the intimidation by the applicant . C. also stated that the applicant was seeing a psychotherapist . As the intimidation continued , PERSON filed a criminal complaint at a police station in GPE on DATE .

She also stated :

“ Upon the advice of the police in GPE , on DATE I changed my mail address , after DATE I also changed the number of my mobile phone and at the advice of my employer , I have also the confidential employment that [ the applicant ] or his eventual messengers could not contact me . ...

I was asked to make comment on the email notice which was made anonymously at the GPE CARDINAL ORG on DATE at CARDINAL a.m .. ... I do not know any girl who would meet me in a club in GPE ; I do not know any such girl who would know the information about me , which were written in this denouncement . ... The information indicated in this denouncement corresponded to what [ the applicant ] knows about me , what I foolishly told him in the past . ”

At the end of the interview , C. submitted copies of her email exchanges with the applicant and a tape recording of his voice messages , and made available SMS messages on her mobile phone for transcription .

On DATE a judge at the Prague ORG ordered the compilation of a list of incoming and outgoing telephone calls from the applicant ’s mobile phone DATE and DATE . On DATE he ordered the compilation of a list of communications executed from CARDINAL mail - boxes between DATE and DATE and DATE and DATE , respectively . On DATE the judge ordered the compilation of a list of communications carried out from several of the applicant ’s other mail - boxes in the period from DATE to DATE , and also the provision of information on the total number of communications logged in these mailboxes DATE and DATE . On DATE , the judge ordered the compilation of a list of outgoing telephone calls from the applicant ’s land line on DATE TIME

On DATE criminal proceedings were initiated against the applicant for unlawful restraint ( omezování osobní svobody ) in concurrence with coercion ( vydírání ) , defamation ( pomluva ) and false accusation ( křivé obvinění ) .

NORP In DATE a search was conducted in both the applicant ’s flat and the commercial premises where he ran his business , upon the search orders issued on CARDINAL and DATE respectively . The applicant was arrested on DATE and was charged with unlawful restrain , coercion , defamation and false accusation , and released afterwards .

The police continued to gather evidence during DATE and DATE . They obtained an expert psychiatric opinion on the applicant ’s health , analysed his computer , carried out a search of his flat and questioned a number of witnesses .

On DATE C. ’s mother was interviewed . She stated , in particular , that :

“ On DATE ... my daughter called me at work , started crying on the phone ... She told me that ... she had been dating [ the applicant ] the entire time . [ She ] continued crying a lot , which made me realise that this was not all there was to it . It made me feel physically sick . She continued the story , saying that when she was at home for DATE [ the applicant ] had abducted her . She had agreed to meet him somewhere in GPE they met normally and agreed to go out for a drink in TIME . But he said that he needed to change clothes so they would first drive to his place and then go out TIME . In the apartment , however , he tied her up and menaced her with horrible threats . At that time , she did not tell me any details . ... At the same time , during our phone conversation we came onto the topic of the threatening emails that [ the applicant ] had been sending her the entire time . She said that she had not paid much attention to them but that lately it had got completely out of hand and ... he had started threatening to kill her and , finally , had sent her an email saying that she should not forget that she had her entire family in GPE , specifically mentioning her mother and brother , and that she should not forget that he knew where we lived .

I personally contacted the psychologist ... She confirmed that my daughter had phoned her as well . She said that she had advised her ... to immediately cut off all contact with [ the applicant ] ... I told her about what [ the applicant ] had done to my daughter at DATE and she essentially replied that [ the applicant ] had also told her about it and that she had strictly forbidden him to ever do such a thing again ...

[ C. ] told me that in DATE , when she was in his flat , [ the applicant ] had tied her up , threatened to kill her , to traffic her , to make a movie of her taking drugs or a porn movie ; he had also searched through her handbag and taken a piece of paper with her home address or had written it down , had searched through the address book in her mobile phone and had accessed her electronic mail box after forcing her to give him the password ... ”

The investigation having been concluded in DATE , the applicant was indicted for coercion under Article CARDINAL § § CARDINAL and CARDINAL of LAW on DATE . This legal classification of his criminal acts was more serious than that indicated in the notice served on him on DATE , when he had been charged with deprivation of personal liberty under Article CARDINAL § § CARDINAL and CARDINAL of LAW in conjunction with coercion under LAW . According to the applicant , he had not been informed about it , contrary to LAW ORG .

According to the Government , on DATE C. apologised through her mother for not being able to attend the hearing before ORG .

The trial started on DATE . As PERSON apologised for not attending the main hearing , the statement made by her on DATE was therefore read out . The applicant claimed that ORG ’s residence abroad had not been a sufficient reason for carrying out her interview as an urgent measure and that her statement should not be read out at the trial . He argued that the conditions laid down in LAW had not been met .

ORG tried to summons PERSON again . In its letter of CARDINAL DATE , the court sent a summons to the main hearing to C. through her mother . On DATE ORG sent to ORG copies of the documents justifying the urgent need to interview C. , namely the request of DATE to secure the presence of a judge during an urgent and non - repeatable measure and the police letter of CARDINAL DATE .

NORP In a letter of DATE , C. informed the presiding judge that , although she had been summonsed , she was unable to attend the main hearing because she had been working abroad for DATE and intended to stay abroad on a permanent basis . She stated that the circumstances justifying the applicant ’s criminal prosecution were very stressful for both her and her mother . It appears that ORG did not try to summon C. again .

In a judgment of DATE ORG found the applicant guilty of coercion and sentenced him to DATE suspended prison sentence subject to a probationary period of DATE . The court explicitly noted that in finding the applicant guilty , it mainly relied on the testimony of C. , but also on a statement made by GPE , a schoolfriend of C. ’s , who stated that she had received emails concerning PERSON ; the statement by ORG psychotherapist , who testified that C. had confided in her about having been taken somewhere by the applicant against her will ; the statement by ORG mother ; a testimony by PERSON implying that the applicant and C. had met at DATE ; expert opinions in cybernetics and computer technology and in psychiatry ; the emails sent by the applicant to C. DATE and DATE ; and the letter from PERSON , in which C. wrote to her female friend about the applicant ’s violent behaviour .

The court then stated :

“ Based on such secured evidence , the court came to a clear conclusion , finding the defendant guilty as indicated in the verdict of the judgment . The defendant denies any such behaviour and actions on his part directed against [ C. ] as described in the judgment ; however , he has clearly been proved guilty by the evidence taken . The court relied in particular on the testimony of witness [ C. ] , who described the defendant ’s actions in great detail . The testimony is consistent with further evidence taken . This includes email correspondence , which corroborates the victim ’s statement and the victim ’s mother ’s statement to the effect that the victim had confided in her about everything on DATE . A brief description of the defendant ’s behaviour was also included in the letter sent by the victim to her female friend [ PERSON ] which was available to the court ... In his expert opinion , the expert concluded that it was absolutely possible and posed no problem for the defendant to use previously prepared straps to tie the victim to bed and partially undress the bottom CARDINAL of her body , and that it was absolutely possible and posed no problem for him to tie her up in the manner she had described ... ”

On DATE the applicant appealed , raising a number of procedural , factual and interpretational complaints . He claimed , inter alia , that C. ’s statement remained uncorroborated evidence on which his conviction was based .

In his extensive submissions of CARDINAL DATE , he requested that C. be questioned in order , inter alia , to clarify the contradictions between the statements given by C. , her mother , and her psychologist and the applicant ’s testimony . He also suggested that an expert opinion be drawn up by a psychiatric expert to assess the reliability of C. and to complete and assess other evidence , including the hearing of CARDINAL witnesses who had been rejected without adequate reasoning by the first instance court . He also requested that ORG ( městský soud ) postpone the public hearing , without giving any reason in this respect .

The hearing before ORG was held on DATE in the absence of the applicant , who had apologised in writing on CARDINAL DATE indicating that he could not attend the hearing due to serious personal and family reasons , but agreeing that the court carry out merely the procedural acts allowed by LAW ORG and asking , at the same time , to postpone the hearing afterwards . At the hearing he was represented by counsel who , contrary to the applicant ’s written appeal , did not request that any further evidence be taken . The court , having rejected the applicant ’s request to postpone the hearing , examined his appeal , upholding the conviction of the first instance court .

The court found that the applicant ’s guilt had been securely established in particular by the statement given by ORG , which was not the only evidence against the applicant , her statements having been corroborated by further indirect evidence , such as the testimony of her mother , in whom PERSON had confided at the material time . The appellate court also found that , although C. and her mother had not had a close relationship before , PERSON contacted her out of fear for her and her brother ’s life and described the acts of coercion carried out by the applicant . Witness C. ’s mother also claimed that the initial anonymous criminal complaint sent by email to the GPE CARDINAL ORG had been sent by the applicant , who had thus lodged a false accusation . Her testimony was examined in detail . The indirect evidence also included text messages sent by the applicant on DATE and the criminal complaint filed by ORG in GPE on DATE . The time concurrence was thus a significant factor , too .

As regards the reliability of ORG and the assessment of evidence , the court stated :

“ ... the assessment of the evidence is reasonable and convincing , as is [ ORG ] conclusion concerning the reliability of witness [ C. ] . ORG was not wrong in believing this witness , who proved the defendant ’s guilt of the criminal acts . The testimony of the victim was not the only convincing evidence against the applicant on which the ORG based its conclusion about the defendant ’s guilt , since the defendant ’s criminal acts are also proved by a chain of indirect evidence corroborating the testimony of the victim and confirming the credibility of her statements . This includes , in particular , the testimony of her mother ... in whom the victim confided during a phone call on DATE in which she described the defendant ’s actions , including the way he had tied her up in his apartment , threatened her and sent her threatening emails . The testimonies given by [ C. ] and her mother ... regarding the relevant facts correspond to the content of the criminal complaint filed by the victim at the police station in GPE , GPE ... on DATE . The defendant ’s complaint that the unreliability of the victim is proved by the fact that she did not confide earlier in her mother or a close female friend about his alleged behaviour is ill - founded : the evidence taken clearly shows that the victim and her mother did not previously have a particularly close relationship since she did not confide in her mother about her relationship with the defendant . This is understandable given that she was allegedly abused by the mother ’s partner ( as the victim confided in the defendant ) . Furthermore , the victim was already back in GPE at the relevant time ( as of DATE ) and her contact with the defendant was conducted solely via mobile phone calls and email correspondence . In these circumstances , the behaviour of the victim appears rather logical and understandable , i.e. confiding in her mother and brother concerning the threats to their health and her life in an SMS message . ... The reliability of the victim and the veracity of her testimony is also corroborated by the emails included in the ... These emails , which were submitted to the police by the victim , correspond case file to her testimony as to the timeframe and the contents ... It is hardly possible for ORG to believe that the victim would systematically and for DATE beforehand prepare all the evidence ... in order to be able to file a criminal complaint against the defendant . In addition to the above , the defendant ’s contacts with the victim ( which he himself did not deny ) and her reliability are also clearly shown in the defendant ’s affidavit of DATE ... , in which the defendant declared he did not have any financial claims against the victim . Finally , one should not disregard the statement of an impartial witness ... namely the victim ’s psychotherapist , who confirmed that the victim came to her because of relational problems with the defendant , confided in her about having been held by the defendant against her will and driven off somewhere in his car , and about his emails threatening to harm her if she left him . All this indirect evidence is interrelated and consistent with the victim ’s testimony . Consequently , the defendant ’s complaint concerning the unreliability of the victim is ill - founded ... As a result , ORG correctly believed the testimony given by the victim in relation to this matter , considering her testimony in general to be credible ...

The defendant ’s behaviour and verbal aggression , as documented in the emails and SMS messages sent by him escalated at a later stage , prompting the victim to file a criminal complaint and change her contact details because she was afraid of the defendant ’s behaviour after he threatened to harm her mother and brother . ... ”

In respect of the applicant ’s complaint concerning ORG ’s interview , which was conducted as an urgent and non - repeatable measure under LAW ORG , ORG noted that :

“ The victim was duly interviewed in the presence of a judge ... , with the unrepeatability of the measure being determined by the long - term residence of the witness in GPE . The justification of such a procedure and the unavailability of the witness were confirmed by the efforts of ORG to secure her attendance at the main hearing , which the witness repeatedly failed to attend , providing a written statement to the effect that she was residing abroad on a long - term basis and would not be able to attend the main hearing in the foreseeable future . Therefore , ORG deemed legal the procedure applied by the ORG whereby , after exhausting the possibility of examining the victim in the main hearing for unavailability due to her residence abroad , it read out the statement she had made ... in the pre - trial proceedings in accordance with Article CARDINAL § CARDINAL(a ) of LAW . Although this was key evidence , it was not the only evidence proving the defendant ’s guilt ... ”

The appellate court admitted that the prosecutor had violated Article CARDINAL § CARDINAL of the ORG in reclassifying the charges without notifying the applicant . It found , however , that this omission did not impact on the legality and correctness of the reviewed judgment to the extent that a duty to reverse it resulted .

On DATE the applicant filed an appeal on points of law ( dovolání ) which was rejected as unsubstantiated by ORG ( PERSON ) on DATE . The court stated that the appellate court had not proceeded erroneously in having decided the case in the absence of the applicant , who had not sufficiently substantiated his request to have the hearing postponed . It added that the applicant ’s counsel had not requested that further evidence be gathered and assessed and that , therefore , there had been no need to postpone the hearing .

On DATE the applicant filed a constitutional appeal ( ústavní stížnost ) which was dismissed by ORG ( GPE soud ) in a decision of DATE which was served on the applicant on CARDINAL DATE . Having analysed the testimony given by C. , ORG found that , although it was direct evidence , it was corroborated by a chain of indirect evidence , especially the testimony of her mother . In respect of the remaining complaints , the ORG agreed with the findings of the lower courts stating , in particular :

“ The applicant ’s complaints regarding the search in his flat and non - residential LOC and lands are unsubstantiated . The search in the applicant ’s domicile was carried out in compliance with LAW on the basis of the search order issued by ORG . The applicant had the opportunity , if he was convinced that the search is unlawful , to lodge a constitutional appeal against this order ... In a constitutional appeal against the final judgment of conviction , it is possible , in connection with a search carried out unlawfully , complain in particular the inadmissibility of concrete pieces of evidence which were gathered and on the basis of which [ an applicant ] was found guilty . However , the applicant did not expressly submit any concrete evidence which would be gathered illegally . ... ”

On DATE the applicant submitted to ORG a claim for compensation for damages caused by delays in the criminal proceedings under LAW ( no . CARDINAL/CARDINAL ) . On DATE his claim was rejected as having been introduced outside the DATE statutory time - limit . On DATE the applicant filed an action for damages against the Ministry , which appears to be still pending before the Prague CARDINAL ORG .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE and is serving a prison sentence in GPE .

According to the official version of the events , on CARDINAL DATE PERSON , a close friend of the applicant , was arrested by the police when he attempted to sell to P. the amphetamines he had earlier bought from the applicant . PERSON voluntarily agreed to participate in a fake drug deal organised by the police to help them arrest the applicant in order to stop his drug dealing . He made a written statement to that effect . PERSON called the applicant in the presence of CARDINAL attesting witnesses and police officers and asked him to sell him CARDINAL ecstasy pills . The applicant met PERSON at TIME He gave him the drugs and PERSON paid him in cash . The police officers then arrested him . PERSON gave the police the drugs he had received from the applicant . The police took the marked banknotes PERSON had paid for the drugs from the applicant ’s bag . Then they cut the applicant ’s nails for forensic analysis . The attesting witnesses were present at the scene and could observe the whole operation .

According to the applicant , PERSON called him and asked for help because he had been arrested . He also asked for money . The applicant agreed to help him . When he met PERSON , the latter put several banknotes in his bag , which was open . Then several plain - clothed police officers arrested him . They handcuffed him , took the banknotes which PERSON had planted in his bag , cut a section out of his bag and cut his nails , together with some adjacent skin . When the applicant refused to sign the arrest record , CARDINAL of the police officers punched him . The applicant then signed the document .

The applicant was taken to a police station . The head of the police station , PERSON , beat the applicant up in order to make him confess to the crime . The police officers also took some of the applicant ’s personal effects and the cash he had on him . The applicant spent TIME at the police station .

On DATE the applicant met with a lawyer , PERSON . The latter told him to confess to the crime and to give some cash to the police . They would then let him go and make sure that he received a conditional sentence . The applicant did as he had been told by PERSON .

The applicant remained in custody during the criminal proceedings against him .

On DATE ORG of GPE found the applicant guilty of drug dealing and sentenced him to DATE imprisonment . The court based its findings on ( CARDINAL ) the testimonies of PERSON , police officers , CARDINAL of the attesting witnesses and the investigator ; ( CARDINAL ) materials pertaining to the fake drug deal ; and ( CARDINAL ) forensic evidence . The court also noted that the applicant ’s allegations of ill - treatment had not been subjected to examination in the course of the trial .

At the trial the applicant was represented by CARDINAL lawyers . He pleaded not guilty . He recounted his version of the events , alleging that PERSON and the police had set him up .

On DATE ORG upheld the applicant ’s conviction on appeal .

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

The applicant was always transported alone in a single compartment . He was allowed to use a toilet at the courthouse , if necessary . Once at the courthouse , he had access to drinking water .

The Department of the ORG used CARDINAL types of van for transporting defendants to and from the courthouse . The ORG van had an inmate compartment measuring CARDINAL by CARDINAL by QUANTITY comprising CARDINAL cells with seating capacity for CARDINAL persons each and CARDINAL single cell . The inmate compartment in GAZ-CARDINAL and GAZ-CARDINAL vans measured CARDINAL by CARDINAL by QUANTITY and had CARDINAL cells with seating capacity for CARDINAL persons each and CARDINAL single cell . The inmate compartment of the KAVZ-CARDINAL van measured CARDINAL by CARDINAL by QUANTITY and had one cell with seating capacity for QUANTITY persons and CARDINAL single cells . The inmate compartment in ZIL-CARDINAL vans measured CARDINAL by CARDINAL by QUANTITY and had CARDINAL cells with seating capacity for CARDINAL persons each and CARDINAL single cells .

The vans were ventilated through an opening in the door and by vents in the compartments . They were equipped with heating and lighting . They were cleaned DATE and disinfected on a DATE basis . The vans were in good working order at all times .

According to the technical specifications for prison vans submitted by the ORG , a single compartment in a prison van can not measure CARDINAL by QUANTITY The width of CARDINAL seating place should be QUANTITY

According to the applicant , he was placed in a prison van compartment measuring QUANTITY by PERSON by QUANTITY It was lined with metal sheeting and completely isolated from the rest of the van interior . The height of the compartments in the van was insufficient for a man of average stature to enter or stand up without hunching . Inmates were to remain seated at all times while inside the van . On average , each trip lasted TIME . After the court hearings , the applicant and other detainees were first taken to remand prison no . MONEY , where they were sorted depending on destination . Throughout the time the vans were parked at the remand prison , their engines were off and the lighting , heating and ventilation did not function . The compartments inside the vans were very cold in the DATE , when the outside temperature was minus CARDINALoC. The inmates were not allowed to use the toilet . All the inmates smoked and the applicant , a nonsmoker , was exposed to second - hand tobacco smoke .

On DATE the applicant was transported to a correctional colony to serve his prison sentence .

According to the Government , the applicant was taken from the remand prison to the railway station in a prison van . The trip lasted TIME ( from CARDINAL to TIME ) . It took TIME to place the prisoners in railway carriages ( from QUANTITY to TIME ) . The train journey lasted TIME and TIME ( from TIME to TIME ) . On arrival at the destination station , the inmates were again placed in vans and taken to the respective detention facilities . The trip lasted TIME ( from TIME to TIME ) .

The train compartment in which the applicant was placed measured CARDINAL by QUANTITY The number of inmates placed in the compartment did not exceed CARDINAL . There were CARDINAL berths and CARDINAL seats in the compartment . The berth was QUANTITY long . The passage between the berths and seats in the compartment was QUANTITY wide . All the inmates had luggage which they were allowed to place under the lower berths . The railway carriage was equipped with heating and ventilation in good working order .

As regards the smoking issue , the ORG submitted as follows :

“ Inmates transported by [ train ] ... are not allowed to smoke . They are warned accordingly by the chief guard . However , the inmates who smoked , during a long trip , became stressed if deprived of smoking . They took advantage of the fact that they were allowed to have cigarettes on them and those could not be confiscated . They tried to smoke , hiding it with skill . Their attempts to smoke , if noticed by the guard , were stopped ... ”

Inmates were not allowed to use the toilet within the boundaries of GPE , that is at the station and during TIME of the journey . Thereafter , they were allowed to use the toilet TIME .

According to the ORG , the applicant submitted CARDINAL complaints to the prosecutor ’s office about the conditions of his transport . In response , the latter asked the authorities in charge of GPE transport to conduct an inquiry . No violations were disclosed .

The trip lasted TIME . The applicant was placed in a train compartment measuring QUANTITY together with CARDINAL other inmates . They were not allowed to use the toilet throughout the journey and had to use plastic bottles in the compartment instead . Almost all of the inmates smoked , and the applicant was exposed to second - hand tobacco smoke .

According to a statement signed by the acting head of remand prison SIZO-CARDINAL in GPE and submitted by the Government , during the applicant ’s detention in the remand prison from DATE to CARDINAL DATE , he underwent regular medical examinations and received any necessary treatment .

Upon arrival at the remand prison , the applicant underwent obligatory blood tests , an X - ray examination and a physical check - up . The blood tests confirmed the presence of HIV ( stage DATE asymptomatic HIV infection ) . He was prescribed a special diet and placed under regular medical supervision .

During the period from DATE to date , the applicant has been serving a prison sentence in a number of correctional GPE . The parties did not indicate the exact colony numbers .

Following his arrival at correctional colony no . IK-CARDINAL in GPE , the applicant underwent a complete physical check - up . The general practitioner recommended consultation with an infectious diseases specialist and a psychiatrist , and prescribed a general blood test and a general sputum smear test .

On CARDINAL May and DATE the applicant had X - ray examinations . No abnormalities in the lungs were detected .

According to the applicant ’s medical file , he did not receive any HIV - related treatment or examinations in DATE .

On DATE the applicant was transferred to a medical correctional colony in order to undergo a comprehensive medical examination . He was examined by an infectious diseases specialist and had a CDCARDINAL cell count on DATE . His CDCARDINAL cell count was CARDINAL . The diagnosis ( stage DATE asymptomatic HIV infection ) was confirmed . He had a biochemical blood test and urine samples were taken . On CARDINAL DATE he was discharged from hospital in a satisfactory condition and transferred back to correctional colony no . IK-CARDINAL .

On DATE , DATE and DATE the applicant had ORG examinations . No abnormalities in the lungs were detected .

On DATE , CARDINAL DATE and CARDINAL DATE the applicant consulted the infectious diseases specialist . On DATE , following contact with a tuberculosis - infected inmate , the applicant was examined by a tuberculosis specialist who recommended preventive antituberculosis treatment .

On DATE the applicant had a viral load test .

On DATE the applicant had another CDCARDINAL cell count . On DATE he consulted the infectious diseases specialist . Because the applicant had a low CDCARDINAL cell count of CARDINAL , the doctor re - classified the applicant ’s diagnosis as stage CARDINAL and recommended antiretroviral therapy . The applicant consented .

On DATE the applicant was examined by the tuberculosis specialist . Subsequently , he underwent preventive medical treatment until DATE .

It appears that the applicant started antiretroviral therapy on DATE , but developed an allergic reaction to the medication . On DATE he consulted the infectious diseases specialist by telephone . The latter recommended discontinuing the treatment . The applicant followed the doctor ’s recommendation .

On DATE the applicant resumed antiretroviral therapy , which was discontinued in view of the allergic reaction .

From CARDINAL DATE the applicant underwent a medical examination in hospital . On DATE ( or DATE ) DATE his CDCARDINAL cell count was CARDINAL . In view of the test results and referring to the side effects of the antiretroviral therapy , the applicant refused to undergo the therapy .

On DATE the applicant had an ultrasound scan of his liver , which disclosed diffuse liver changes .

On CARDINAL DATE the applicant ’s CDCARDINAL cell count was CARDINAL .

On DATE the applicant had a chest X - ray examination . No abnormalities were detected .

From DATE ) to DATE and from CARDINAL DATE the applicant underwent an HIV - related examination in hospital . He had an ultrasound scan in connection with polyposis of the gallbladder and diffuse liver changes , and was examined by an infectious diseases specialist .

On DATE the applicant had a chest X - ray . No abnormalities in the lungs were detected . On DATE the applicant consulted a tuberculosis specialist .

The applicant was admitted to hospital and received treatment for acute gastritis from CARDINAL to CARDINAL DATE .

On DATE the applicant had another chest X - ray , which showed infiltrative shadows on the left lung . On DATE the applicant was examined by the tuberculosis specialist , who prescribed a further tomographic examination and sputum smear test .

DATE . On DATE the applicant agreed to undergo antiretroviral treatment . It appears that it was not carried out at the time .

From DATE to CARDINAL DATE the applicant underwent another HIV - related examination in hospital .

The sputum smear test of CARDINAL DATE proved negative . The tomography of CARDINAL DATE showed infiltration in the left lung . On DATE the tuberculosis specialist ruled out the possibility of tuberculosis infection .

The applicant was admitted to hospital and received treatment for acute laryngitis from CARDINAL to CARDINAL DATE .

On DATE the applicant consulted the infectious diseases specialist .

On DATE the applicant ’s CDCARDINAL cell count was CARDINAL .

On DATE the applicant had a chest X - ray and was diagnosed with tuberculosis ( infiltration stage ) . On DATE he was admitted to hospital , where he underwent treatment for tuberculosis until DATE .

DATE and from CARDINAL to CARDINAL DATE the applicant was admitted to hospital for examinations . It was established that his HIV condition was progressing and it was diagnosed as stage DATE .

DATE the applicant underwent treatment for HIV and tuberculosis in hospital . His CDCARDINAL cell count of CARDINAL DATE was CARDINAL . According to the applicant , he started antiretroviral treatment in DATE .

The applicant received HIV examinations and treatment in hospital from CARDINAL May to DATE . Upon discharge , his condition was considered satisfactory .

According to the applicant , the antiretroviral treatment was interrupted from DATE owing to a lack of necessary medication . The applicant ’s medical file contains an entry confirming the lack of necessary medication in stock . On DATE the applicant received the medication to resume the antiretroviral treatment . Subsequently , there were no interruptions in the prescribed treatment .

On an unspecified date the applicant asked for a transfer to a correctional facility with a less strict regime .

On DATE the ORG of GPE dismissed the applicant ’s request , noting that he should complete the medical treatment prescribed prior to such a transfer , if any . The applicant did not appeal .

According to the applicant , the administration of correctional colony no . PERSON in GPE where he was serving his prison sentence refused to dispatch his letters of DATE , and CARDINAL DATE , CARDINAL DATE and CARDINAL DATE addressed to the ORG , in which he complained of inadequate medical care . He further alleged that the letters of CARDINAL DATE and CARDINAL DATE , which he had received from ORG , had been opened and read by the administration of the correctional colony ; that his letter addressed to ORG had been opened and dispatched with CARDINAL days’ delay ; and that his letter addressed to his lawyer , PERSON . , of CARDINAL DATE had not been dispatched .


Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

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

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

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

On DATE the applicant was employed as a salesman ( manager for key buyers ) in company I. ( hereinafter : the “ company ” ) on an indefinite contract . The contract of employment conditioned his confirmation in the post by a successful DATE probationary period .

By the company ’s decision of CARDINAL DATE the applicant ’s employment was terminated on the grounds that he had failed to satisfy the requirements of the post . He was given CARDINAL days’ notice .

The applicant objected to the decision terminating his employment arguing , inter alia , that it was incorrect that he had failed to satisfy the requirements of the post and that the real reason for the cancellation of the employment contract had been the overall financial austerity within the company .

The company maintained its position reiterating the reasons for its decision to terminate the applicant ’s employment .

On DATE the applicant lodged a civil action in ORG ( Općinski građanski sud u GPE ) challenging the company ’s decision . He argued that he had duly complied with all relevant requirements of the post and that the real reason for the cancellation of his employment contract had been the overall financial austerity within the company . Accordingly , he contended that since the reason for the cancellation of his employment contract had not been the CARDINAL cited by the company , namely his inadequate professional performance , but the economic reasons related to the company ’s business performance , the termination of his employment had been unlawful . The applicant requested that the relevant documents concerning his employment contract be admitted into evidence and that CARDINAL witnesses , PERSON and PERSON , be questioned in court .

During the proceedings ORG questioned several witnesses , including PERSON and PERSON , and examined the relevant documents submitted by the parties . Throughout the proceedings the applicant was represented by a lawyer who actively participated in the questioning of witnesses and examination of evidence at the trial .

On DATE ORG dismissed the applicant ’s civil action . It set out the scope of the case before it in the following manner :

“ The cancellation of an employment contract conditioned by a probationary period should be assessed under the legal provisions concerning regular or extraordinary [ dismissal ] , that is to say , in the concrete case , under section CARDINAL § CARDINAL ) of LAW . This provision provides that an employer can cancel the employment contract in case of a justified reason . Under section CARDINAL § CARDINAL of LAW the burden of proof of the existence of a justified reason is on the employer .

In these circumstances the defendant is required , under LAW in conjunction with section QUANTITY ( CARDINAL ) of LAW , to prove the existence of the justified reason for a dismissal related to the [ worker ’s ] personal circumstances , that is to say [ to prove ] that the plaintiff failed to satisfy the requirements of the post of a manager for key buyers . The objection of the plaintiff that his dismissal was based on some other reasons , namely economic , is irrelevant since the plaintiff is not in a position to demonstrate the existence of reasons which were not cited as the reasons for dismissal . This court therefore dismissed the plaintiff ’s request for obtaining of the information from the [ ORG ] about the number of workers in the [ company ] in the period DATE , as well as the information from the [ competent tax authority ] concerning the financial reports about the defendant ’s business performance in DATE , as well as the information about the workers who were dismissed [ from the company ] in that period . This is because this court finds such information irrelevant given that the grounds for dismissal were not the economic reasons . It is not for the plaintiff to demonstrate [ the existence of these reasons ] but the burden of proof is on the defendant who is required to show the existence of the reasons cited in its decision on dismissal as that is the subject matter of this dispute . ”

ORG further found that it followed from the statements of several witnesses and the relevant evidence adduced during the proceedings that the applicant had failed to meet the requirements of the post and that therefore his dismissal by the company had been justified and lawful . ORG in particular stressed :

“ In the case at issue the dismissal was based on the grounds that “ the worker failed to meet the requirements of the post ” ; that is therefore a dismissal related to the worker ’s personal circumstances . ...

The court ’s assessment whether the justified reasons for such a dismissal existed is based on the assumption that the communication skills , teamwork and personal initiative are the relevant characteristics and skills for the position of a manager for key buyers , and the plaintiff failed to demonstrate those characteristics and skills . As already stated above , the purpose of the probationary period is to allow the employer to verify the working skills of the worker , and the worker thereby assumes a certain risk which he or she must be aware of when concluding such a contract of employment . It should be also noted that the employer independently decides which characteristics and skills of a worker are relevant for a particular post , that is to say which are the characteristics and skills that [ the employer ] requires , given that [ the employer ] is independent in organising and managing its business . In these circumstances , and in view of the evidence adduced during the proceedings , this court finds that the plaintiff was given an opportunity to demonstrate his skills , given that he was invited to the meetings , he had free access to everything and everybody in the company and essentially free space to demonstrate his skills . However , he failed to show that he possessed the required characteristics and skills , which this court found established from the cited witness statements . ”

NORP The applicant appealed to ORG ( Županijski sud u GPE ) arguing , inter alia , that , given the scope of the case set out by ORG , he had not been given an opportunity to challenge the real reasons for his dismissal which had been , in his view , related to the company ’s business performance .

On DATE ORG dismissed the applicant ’s appeal as ill - founded . With regard to the applicant ’s specific arguments , and in view of the evidence adduced during the proceedings before the first - instance court , ORG noted :

“ In view of these findings , the first - instance court correctly examined the lawfulness of the impugned decision [ on dismissal ] under section CARDINAL § CARDINAL ) of LAW . In such a case , under LAW of the same LAW , the burden of proof for the justification of the decision [ on dismissal ] is on the defendant . The plaintiff argued that the reasons for the dismissal were false and fabricated and that the real reasons for the termination of his employment contract had been of the economic nature , whereas he had professionally , diligently and correctly performed the assignments of his post .

Given the [ relevant ] factual findings , it undoubtedly follows that the reasons for the impugned dismissal are truthful and justified and that the objection of the plaintiff that these reasons are not real is unsupported by evidence and unfounded . ”

The applicant further lodged an appeal on points of law with ORG ( PERSON ) reiterating his previous arguments that he had not been able to demonstrate the real reasons for his dismissal .

On DATE ORG dismissed the applicant ’s appeal on points of law as ill - founded , upholding the decisions of the lower courts .

The applicant then lodged a constitutional complaint before ORG ( Ustavni sud PERSON ) reiterating his arguments adduced before the lower courts .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible as manifestly ill - founded . The decision of ORG was served on the applicant ’s representative on DATE .

The relevant provision of LAW ( ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) , CARDINAL , DATE and CARDINAL/CARDINAL ) reads :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

At the material time the relevant part of LAW ( Zakon o radu , ORG no . DATE consolidated text ; providing for an amended enumeration of sections under the original text of LAW , Official Gazette no . CARDINAL , which are noted below in the brackets ) provided :

“ ( CARDINAL ) At the moment of the conclusion of an employment contract a probationary period of work may be stipulated .

( CARDINAL ) NORP The probationary period of work under paragraph CARDINAL of this section shall not be longer than DATE .

( CARDINAL ) If the probationary period of work has been stipulated , the notice period is DATE . ”

“ The employer and the worker may cancel the employment contract . ”

“ ( CARDINAL ) The employer may cancel the employment contract , observing the prescribed or stipulated notice period ( regular cancellation of an employment contract ) if he or she has justified reason in the case :

- there is no longer need for a particular work due to economic , technical or organisational reasons ( professionally conditioned dismissal ) ;

- if the worker is unable to duly perform the assignments of his or her post due to certain permanent characteristics or skills ( personally conditioned dismissal ) ;

- if the worker breaches his or her work assignments ( dismissal conditioned by a wrongful conduct of the worker ) .

“ ( CARDINAL ) A dismissal must be in a written form .

( CARDINAL ) NORP The employer must provide reasons for the dismissal in a written form .

( CARDINAL ) The [ decision on ] dismissal must be served on the dismissed person .

( CARDINAL ) The notice period starts running from the moment of the service of the [ decision on ] dismissal .

“ ( CARDINAL ) If the employer cancels the employment contract , and this Act requires the existence of a justified reason , he or she must prove the existence of the justified reason for dismissal .

The relevant part of LAW ( Zakon o parničnom postupku , ORG no . DATE consolidated text ) provides :

“ ( CARDINAL ) In the proceedings concerning the employment disputes , in particular with regard to the scheduling of hearings , the court shall always bear in mind the necessity of expeditious resolution of the employment disputes .

In the judgment no . Revr-CARDINAL/CARDINAL - CARDINAL of DATE , concerning extraordinary cancellation of an employment contract , with regard to the scope of the case in the employment disputes ORG noted :

“ Under section CARDINAL ( section CARDINAL [ in the enumeration of the original text ] ) of FAC the burden of proof concerning the existence of the justified reason for dismissal is on the employer . The court determines the operative facts of the case within the scope of the reasons cited for the dismissal . ”

In the judgment no . CARDINAL of DATE , concerning the cancellation of an employment contract during DATE , ORG held the following :

“ Under section CARDINAL § CARDINAL ( section CARDINAL § CARDINAL of the consolidated text of LAW ) the employer may cancel the employment contract observing the prescribed or stipulated notice period ( regular cancellation of an employment contract ) if he or she has justified reason for that .

Accordingly , by relying on the cited provision , and given that the plaintiff and the defendant had concluded an employment contract under DATE , the plaintiff was allowed to cancel the plaintiff ’s employment contract if it had justified reason for the dismissal .

This court accepts the conclusion of the lower courts according to which the defendant , upon whom the burden of proof rested under LAW of LAW , that is to say section CARDINAL § CARDINAL of the consolidated text of LAW , proved during the proceedings that it had had a justified reason for the dismissal ( section CARDINAL § CARDINAL of LAW ) given that the plaintiff had failed to meet the requirements of the post during her probationary period . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

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

On DATE the applicant brought a liability action ( ação de responsabilidade civil ) in ORG against F. , a lawyer who had acted as her legal representative in previous proceedings , claiming damages for professional negligence .

On DATE F. was notified of the action . On DATE he lodged his submissions in reply ( contestação ) and requested the intervention of his insurance company to which he had transferred his responsibility for the acts committed by him in his capacity as lawyer .

On DATE the applicant lodged new submissions in reply ( réplica ) .

By a ORG decision of CARDINAL DATE the intervention of the insurance company in the proceedings was accepted . The company was summoned on an unknown date . On DATE it lodged its submissions , to which the applicant replied on DATE .

DATE the parties disputed the applicant ’s legal capacity to be a party to the proceedings ( capacidade judiciária ) .

On DATE the judge gave directions ( despacho saneador ) absolving F. of the proceedings ( absolvição do réu da instância ) on the grounds of the applicant ’s lack of legal capacity .

On an unknown date the applicant appealed against that decision to ORG ) . By a decision of DATE ORG considered that the applicant had legal capacity and ordered the re - analysis of the case at first instance . In DATE , the proceedings were allocated to ORG .

On DATE the judge gave directions setting out the matters that had already been established and those that remained outstanding .

DATE and DATE the parties lodged , in total , CARDINAL requests to which the judge promptly replied in DATE .

On an unknown date the case was set down for hearing on DATE . The hearing was later adjourned to DATE . A second hearing took place on DATE .

On DATE ORG partially found in favour of the applicant .

The parties appealed against the decision to ORG , which dismissed the appeals on DATE .

The parties challenged ORG decision before ORG .

On CARDINAL DATE ORG dismissed the appeals .


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

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

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

During DATE and DATE NORP paramilitary forces gained control of CARDINAL of the territory of GPE and proclaimed the “ GPE ” ( NORP autonomna oblast LOC , hereinafter “ LOC ” ) . At DATE the NORP authorities announced their intention to take military action with the aim of regaining control over LOC . The operation was codenamed “ Storm ” ( PERSON ) and took place from CARDINAL to CARDINAL DATE . Before the military action , the vast majority of the population of LOC fled GPE . Most of them went to GPE , and also to GPE . Some returned to GPE after the war . The number of people who fled is estimated at CARDINAL .

On DATE GPE ratified the Convention .

On DATE the applicants’ close relatives , ORG and ORG , were killed in a house in GPE , a town on the territory of LOC . The police were alerted to the killings on DATE . On DATE the bodies were buried in a cemetery in PERSON .

On DATE the police interviewed PERSON , who said that on DATE he had been wounded by the NORP army in GPE . DATE he had seen G.O. and PERSON alive but did not know what had happened to them after that because he had been taken to a hospital by a member of the NORP army .

On DATE the police interviewed GPE and ORG said that on DATE she had moved to a house in GPE , together with the first applicant , PERSON and PERSON On DATE the NORP army had entered GPE . When PERSON and ORG had been killed she had not been in the house and had not seen who had killed them . PERSON said that he had lived in GPE during the war . On DATE the NORP army had entered GPE . On CARDINAL DATE he had heard that GPE and ORG had been killed DATE before but had not seen who had done it .

On DATE the police interviewed the second applicant . He said that at the material time he had been serving as a NORP policeman in PERSON . He had learned about the killing of his wife PERSON and her mother PERSON on DATE when his son , who had lived with his mother and grandmother , had been brought to him . The son said that on TIME some members of the NORP army had come to their house and asked for the keys of a FAC vehicle parked in the courtyard but that his grandmother had shouted at them . The second applicant assumed that that had angered the soldiers who had then killed his wife and her mother .

On DATE the ORG asked the PERSON police whether the GPE area had been occupied on DATE ; whether the perpetrator of the killing of ORG had been identified ; and whether ORG had been a member of the paramilitary forces of LOC or of the NORP army . On DATE the NORP police department replied that PERSON had not been occupied on DATE because NORP paramilitary forces had left the area DATE as the NORP forces had advanced from the direction of PERSON . However , owing to the disorganised nature of the withdrawal of the NORP paramilitary forces , there had still been some armed members of the “ NORP army ” in the area . On DATE the NORP forces had started to enter the area and therefore it could be said that from a military point of view that area had been in a war zone . There had been no information about the people who had killed PERSON and she had not been registered as a member of any army .

On DATE the police interviewed the first applicant , who said that he had lived with his mother and grandmother in PERSON and that his father had been a NORP policeman . When the war had escalated in DATE his mother had stayed in PERSON , in occupied territory , since her mother was a disabled person who could not move at all . Some time at the beginning of Operation Storm his uncle had taken them all to a relative ’s house in GPE . On CARDINAL or DATE the NORP army had entered GPE . They had instructed them to put a white flag on their house to indicate that there were civilians living there and his mother had done so . The following day he had spent some time with NORP soldiers , QUANTITY from the house where he had been staying with his family . TIME he had heard some gunshots from the direction of the house but had not paid much attention to them . TIME he had returned home and had found his mother and grandmother shot dead in the house . He had informed some of the NORP soldiers about it . After that they had taken him to his father in PERSON . He could not remember whether there had been any dispute between his mother and grandmother and NORP soldiers about the LOC parked in their courtyard , which had belonged to his uncle .

On DATE the police interviewed GPE , a policeman who had carried out an inspection of the crime scene . He described how he had found the bodies of GPE and PERSON On DATE another police officer , GPE , made a note stating that on DATE he had inspected the premises of the elementary school in GPE , where he had found the following inscriptions on the walls : “ ORG , ORG DATE , GPE , CARDINALth regiment ORG ” and “ Tigers TNT No CARDINAL – Moles ” .

On DATE the NORP police lodged a criminal complaint with the NORP County State Attorney ’s ORG against unknown perpetrators in connection with the killing of ORG and ORG

On DATE the police interviewed PERSON . PERSON who said that she had not been in GPE during LOC and had no direct knowledge about the killing of GPE and ORG

On DATE a Deputy State Attorney of the NORP State Attorney ’s ORG interviewed the applicants , who repeated their previous statements . The first applicant added that in his opinion the NORP soldiers who had killed his mother and grandmother had not been those who had been the first to enter GPE because that group had treated civilians correctly .

On DATE the NORP police asked ORG about the NORP army units which had been in GPE DATE , the identity of their commanders and all their members . That request was repeated on DATE .

On DATE the first applicant asked ORG , the ORG Attorney , the GPE Attorney , ORG and the ORG Attorney ’s ORG to identify the perpetrators of the killing of his mother and grandmother .

On DATE the NORP police drew up a note on the investigation . It stated that documents about the NORP army units present in GPE in the material period ( those documents have not been submitted to ORG ) showed that on DATE at CARDINAL a.m. PERSON had been liberated by members of ORG of PERSON ( CARDINAL . domobranska pukovnija PERSON ) , under the command of Captain ( satnik ) PERSON On DATE at TIME the armoured battalion of the “ ORG ” ORG ( oklopna bojna CARDINAL . gardijske brigade “ Tigrovi ” ) under the command of Captain Lj . U. , as well as ORG of the First Guards Brigade ( CARDINAL . pješačka bojna CARDINAL . gardijske brigade ) under the command of Major PERSON , had arrived .

On DATE the following NORP army units had been in GPE : ORG of the CARDINALrd Domobran Regiment from GPE under the command of Captain PERSON and the IS-CARDINAL ( izvidnička skupina IS-CARDINAL ) patrol group comprised of the soldiers NORP , PERSON , ORG and ORG , under the command of ORG ( razvodnik ) PERSON

DATE and DATE the police interviewed several NORP soldiers who belonged to the units of the NORP army that had been in GPE on DATE and CARDINAL DATE .

ORG , the commander of ORG , said that they had entered GPE on TIME CARDINAL DATE . At the same time the ORG under the command of PERSON had been coming to GPE from the direction of PERSON . He had no knowledge of the killing of CARDINAL women in GPE . As regards the officers of ORG , Z.K. had been in command of ORG ( prva satnija ) , PERSON of ORG ( druga satnija ) and ORG ( who had died later on ) of ORG ( treća satnija ) . The brigade also had a mortar unit ( mitnica CARDINAL ) under the command of GPE , a communications squad ( desetina za veze ) led by PERSON , a medical platoon ( sanitrani vod ) headed by PERSON and an anti - tank platoon ( protuoklopni vod ) under the command of D.S.

ORG , the second - in - command of ORG , confirmed that PERSON had been the commander . The regiment had been composed of CARDINAL companies . The First and Second Companies had been under the command of ORG and ORG respectively , but he could not remember the commander of ORG . He said that owing to the passage of time he could not remember the places they had been during LOC . He had no knowledge about the killing of civilians in GPE .

Officer PERSON of the PERSON police said that he had heard about the killing of his colleague ’s wife and her mother , but had no relevant information .

GPE , the commander of ORG of Ogulin , said that that formation had comprised CARDINAL battalions . His ORG and ORG , which had been under the command of ORG , had had CARDINAL soldiers . ORG had been under the command of ORG He then described the units of ORG and named the commanders he could remember . He had no knowledge about the killing of civilians in GPE .

A.B. , the commander of a platoon of ORG , said that he and his men had spent TIME in GPE during LOC but could not say on DATE exactly . None of the soldiers in his platoon had searched for civilians in houses and he had no knowledge about the killing of GPE and ORG

ORG , the commander of the medical squad of ORG , said that his battalion had entered GPE at TIME on DATE and had stayed there for DATE . There had been no military action and he had not given any medical assistance to anyone in GPE . He knew nothing about the killing of CARDINAL women there .

Officer PERSON of the PERSON police said that during Operation Storm a NORP soldier had approached him and told him that a child in GPE needed transport . PERSON had gone with his colleague PERSON to GPE where they had found CARDINAL dead bodies and a child in a house . They had taken the child to Slunj police station to join his father , PERSON . PERSON confirmed that statement .

ORG said that he had been a policeman in PERSON during LOC and had been the one who had found the bodies of GPE and ORG

Between DATE and DATE the police conducted further interviews with NORP soldiers GPE , GPE , GPE , GPE , GPE and GPE , who all said they had no knowledge about the killing of PERSON and ORG In the same period the police also interviewed the GPE relatives GPE , GPE and GPE , who had all heard about the killing of ORG and ORG but had no relevant information about possible perpetrators .


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant , who was DATE at the time , discovered that she was in DATE of pregnancy during a gynaecological examination at ORG .

On DATE , in DATE of pregnancy according to her medical notes ( medical record no . CARDINAL ) , the applicant had an appointment with her gynaecologist , PERSON , at ORG . The medical record notes that , during the appointment PERSON issued a referral for the applicant to undergo an alpha - fetoprotein ( “ ORG ” ) test on DATE , DATE . The test checks the level of ORG in a pregnant woman ’s blood as an indicator of potential foetal abnormalities . The applicant disputes the authenticity of medical record no . CARDINAL and denies that any referral was made .

The applicant did not attend the appointment for the ORG test on DATE .

DATE the applicant regularly attended appointments with PERSON and her general practitioner .

On DATE the applicant gave birth to a daughter with PERSON ’s syndrome .

NORP The applicant was discharged from hospital on DATE . She claims that DATE she went to ORG to obtain a copy of her medical records . She was given her medical records and made a copy at the hospital , before returning them . According to the applicant , her copy of medical record no . CARDINAL contained no reference to the DATE referral for an ORG test .

On DATE the applicant complained to ORG ( “ the MADEKKI ” ) about the quality of the antenatal medical care provided by PERSON In particular , she complained that PERSON had failed to refer her for the ORG test , which would have indicated the risk of foetal abnormality .

On DATE the PERSON requested ORG to forward the applicant ’s medical records .

On DATE the PERSON interviewed PERSON explained that although the applicant had been referred for the ORG test on DATE , she had failed to attend because she had been hospitalised . Following her release from hospital there had been no point in carrying out an ORG test since she was by then in DATE of pregnancy . PERSON referred to the fact that the applicant had been referred for a genetic consultation in DATE of pregnancy . PERSON also explained that after the baby had been delivered , she had discovered that the applicant ’s eldest son had a mental illness , a fact which the applicant had concealed during her pregnancy . The applicant had further concealed the excessive alcohol consumption of her partner and father of the child .

On DATE , having examined the applicant ’s medical records and interviewed relevant doctors , the PERSON issued its opinion . It found that although the applicant had been referred for the ORG test , PERSON had failed to ensure that the test was carried out . This failure was , it said , contrary to Ordinance No . CARDINAL concerning antenatal and prenatal care ( see paragraph CARDINAL below ) . PERSON was given an administrative fine of CARDINAL NORP lati .

On DATE the PERSON informed the applicant of its finding that she had received antenatal medical care in accordance with national law , save that PERSON had failed to ensure that she had undergone the ORG test . It noted that ORG screening results could neither confirm nor exclude a congenital foetus abnormality but would rather serve as an indicator for further examinations . It also explained that the applicant bore some responsibility herself as she had failed to inform Dr L. of her eldest son ’s illness . Had PERSON been aware of the illness , she would have arranged for a medical genetic consultation in DATE of the applicant ’s pregnancy , thus ensuring a timely diagnosis . Finally , the PERSON informed the applicant of her right to apply to the law enforcement authorities within DATE of its decision if she was not satisfied with it .

On DATE the applicant officially requested access to her medical records . An approved copy was issued to her on DATE . She claims that she subsequently formed the view that DATE entry in medical record no . CARDINAL concerning her referral for an ORG test had been added at DATE .

On DATE the applicant asked ORG to investigate whether the discrepancies in the CARDINAL copies of medical record no . CARDINAL amounted to falsification of documents . She also alleged negligence on the part of PERSON In support of her allegation , she submitted the unapproved copy of her medical records which she claims to have made in DATE ( see paragraph CARDINAL above ) .

On DATE the police interviewed PERSON explained that in DATE of pregnancy she had referred the applicant for the ORG test but the test had not been carried out , for unknown reasons , because the applicant had failed to attend the appointment . PERSON referred to the applicant ’s right to refuse the test . She added that the applicant had concealed the genetic illness of her eldest son . Had his situation been disclosed , PERSON said that she would have arranged an immediate consultation with diagnosis by DATE of pregnancy . As regards medical record no . CARDINAL , PERSON explained that the entries in the record were made over an extended period of time as examination results were received and further appointments and treatment instructed . She also explained that medical record no . DATE had disappeared in DATE and was only recovered at DATE , when it was placed in the reception at ORG outside its working hours . She told the police that it was not in the interests of the medical staff to lose or conceal the record , since it meant that all the medical examinations would have to be carried out again .

On DATE the police refused to institute criminal proceedings for falsification of records or negligence . The investigators were satisfied that the applicant had been referred for the test but that she had not turned up for the appointment . The investigators also found that there were no technical means available to establish precisely the time when the contested data concerning the referral had been entered in the applicant ’s medical file .

On DATE the applicant appealed the decision . She sought the institution of criminal proceedings for falsification of documents by a group of persons . On DATE ORG quashed the decision of DATE and ordered further investigation into the disappearance of the applicant ’s medical record and the making of the contested entry .

In DATE further police investigations were carried out . ORG confirmed that it did not have the ability to establish , by forensic methods , the date on which the contested entry was made . PERSON was questioned again and confirmed the disappearance of the medical record in DATE . The applicant ’s general practitioner and nurse were interviewed . The nurse told the police that in DATE the applicant had frequently visited her general practitioner and brought medical record no . CARDINAL with her , in order to record future appointments . The general practitioner had updated the record during her visits and returned it to her . Staff of A. Hospital were also interviewed and confirmed the temporary disappearance of the applicant ’s medical record .

On DATE the police refused to institute criminal proceedings for falsification of documents by a group of persons .

On CARDINAL DATE the applicant appealed the decision . On DATE ORG quashed the decision of DATE and again remitted the complaint for further investigation . It noted that the applicant had submitted a non - approved copy of medical record no . CARDINAL and referred to the need to ascertain whether there were witnesses who could testify that the contested entry was missing in DATE when the copy was allegedly made .

On DATE , after further interviews with PERSON and the applicant ’s general practitioner , the police again refused to institute criminal proceedings . They concluded that it was not possible to determine whether the information concerning the disputed referral for the ORG test had been missing from the applicant ’s medical records in DATE .

The refusal to institute proceedings was upheld by ORG on DATE . However , on CARDINAL DATE , following an appeal by the applicant to ORG , the latter revoked the decision of DATE and instituted criminal proceedings .

On DATE the police requested forensic tests on medical record no . CARDINAL . An expert report dated DATE concluded that the medical records were not falsified but that they had been supplemented with new information over an extended period of time .

On DATE the applicant was informed that the criminal proceedings had been terminated owing to the expiry of the statutory limitation period .

Meanwhile , on DATE the applicant lodged a claim for damages against ORG . She contended that PERSON had been negligent as she had not identified the applicant as belonging to a high - risk group and had not referred her for the ORG test . The applicant also alleged that PERSON had subsequently modified the medical records in order to conceal the failure . She further claimed that PERSON had not put in place a medical care plan in respect of her pregnancy and was therefore not in a position to provide the applicant with the necessary information on her treatment , in violation of sections DATE and CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) . As a result of these failings , the applicant had been prevented from availing herself of her right to agree to or decline the ORG test . She claimed that had she known that the child had a congenital disease , she would have chosen to undergo an abortion on medical grounds . She claimed compensation for pecuniary and non - pecuniary damage , including compensation for lost wages and a lump - sum maintenance award for her daughter .

A hearing took place on DATE . The applicant ’s legal representative asked the court to hear the applicant as a witness in order for her to give evidence on the facts of the case . The court rejected the application without providing reasons . However , it granted the defendant ’s application for PERSON to appear as a witness and give oral evidence .

On DATE ORG ( PERSON ) dismissed the applicant ’s civil claim . The court held that , as it could not be proved that PERSON had falsified the applicant ’s medical records , the applicant had failed to turn up for the ORG test . It also noted that she had failed to inform PERSON of her eldest child ’s condition . It found that the applicant was not in a high - risk category merely on account of her age , and that the applicant was to blame for the fact that the ORG test was not carried out . It concluded that there was no causal link between the actions of PERSON and the birth of the applicant ’s child . Even though PERSON had been given an administrative fine for her failure to ensure that the applicant had the ORG test , this was insufficient to prove that PERSON had been at fault .

The applicant appealed . She argued that Dr. PERSON had been obliged to take all medical steps to establish whether her unborn child was healthy . Since she had not done everything required of her in order to discover the child ’s genetic abnormality in a timely manner , it had not been possible for the applicant to prevent the birth of a child with a congenital disorder . The applicant argued that the court had erred in finding that she did not belong to a risk group due to her age , since Ordinance No . CARDINAL indicated that pregnant women above DATE should have the ORG test . She also contended that the court had erred in concluding that she had been referred for the test . She maintained that the court ’s conclusion that she herself was to blame for the fact the test was not carried out was unfounded since the case file contained no evidence in that regard . Furthermore , she claimed that the court had given no reasons for relying on the medical records used by the PERSON instead of the earlier copy of the medical record that she had submitted . In any event , the applicant argued that even if she had been referred for the test , the referral was already too late as on DATE allegedly fixed for the test she was already in DATE of pregnancy . She further contended that had she refused to take the test , the doctor would have made a corresponding note in the medical record . As regards her eldest son , the applicant pointed out that PERSON had never asked her about the health of her other children and explained that her son had developed schizophrenia at DATE . She insisted that there was in her view a causal link between the PERSON failures and the birth of her child and that damages ought to be paid .

On DATE a hearing took place on DATE before ORG of ORG ( PERSON tiesas PERSON tiesu palāta ) . The applicant ’s legal representatives were unable to attend but the applicant asked the court to proceed in their absence . The applicant made submissions on her own behalf , and answered questions posed by the court . The court heard evidence from a representative of ORG , who explained the system of record - keeping at ORG and the loss of the applicant ’s medical record , and from PERSON testified that only an amniocentesis allowed an effective diagnosis of PERSON ’s syndrome . Although the risk of congenital abnormalities increased with age , the fact that the applicant was DATE was not as such an indicator that she ought to have an amniocentesis , which carried with it the risk of miscarriage . There were no objective medical indications to justify a referral for that procedure in the applicant ’s case . PERSON referred to the applicant ’s failure to disclose the condition of her eldest son and to disclose her husband ’s alcoholism .

On DATE ORG rejected the applicant ’s appeal . It agreed with the first - instance court ’s conclusion that applicant ’s allegations concerning the alteration of her medical record had not been proven , noting that the copy of the medical record submitted by her was not certified . The court also noted the PERSON ’s conclusion concerning the applicant ’s failure to inform PERSON of her eldest son ’s illness , observing that the “ mother ’s passport ” , which the applicant had at all times , drew attention to the importance of informing the doctor of any diseases suffered by existing children . It referred to PERSON evidence that , had she known of the illness , she would have ordered additional tests and examinations . The court also pointed out that LAW set out a duty on patients to comply with ORG instructions ; the applicant was accordingly under a duty to undergo the ORG test which she had been referred . The fact that there was no record in writing of her refusal to take the test was not proof of the fact that she had never been referred for it .

Finally , the ORG held that PERSON could not be held responsible for the child ’s genetic condition since no causal link could be established between the actions of PERSON and the child ’s condition . It also noted that :

“ The result of the ORG test ... could neither confirm nor exclude genetic abnormality of a foetus , but would serve as an indication for further examination .

Therefore the [ applicant ’s ] allegations that the results of the ORG test would have provided her [ with ] an opportunity to choose whether to continue with or terminate the pregnancy could not in itself serve as a basis to uphold the claim . ”

The only shortcoming in the applicant ’s medical care had been the failure to ensure that the ORG test was actually carried out . The court noted that the PERSON had already fined PERSON for this omission .

As regards the alleged falsification of medical record no . CARDINAL , it found that , since the applicant ’s medical record was missing at the time of her DATE appointment with PERSON , the latter had made her notes on a separate sheet of paper which had been added to the medical record once it had been recovered . The court noted the finding of the PERSON that the applicant had been referred for the ORG test and further recorded that the applicant did not dispute that she had attended an appointment with PERSON on DATE . It referred to the decision of the police of DATE not to institute criminal proceedings because there was no evidence that the medical record had been falsified . It therefore found that the applicant ’s account of the reason for the differences in the CARDINAL copies of her medical records had not been proven to be true .

On DATE the applicant obtained a copy of the expert report of DATE ( see paragraph CARDINAL above ) .

NORP The applicant subsequently filed an appeal on points of law . She argued that ORG had not assessed correctly whether the failure of PERSON to ensure that the ORG test was carried out had infringed the applicant ’s right to find out about any foetal abnormality . Even though the court had concluded that she had been referred for the ORG test , the judgment did not address whether the referral complied with section CARDINAL of LAW , i.e. whether she had received all the necessary information about the test ( see paragraph CARDINAL below ) . Further , the applicant submitted that the court should have applied section CARDINAL of LAW and insisted that any refusal of the treatment should have been in writing ( see paragraph CARDINAL below ) . She also submitted that the court had wrongly interpreted section CARDINAL of LAW ( see paragraph CARDINAL below ) by stating that she had been obliged to carry out the ORG , as it had not taken into account the need for free and informed consent before any medical intervention . Finally , she argued that in assessing whether PERSON actions had been wrongful , such as to give rise to damages , the court should have assessed whether the doctor had complied with the applicable rules , including the Ordinance No . CARDINAL . The court ’s conclusions as to the lack of a causal link were not compatible with the GPE , since had PERSON complied with her legal obligations , the applicant could have found out that the foetus had a genetic disease and could have availed herself of her right to have an abortion on medical grounds , thereby preventing the birth of the child . Accordingly , she maintained , the necessary causal link existed between PERSON wrongful actions and the birth of the child with PERSON ’s syndrome .

The applicant also contended that there had been a number of procedural failings before the appellate court . She alleged in particular that it had not assessed her claim for maintenance ; and that it had breached the rules in relation to assessment of evidence as it had uncritically accepted the testimony given by the doctor , had attached greater weight to the copy of the medical records submitted by the hospital than to the copy submitted by her , and had relied on the conclusions of the MADEKKI without itself verifying the facts .

On DATE the ORG of ORG dismissed the applicant ’s appeal . The full text of the judgment was made available on DATE . The ORG concluded that , contrary to the applicant ’s allegations , the appellate court had come to its conclusions about the referral for the test and the applicant ’s failure to attend the appointment with due regard for a patient ’s right to receive information . Section CARDINAL of LAW was not applicable to this case as the applicant had simply not shown up for the test . The ORG further noted that applicant ’s arguments were based on the premise that she had not been referred to the test whereas the appellate court had found that a referral had been made . Her complaints of procedural flaws were rejected as unfounded

Meanwhile , on CARDINAL DATE the applicant asked the ORG of ORG to reopen the civil proceedings on the basis of newly discovered evidence , namely the expert report of DATE which she had recently seen for the first time ( see CARDINAL and DATE above ) . On DATE the ORG dismissed the request .