CASE OF BUHANIUC v. THE REPUBLIC OF MOLDOVA

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

Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

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

On DATE general elections took place in GPE . On CARDINAL and CARDINAL DATE large crowds gathered in the streets to protest against alleged electoral fraud . CARDINAL of persons were arrested on DATE and thereafter .

The applicant was arrested in TIME of DATE and on DATE was sentenced by a court to CARDINAL days’ administrative detention . According to the applicant , he was punched in the eye by a plain - clothes police officer during his arrest and then subjected to ill - treatment in the GPE police station and subsequently at ORG ( “ the ORG ” ) . He was hit by groups of CARDINAL persons , both in uniform and plain clothes , taken through a “ death corridor ” in which officers lined up and kicked or hit each victim as he or she passed through the corridor while being taken to or from the police station or , especially , the ORG .

He was also hit on both ears simultaneously ( a form of torture known as “ the telephone ” ) , and struck on the head with fists and rubber sticks , all while his hands were handcuffed behind his back . He was also forced to keep his hands up for long periods of time while being hit periodically . He lost consciousness several times as a result of the ill - treatment .

The applicant was also allegedly held with CARDINAL other persons in a damp humid cell measuring QUANTITY , where he had no access to daylight or any means of determining the time of DATE or the date ; he also had no access to the outside world , his relatives , a lawyer or a doctor .

No water was provided to him during the first TIME of his detention . Thereafter dirty water was distributed in unhygienic plastic bottles to be used by everyone in the cell . The applicant was subsequently diagnosed with hepatitis of an unknown origin . No food was provided . In the congested damp cell he had no opportunity to sleep for DATE . There was no toilet in the cell and access to the toilet outside the cell was allowed at random and only after subjecting the person to humiliation .

Psychological ill - treatment was also allegedly used : the applicant was threatened with a lengthy term of imprisonment , with rape and death . He was subjected to interrogation by several persons simultaneously and was forced to sign blank papers .

On DATE the applicant was seen by a doctor , who found a haematoma on his left eye .

On DATE the applicant complained to the military prosecutor of ill - treatment by the police .

On DATE the applicant was examined at the “ LOC ORG , a non - governmental organisation financed by ORG and member of ORG of ORG ( ORG ) . On DATE it issued an “ Extract from the medical file ” ( Extras din PERSON ) concerning the applicant ’s examination . He appears to have undergone detailed medical tests and examinations by various medical specialists . According to the document , the applicant was suffering from , inter alia , the consequences of a head injury , which included intracranial hypertension syndrome and post - traumatic stress disorder , as well as a post - traumatic ear condition .

NORP The prosecutor in charge of the case interviewed the police officers in charge of the applicant ’s arrest , who declared that they had not used force against him . On CARDINAL DATE the prosecutor decided not to initiate a criminal investigation into the applicant ’s allegations as he found that there was no evidence that a crime had been committed . On DATE the applicant complained to ORG , noting that he had been sent a copy of the prosecutor ’s decision only on DATE . On DATE ORG confirmed the decision of CARDINAL DATE .

On DATE the applicant challenged in court the decisions of CARDINAL DATE and DATE . On DATE the investigating judge at ORG annulled the CARDINAL decisions and ordered that a supplementary investigation be carried out . The court found that the ORG decisions had been based only on the statements of the police officers accused of ill - treating the applicant . Moreover , while one of the prosecutors had found that force had been used to apprehend the applicant , which could explain any injuries on his body , the arresting officers had denied the use of any force .

On an unknown date prior to CARDINAL DATE a formal criminal investigation into the applicant ’s allegations was initiated .

On DATE the applicant was officially recognised as a victim in the investigation of the alleged crime . He described the circumstances of his alleged ill - treatment and participated in a photograph identity parade , but did not recognise any of the persons in the photographs .

On DATE the prosecutor in charge of the case suspended the investigation on the basis that no suspect had been identified .

Following the ORG ’s communication of the present application to the respondent Government on DATE , on CARDINAL DATE ORG recommended to ORG that the proceedings in respect of the applicant ’s complaints should be reopened . The prosecutor considered that the decision of CARDINAL DATE had been groundless and drew up a list of CARDINAL investigative actions be taken in the new investigation of the complaint . This list included actions such as hearing PERSON , who had been arrested together with the applicant ; hearing the persons detained together with the applicant during the events of DATE ; hearing the doctor who had examined him at the GPE police station ; obtaining various medical evidence concerning the applicant ’s state of health prior to and after his detention in DATE , including the report of the “ LOC centre ; examining the documents in the file concerning the accusations against the applicant ; and organising cross - examinations involving both the applicant and the officers who had arrested him on DATE .

On DATE the doctor who had examined the applicant at the GPE police station was heard as a witness . He declared that he had noted all the injuries present on the applicant ’s body . He added that a police officer had been present in the room during the examination , but had not put pressure of any kind on the applicant .

On DATE CARDINAL officers were officially declared suspects in the case and were interviewed by a military prosecutor . The parties did not inform the Court of any further developments in this regard .

NORP The relevant non - Convention material is summarised in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .


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)

On the dates set out in the appended table domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken by ORG authorities in their favour . However , the applicants were unable to obtain the enforcement of the decisions in due time .


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

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

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

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

The applicant was born in DATE and lives in GPE .

NORP In DATE PERSON asked the national authorities to restore his property rights to a plot of land in LOC , that had originally belonged to his deceased wife ’s father . He gave only his own name in his restitution request , failing to mention the fact that after his spouse ’s death he had married again in DATE , to ORG , or that there were any other successors to whom the property rights could be restored .

M.G. died in DATE .

On DATE ORG property rights were restored in respect of QUANTITY of land in GPE . The decision stated that PERSON had passed away and that it should be served on his heir .

NORP In DATE ORG authorised the applicant , who was the husband of ORG granddaughter , to act on her behalf in the matter of the inheritance from PERSON and to represent her before the national authorities .

ORG asked ORG to establish as a legal fact that she was the owner of ORG property for the purposes of inheritance . The claim was signed by the applicant . During the proceedings before ORG , where the applicant was present , ORG children contested ORG ’s right to inherit the property , including the plot of land . They argued that the land did not belong to MONEY , but to his deceased wife ’s father . Nevertheless , on DATE the ORG established as a legal fact that ORG had become the owner of the property , including the plot of land in question , after ORG death .

In DATE the applicant received a certificate which stated that ORG had inherited ORG property , including the land in question .

On DATE ORG sold the QUANTITY of land and associated buildings to the applicant and his wife for CARDINAL NORP litai ( LTL – MONEY ( ORG ) ) in total . The price of the land itself was LTL MONEY ( approximately EUR CARDINAL,CARDINAL ) .

NORP On DATE a prosecutor started court proceedings and asked ORG to annul the order which had restored ORG property rights , the part of ORG will concerning the land and the purchase agreement on the grounds that ORG had not had the right to seek the restoration of ownership of the land in question ( see paragraphs CARDINAL - CARDINAL below ) . The applicant submitted that the prosecutor had missed the thirtyday time - limit for lodging such a complaint .

On DATE ORG granted the prosecutor ’s application in part . It annulled the property restitution order of CARDINAL DATE and the parts of the will and purchase agreement concerning the land . As regards the time - limit , the court held that the prosecutor had started court proceedings on DATE . However , he had not received a letter about an act that was allegedly contrary to the public interest until CARDINAL DATE , when he had also had to ask for additional documents from the authorities , which he had only received on DATE . The court held that the timelimit had not been missed by much and decided that it was not an obstacle to examining the case on the merits . The court decided to apply the rules on restitution and to return the land to the ORG . The court held that ORG had not had any property rights to restore because the land in question had belonged to his deceased wife ’s father , while PERSON , a widower at the time , had remarried in DATE , to ORG That meant he had not fallen within the scope of persons to whom property rights could be restored in accordance with domestic law ( see paragraphs CARDINAL , DATE and DATE below ) . The court noted that ORG had failed to mention that he had remarried and an employee of ORG confirmed that if ORG had provided that information he would not have been able to claim the property . The court also noted that the applicant had been authorised to represent ORG before the national authorities in the inheritance procedure and that his wife was CARDINAL of ORG granddaughters . He should therefore have known that restoring those property rights to ORG had been unlawful . The court thus declared that the applicant and his wife were not acquirers of the property in good faith .

As a result of the decision of ORG ( see paragraph CARDINAL above ) , on DATE the plot of land was returned to the ORG .

On DATE title to QUANTITY of land was restored to GPE , one of the original owner ’s heirs . The plot included the land in question , apart from CARDINAL ares under the buildings owned by the applicant and his wife , which were excluded . CARDINAL ares were restored to GPE in the adjacent plot of land .

The applicant and his wife appealed , and on CARDINAL DATE ORG upheld the decision of the court of first instance . It held that the applicant and his wife had acted in bad faith and that the guarantees for owners who had acquired property in good faith were not applicable . The applicant and his wife argued that the prosecutor had missed the time - limit of DATE to lodge a complaint , but the court held that the prosecutor had only become aware of an act that was contrary to the public interest on DATE and had started court proceedings on DATE . The time - limit had therefore not been missed .

On DATE ORG dismissed an appeal on points of law by the applicant as not raising any important legal issues .

Article CARDINAL of the Law on the Procedure and Conditions for the Restoration of Citizens’ Ownership Rights to Existing Real Property ( Įstatymas „ Dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų “ ) , enacted on DATE and amended on numerous occasions , provided that when the owner of property died , title could be restored to the person ’s children , including adopted children , parents , including adoptive parents , or any surviving spouse . After the death of the former owner ’s child , ownership rights could be restored to that person ’s spouse or children if they were citizens and permanent residents of GPE .

On DATE , the Government approved Resolution no . CARDINAL on the “ Order for Execution of the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property ” ( PERSON įstatymo PERSON piliečių nuosavybės teisių QUANTITY nekilnojamąjį turtą atstatymo tvarkos ir sąlygų ” įgyvendinimo tvarka ) , which provided that when the owner of property died , title could be restored to the person ’s children , including adopted children , parents , including adoptive parents , or any surviving spouse , if they were citizens of GPE , had a document proving the citizenship and were permanent residents of GPE .

On DATE the Seimas ( ORG ) enacted a new law on restitution , the PERSON on the Restoration of Citizens’ Ownership Rights to Existing Real Property ( PERSON nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas – hereinafter “ the PERSON on Restitution ” ) , which repealed the DATE law . LAW provided that ownership of existing real property could be restored to a spouse , parents , including adoptive parents , and the children , including adopted children , of an owner who had died without making a will . It could also be restored to the spouse or children , including adopted children , of an owner ’s deceased child , including an adopted child .

Article CARDINAL § CARDINAL of the Law on Restitution provided that decisions by the national authorities concerning the restitution of existing real property were subject to appeal within DATE .

On DATE , the Government approved Resolution no . CARDINAL on the “ Order for the Execution of the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property ” ( PERSON piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymo įgyvendinimo tvarka ) , which provided that spouses who had not remarried had the right to have property rights restored to them if the marriage had ended because the owner of the property had died and the owner ’s child was also dead ( Point CARDINAL ) .

Article CARDINAL § QUANTITY of the Law on Land provided that agricultural land contained plots of land , that were used of could be used for producing agricultural products ; plots of land that were built upon by the private houses and farm houses of the landowner , if they were not delimited as separate plots of land ; yards ; plots of land , suitable for transforming into agricultural land ; plots of land that had buildings used for producing agricultural products and plots of forest approved by the Government , provided that they are not delimited as separate plots , as well as other nonagricultural plots of land that are in between the above mentioned plots of land .

Article CARDINAL of the Civil Code establishes the presumption of knowledge of the law and provides that ignorance or insufficient understanding of laws does not absolve anyone of application of sanctions and does not justify the failure to comply with requirements of the law or inadequate compliance with them . This was confirmed by ORG ( for example , decisions of DATE ( no . CARDINALK-CARDINAL - DATE ) ; CARDINAL DATE ( no . CARDINALK-CARDINAL - DATE ) ) .

ORG has held that laws are public and every responsible person can find out about his or her rights and obligations . Ignorance of laws and failure to show interest in one ’s rights and obligations is unreasonable , and such person can not justify him or herself that he or she does not know the law ( for example , decisions of CARDINAL DATE ( no . ORG - CARDINAL/CARDINAL ) ; DATE ( no . ORG ) ; DATE ( no . ORG - CARDINAL/CARDINAL ) ) .

Article CARDINAL of the Civil Code provides that any transaction that fails to comply with mandatory statutory provisions is null and void . When a transaction is declared null and void , each party is required to restore to the other party everything that he or she has received by means of that transaction ( restitution ) . Where it is impossible to restore the assets received in kind , the parties are required to compensate each other in money , unless the law provides for other consequences as a result of the transaction ’s being declared void .

Article CARDINAL § CARDINAL of the Civil Code provides that possession in bad faith comes about when an owner knew or ought to have known that he or she had no right to become the owner of a possession or that another person had more rights to the possession in question .

Article CARDINAL of the Civil Code provides that an owner has the right to claim a possession when it is owned illegally by someone else .

According to LAW , a person who acquired property in bad faith has the right to require the lawful owner to provide compensation for any necessary expenses incurred for the property in question from the time the lawful owner had the right to income from it .

ORG has held that a person who acquired property in bad faith has the right to require the lawful owner to provide compensation for any necessary expenses incurred for the property in question from the time the lawful owner had the right to income from it ( see decision of CARDINAL DATE ( no . CARDINALK-CARDINAL - CARDINAL/CARDINAL ) ) .

Article CARDINAL of the Civil Code provides that restitution is to take place where a person is bound to return to another person the property he has received either unlawfully or by error , or as a result of the transaction in which the property was received being annulled ab initio , or as a result of the obligation becoming impossible to perform because of force majeure . In exceptional cases , a court may modify the method of restitution or refuse restitution altogether where it would impose an undue and unfair burden on CARDINAL party and , accordingly , bring undue advantage to the other party .

Article CARDINAL of the Civil Code provides that third parties acting in good faith who in a transaction for valuable consideration acquire property subject to restitution can rely on that transaction against a person who claims restitution . Third parties acting in good faith who in a transaction without valuable consideration acquire property subject to restitution can not rely on that transaction against a person who claims restitution if the timelimit for such a claim has not been exceeded by the latter . Any other actions performed in favour of a third party acting in good faith may be relied on against a person who claims restitution .

Article CARDINAL § CARDINAL of the Civil Code provides that civil liability is a pecuniary obligation by which CARDINAL party has the right to require compensation and the other party has to pay compensation .

In accordance with LAW , prosecutors can bring a claim in order to protect the public interest in the cases established by law .

Article CARDINAL § CARDINAL ( CARDINAL ) of ORG provides that a prosecutor , after having received a request or any other information about violations of state interests or ORG rights , prepares documents necessary to start civil proceedings if the state proprietary interests had been breached and the authorities had not taken any actions to eliminate the violations .

ORG has held that the restoration of property rights is a public interest ( for example , decisions of DATE ( no . ORG ) ; of DATE ( no . ORG - CARDINAL/CARDINAL ) ; CARDINAL DATE ( no . CARDINALK-CARDINAL - CARDINAL/CARDINAL ) ) .


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in DATE and before his conviction lived in Izhevsk .

According to the applicant , on DATE the police carried out a search of the applicant ’s flat in connection with the murder of a lawenforcement officer , which took place during TIME DATE .

On DATE and DATE the police interviewed the applicant , in the presence of the applicant ’s lawyer , about the circumstances of the murder case under investigation . No suspicions were raised against the applicant .

At TIME on DATE the applicant was apprehended on the street in Izhevsk and taken to the Ustinovskiy district police station of ORG ( GPE PERSON г. PERSON – “ Izhevsk police station ” ) . He was allegedly beaten and coerced into confessing to having committed the murder and to signing a record of his surrender and confession ( явка с повинной ) .

According to that record , at TIME on DATE in office no . CARDINAL at Izhevsk police station , a police officer , PERSON , obtained from the applicant a confession to the crime , in accordance with LAW of LAW . In particular , the record stated that at DATE the applicant had been drinking alcoholic beverages in the company of a certain PERSON after work . At an unspecified time after TIME he left PERSON ’s flat . On his way home he entered a nearby house to urinate . There he saw a man who made a rude remark about the applicant ’s behaviour . The man was also drunk . They began to fight , in the course of which the applicant hit the man several times on the head with a knife handle , and also punched and kicked him . The latter fell down the stairs . When the applicant left the man was still lying on the ground floor . The record further stated that the confession had been handwritten by the applicant himself without any coercion on the part of police officers , and that the applicant had been informed of LAW ( the right not to give self - incriminating statements ) , which he had understood .

The applicant furthermore wrote a similarly worded confession addressed to ORG .

At TIME on DATE a record of the applicant ’s arrest was drawn up . He was formally assigned the status of a criminal suspect and was informed of all his rights , including the right to remain silent , the right to a lawyer and the right not to incriminate himself . The record contained the applicant ’s handwritten note to the effect that he accepted his arrest , as he had committed a murder on DATE . The record further contains the applicant ’s request for access to his lawyer .

Later on DATE , DATE , the applicant was provided with a legal - aid lawyer and questioned as a suspect . During the questioning the applicant retracted his confession , asserting that it had been given as a result of coercion and in the absence of a lawyer . He consistently repudiated his confession throughout the ensuing proceedings .

On DATE the applicant was made to undergo a forensic medical examination , which revealed no injuries on his body aside from a scar on the edge of his hairline dating back DATE ( forensic medical examination report no . CARDINAL ) .

On DATE the applicant was remanded in custody and transferred to the Izhevsk SIZO-CARDINAL remand prison .

On DATE charges of murder were brought against the applicant .

On DATE the applicant lodged a complaint with the Ustinovskiy district prosecutor ’s office of ORG , alleging that he had been ill - treated .

On DATE an investigator from the Ustinovskiy district prosecutor ’s office issued a decision not to initiate criminal proceedings against the police officers who had allegedly ill - treated the applicant .

On DATE the criminal case against the applicant was submitted to ORG for trial .

On DATE the trial against the applicant commenced .

NORP Before the court the applicant denied committing the murder and reaffirmed that his confession had been given under pressure from police officers and in the absence of his lawyer .

On DATE ORG convicted the applicant of murder and sentenced him to CARDINAL years’ imprisonment . The court based the conviction on the following evidence :

- statements by a police officer , PERSON , who had been involved in the investigation and who had submitted that ( i ) in the course of the investigation it had been determined that the murder had been committed by the applicant ; and ( ii ) the latter had been apprehended and brought to Izhevsk police station , where he had voluntarily confessed to having committed the murder of PERSON and had written a statement of surrender and confession ( явка с повинной ) , describing the details of the committed crime ; no violence had been exerted on the applicant ;

- statements by a police officer , ORG , involved in the investigation of the murder , who submitted that ( i ) in the course of the investigation it had been determined that the crime had been committed by the applicant ; ( ii ) in DATE the latter had been brought to the police station , where he had confessed to the murder ; and ( iii ) a statement of surrender and confession had been drawn up in which the applicant had described in detail the circumstances under which he had committed the murder ;

- statements by a police officer , ORG , who submitted that ( i ) on DATE he had participated in the inspection of the scene of the murder of PERSON ; ( ii ) it had been established that the applicant had been involved in the crime ; ( iii ) in DATE the applicant had been brought to Izhevsk police station , where he had confessed to the murder ( his confession had been recorded in the statement of surrender and confession ) ; and ( iv ) no violence had been applied to the applicant .

- a statement by a police officer , PERSON , who had participated in the inspection of the crime scene on DATE he submitted that ( i ) during the check it had been established that a man nicknamed “ Gunya ” [ the applicant ] could have committed the crime ; ( ii ) the applicant had been apprehended by the police ; ( iii ) the applicant had been interrogated at TIME on DATE by PERSON himself ; ( iv ) in the course of the interrogation the applicant had confessed to having committed the murder ; and ( v ) no violence had been applied to him ;

- statements by a police officer , GPE . , who submitted that he had learned from police officer PERSON that the applicant had confessed to having committed the murder of PERSON ;

The above statements were found to be confirmed by the applicant ’s statement of surrender and confession of CARDINAL DATE and by statements by independent witnesses in the case , specifically :

- statements by an anonymous witness , “ Akulov ” , to whom the applicant had supposedly confided about the murder on DATE ; during the trial “ Akulov ” had been placed in a separate room , and questions from the parties had been asked through a court bailiff ; the parties had heard the witness ’s answers by means of a radio communication device with acoustic shielding ;

- statements by a witness , PERSON , who had been detained together with the applicant at Izhevsk police station during TIME of DATE , and whom the applicant had supposedly told about his having committed the murder of a police officer ;

- statements by a witness , PERSON , who submitted that ( i ) he had worked with the applicant as a painter and decorator since DATE ; ( ii ) they had been drinking alcoholic beverages after work on DATE until TIME , after which they had each gone home ; ( iii ) the following morning at TIME he had picked the applicant up and gone to work with him ; ( iv ) he had found out about the murder of PERSON on the evening of CARDINAL DATE from a certain PERSON and later from the police ; ( v ) the applicant had had his right arm in plaster since DATE , which had not prevented him from working ; ( vi ) that the applicant had had a folding knife , which he had lost in DATE ; and ( vii ) that the applicant had been nicknamed “ Gunya ” ;

- statements by a witness , PERSON . , the applicant ’s colleague and neighbour , who submitted that ( i ) he had been drinking alcoholic beverages with the applicant and PERSON until TIME on DATE , following which he had left while the applicant and PERSON had stayed on ; ( ii ) he had found about the murder on DATE from the police ; ( iii ) he had known that the applicant was suspected of that murder ;

- statements by other witnesses with no interest in the outcome of the case ;

- the applicant ’s handwritten statement of DATE addressed to the Ustinovskiy district prosecutor ’s office describing the circumstances of the murder ;

- the record of the applicant ’s arrest , in which the applicant noted that he accepted his arrest , as he had committed a murder ;

- records of forensic biological examinations , which did not exclude the possibility that the traces of blood on the applicant ’s coat could have been the victim ’s ; the conclusions of those forensic biological examinations were confirmed by the record of the crime - scene examination and the record of the forensic medical examination of the victim ’s corpse ;

- records of forensic chemical examinations of the fibres discovered at the crime scene , the origin of which could not be excluded as being from the clothes worn by the applicant at the time of the murder ;

- the record of the forensic medical examination , which concluded that the applicant ’s having a plastered right arm did not exclude the possibility of him administering active purposeful actions with that arm ;

- the record of the applicant ’s forensic psychiatric examination .

The court dismissed the applicant ’s allegation that his confession had been obtained through ill - treatment , referring to the statements made by the police officers and to expert report no . CARDINAL , which had not recorded any injuries on the applicant ’s body .

The applicant appealed against the conviction . In his statement of appeal he submitted , in particular , that his confession was inadmissible evidence , as it had been obtained under duress and in the absence of a lawyer .

On DATE ORG of GPE dismissed the appeal . It endorsed in full the trial court ’s decision concerning the admissibility of the statement of the applicant ’s surrender and confession . ORG held , in particular , that the law did not require the presence of a lawyer at the moment of giving a confession .

On DATE the applicant was transferred to correctional colony IK-CARDINAL of GPE to serve his sentence .

On DATE the applicant was transferred to the NORP remand centre of FAC with ankle - joint oedema , skin erosion and fever .

On DATE the applicant was transferred to the surgical unit of that facility for medical treatment .

On DATE the applicant was transferred to penal institution LIU-CARDINAL of the Republic of GPE ( a medical penal establishment designed for the treatment and detention of drug addicts , alcoholics , and PERSON and tuberculosis - infected prisoners ) , where he underwent compulsory treatment for drug addiction until DATE .

According to the applicant , there had been a high percentage of ORG detainees in the facility , some of whom had worked with the applicant at the facility ’s sewing workshop . The applicant believed , therefore , that he had faced a serious risk of contamination via the working utensils ( for example , scissors and sewing needles ) .


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

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

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

In DATE an investigation was opened in respect of the applicant on suspicion of murder . He was remanded in custody during the investigation from DATE to CARDINAL DATE .

Following his release from custody , the applicant became unavailable to the NORP authorities , and on DATE ORG ( Županijski sud u GPE ) , as the competent trial court , ordered his trial in absentia .

On DATE ORG found the applicant guilty as charged and sentenced him in absentia to MONEY imprisonment . The judgment became final on DATE .

On DATE a judge responsible for the execution of sentences at ORG ordered that the applicant should start to serve his prison sentence . Given that at the time the applicant was still at large , the judge ordered that a warrant be issued for his arrest .

On the basis of the arrest warrant , the applicant was arrested in GPE and on DATE he was extradited to GPE , where he immediately started to serve his prison sentence .

DATE following his extradition , the applicant requested ORG to reopen the proceedings conducted in his absence ( see paragraph CARDINAL below ) . He relied on LAW , which provided for the automatic reopening of proceedings conducted in absentia at the request of the convicted person .

A CARDINAL - judge panel of ORG granted the applicant ’s request for reopening of the proceedings on CARDINAL DATE . The decision became final on DATE .

On DATE ORG discontinued the applicant ’s prison sentence on the ground that the reopening of the proceedings had been granted and that therefore the execution of the sentence had to be stayed , as required under LAW ( see paragraph CARDINAL below ) .

In the meantime , on DATE the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u PERSON ) had requested ORG to order that the applicant be remanded in custody under LAW ) of LAW ( risk of absconding ) pending the retrial .

In connection with that request , on DATE a CARDINAL - judge panel of ORG heard the applicant and his lawyer . They argued , in particular , that the applicant had not sought to avoid trial and that his detention should be replaced by the application of a less restrictive measure , such as bail , which could be effected by the seizure of his mother ’s house and of documents .

On DATE ORG accepted the request of ORG and ordered the applicant ’s pre - trial detention under LAW ) of LAW ( risk of absconding ) . The relevant part of the decision reads :

“ Having considered the [ available ] evidence , this panel has found that the accused PERSON received an indictment [ from the competent prosecutor ] on DATE ... , that the GPE - baranja ORG informed ORG that the accused PERSON was absent from his place of residence [ in GPE ] as he had gone away in DATE and was [ at the time ] allegedly in GPE , as stated by his mother . Furthermore , it was established that the accused PERSON had been found guilty by the above - mentioned final judgment of ORG of the offence of murder ... for which he had been sentenced to DATE imprisonment . It was also established that the accused PERSON ... had been arrested [ in GPE and GPE ] because a sentence - execution judge of this court ordered that he should start to serve his prison sentence , and therefore the objection that the general conditions for ordering detention under LAW have not been met is unfounded . The final judgment adopted in the criminal proceedings conducted in the absence of the accused , by which he was found guilty on charges of murder and sentenced to DATE imprisonment , represents a reasonable suspicion that the accused PERSON committed the offence of murder ... The fact that he fled , given that the order for his pre - trial detention and the arrest warrant remained futile and there was no possibility for the police to bring him [ before the court ] for a hearing , and that he was arrested only on the basis of [ an arrest warrant ] for the execution of the prison term to which he had been sentenced , suggests the existence of grounds for ordering pre - trial detention under LAW ) of LAW ; that is to say , special grounds justifying a risk that , if at large , the accused might abscond and thus hinder the proper conduct of these criminal proceedings .

As already stated above , the accused PERSON received the mentioned indictment by which he is charged with murder ... It follows [ from the case file ] that he was also detained . This suggests that the accused knew that the criminal proceedings at issue had been pending against him and that he had been charged with a serious criminal offence . He [ nevertheless ] left his residence and the territory of GPE and was arrested on the territory of a country where he did not have residence , namely GPE , while he himself stated that he had residence in GPE . All these circumstances as well suggest that there is a risk that the accused might again abscond and thereby hinder the termination of the reopened proceedings at issue .

In addition , as the panel of this court has found that the conditions for ordering detention in respect of the accused PERSON under LAW ) of LAW have been met , [ it considers that ] the measure of detention is necessary in order to avert the risk of absconding , which could not be achieved by bail or the alternative measures suggested by the accused and his defence lawyer . This is particularly true given the circumstances and severity of the offence at issue , and the fact that [ the accused ] is also a national of GPE and that he himself stated that he had no residence in GPE , which means that he could very easily leave the territory of GPE . ”

The applicant appealed to ORG ( PERSON ) , arguing that the indictment had not been served on him but on his brother , who had been a minor at the time , and that he had left GPE for personal reasons . He offered his NORP and NORP passports and his mother ’s house in GPE as bail to guarantee that he would not abscond . The applicant also contended that the decision of ORG lacked the relevant reasoning concerning the possibility of his conditional release .

ORG dismissed the applicant ’s appeal as ill - founded on DATE . The relevant part of the decision reads :

“ Contrary to the appeal arguments , ORG as the second - instance court finds that the first - instance court correctly established that the defendant should be remanded in custody under LAW ) of LAW .

Reasonable suspicion that the defendant committed the offence [ of murder ] follows from the final judgment by which he was found guilty and sentenced to DATE imprisonment , which had been adopted after a trial in absentia and in respect of which a retrial was granted . The general requirement for detention has therefore been met .

Furthermore , it should be noted that the defendant , although aware that criminal proceedings were pending against him ( he was questioned by an investigating judge , he was detained from DATE to CARDINAL DATE , and he received the indictment ) , left the territory of GPE and thereby became unavailable during the proceedings conducted before ORG . He was arrested only after a sentence - execution judge issued an order for his arrest for the execution of the prison sentence , and [ the arrest ] was effected on the basis of an international arrest warrant in GPE , although he stated that his residence was in GPE .

All these circumstances , in the view of ORG as the second - instance court , suggest that there is a fear that the defendant , who is also a national of GPE , if at large , could abscond and thereby hinder the course of the criminal proceedings . This in particular follows from his previous behaviour , the fact that he was unavailable to the judicial authorities for DATE and that he is again being tried for a serious criminal offence for which he had been found guilty in absentia and sentenced to DATE imprisonment ...

The appeal arguments of the defendant that he did not know that the criminal proceedings at issue were pending as he had not received the indictment are unfounded because the material from the case file suggests the opposite . The case file contains signed delivery notices which demonstrate that he duly received the indictment . He was also questioned before an investigating judge concerning the offence of which he was later found guilty , and for which he had also spent some time in pre - trial detention . There is therefore no doubt that he knew about the criminal proceedings pending against him .

Moreover , the appellant is wrong in contending that a fundamental procedural omission occurred in that the impugned decision is not sufficiently reasoned in respect of the possibility of applying bail or some other alternative measure . The first - instance court provided sufficient and clear reasons for considering it necessary to order pre - trial detention under LAW ) of LAW and why the same purpose could not be achieved by bail or any other alternative measure ; and this second - instance court fully endorses those reasons . ”

On DATE the applicant again requested that his pre - trial detention be replaced by bail or an alternative less restrictive measure . At the hearing held on DATE he reiterated his request .

ORG dismissed the applicant ’s request on DATE and extended his detention under LAW ) of LAW ( risk of absconding ) , reiterating its previous reasoning .

On DATE , following a retrial , ORG upheld the applicant ’s conviction in absentia , finding him guilty of the offence of murder and sentencing him to DATE imprisonment . It was also decided on DATE that the applicant should remain in detention pending a final judgment .

The applicant appealed against that judgment to ORG . On DATE ORG quashed the judgment and remitted the case to ORG for re - examination on the grounds of the existence of procedural flaws .

At the same time , ORG extended the applicant ’s detention under LAW ) of LAW ( risk of absconding ) , reiterating its previous reasons .

On DATE the applicant lodged a constitutional complaint before ORG ( Ustavni sud PERSON ) , challenging the decision on his pre - trial detention . He argued in particular , his detention was disproportionate and should be replaced by bail or an alternative less restrictive preventive measure .

On DATE ORG dismissed the applicant ’s constitutional complaint as ill - founded , endorsing the reasoning of the lower courts . That decision was served on the applicant ’s representative on DATE .

On DATE , having reheard the case , ORG upheld the applicant ’s conviction in absentia , finding him guilty of the offence of murder and sentencing him to DATE imprisonment . The applicant was remanded in custody pending a final judgment .

That judgment was upheld by ORG on DATE and it thereby became final . On DATE the applicant challenged it before ORG and the proceedings before that court are still pending .


Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The first applicant , PERSON ( application no . CARDINAL/CARDINAL ) , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in ORG .

The second applicant , PERSON ( application no . CARDINAL/CARDINAL ) , is a NORP national who was born in DATE and lives in GPE a.d . GPE . She was represented before ORG by PERSON , a lawyer practising in GPE .

The third applicant , PERSON ( application no . CARDINAL/CARDINAL ) , is a NORP national who was born in DATE and lives in GPE a.d . GPE . She was represented before ORG , a lawyer practising in GPE .

The facts of the cases , as submitted by the applicants , may be summarised as follows .

The first applicant is the mother of the other CARDINAL applicants .

The first applicant was married to ORG , who was the father of the other CARDINAL applicants .

R.R. disappeared in TIME DATE and subsequently did not reappear ; neither did his car , which had disappeared the same night .

On DATE the first applicant reported ORG missing .

The investigations had initially been terminated without any results . They were reopened by the ORG police in DATE .

On DATE the applicants and the second applicant ’s fiancé , ORG , were taken to the police station . The applicants’ house was searched DATE , without any evidence being found . All CARDINAL applicants were questioned DATE , first as witnesses and after TIME as suspects . They were represented by counsel from DATE on .

When being questioned on DATE , the first applicant confessed that ORG had come home drunk in TIME DATE and she had pushed him during an argument . As a consequence ORG had fallen down the stairs . She and ORG had carried ORG ’s corpse away . On DATE she added that she had wiped away a pool of blood , carried the corpse to ORG ’s car and submerged both the car and the corpse in a pond near the village of Irgertsheim TIME . On DATE she withdrew these confessions . During subsequent questioning she repeatedly stated that ORG had not come home TIME .

The second applicant stated in her first interview , on DATE , that her father had not returned home TIME . DATE she changed her statement and alleged that her mother had accidentally pushed her father and he had fallen down the stairs . On DATE , during a video - taped reconstruction of the crime scene with the police , she stated that her fiancé alone had killed her father with a club . On DATE she was told by a police officer that there was a rumour that her father ’s corpse had been fed to the dogs . DATE she stated that her mother had also hit her father with a club . On DATE she stated that it had been her fiancé alone who had killed her father , cut the corpse into pieces and fed it to the dogs . After she had withdrawn all confessions , on DATE she incriminated herself , alleging that she had killed her father with a hammer , and her fiancé had burnt the corpse . She withdrew that confession as well , alleged sexual abuse by her father and repeated some of the other versions .

The third applicant stated in her first interview , on DATE , that she did not know whether her father had returned that night or not . After a police officer alleged that her mother and the second applicant ’s fiancé had confessed to the killing , she complained of sexual abuse by her father that TIME , after which her mother and father had had a row and her mother had pushed him down the stairs . On DATE she declared that the second applicant ’s fiancé and her mother had killed her father with a club . On DATE she changed her version and alleged that a hammer had been used . On DATE she again alleged abuse by her father that night . As a consequence , the second applicant ’s fiancé had pushed him down the stairs and disposed of the corpse along with the car . On DATE she changed her story once more , alleging that the hitting had taken place on the staircase and that her father ’s corpse had been cut into pieces and fed to the dogs . Afterwards she denied having seen anything at all . Finally she withdrew all confessions .

The second applicant ’s fiancé , ORG , stated at his first interview that the first applicant had killed ORG with a club and that he had helped her to dispose of the corpse and the car in a pond near the village of ORG . He repeated this version several times until DATE . Then he alleged that he had hit ORG with a club , carried the corpse into the cellar , cut it into pieces , boiled the head in a pot and fed the pieces to the dogs . Later on he alleged that the first and the second applicants had participated in hitting ORG On DATE he changed his confession , and alleged that he alone had hit ORG in the neck . In DATE he withdrew all confessions .

After the withdrawal of their confessions , all the applicants alleged that they had made their confessions because the police officers had put pressure on them .

The applicants were in pre - trial detention throughout the criminal proceedings .

On CARDINAL DATE ORG convicted the first applicant and the second applicant ’s fiancé PERSON of manslaughter and sentenced the first applicant to DATE and QUANTITY months’ imprisonment . The second and third applicants were convicted of having aided and abetted the manslaughter by omission and were sentenced to DATE and CARDINAL months’ and DATE and CARDINAL months’ imprisonment respectively . ORG was convinced that ORG had returned home drunk with his car that TIME , had been killed by the first applicant and the second applicant ’s fiancé , and had then been cut into pieces and fed to the dogs . The car had been destroyed in a scrap baling press . The second and third applicants had witnessed the killing without helping ORG court ’s findings with regard to the events of the crime were based on the testimony of the police officers who had interviewed the applicants and the second applicant ’s fiancé during the investigations . At that time neither ORG ’s corpse nor the car had been found .

As regards the applicants’ criminal liability ORG relied in detail on CARDINAL expert reports . The first report concerned the applicants’ and ORG ’s mental health . It asserted that the first applicant had an intelligent quotient of CARDINAL and she therefore suffered from reduced mental capacity on the threshold of severe mental retardation ( Debilität i m Grenzbereich zur GPE ) , the second applicant had an intelligence quotient of CARDINAL which could be classified as a learning disability ( unterdurchschnittliche ORG i m Bereich der GPE ) , and the third applicant had an intelligent quotient of CARDINAL and she therefore suffered from reduced mental capacity as well ( Debilität ) . The second applicant ’s fiancé , ORG was found to have an intelligence quotient of CARDINAL . The second report concerned the question whether their reduced mental capacity diminished or excluded their criminal liability , which was answered in the negative .

The applicants appealed on points of law . On DATE ORG dismissed their appeal .

The applicants and ORG served their sentences : the first applicant until DATE , the second applicant until DATE and the third applicant until DATE .

On DATE ORG ’s corpse was found , sitting in his car at the PERSON barrage of the FAC in GPE a.d . GPE . A commissioned expert came to the conclusion that ORG had not been killed by blunt force to his head , backbone or rib cage . The corpse , which was in rather good condition considering the fact that it had been in the water for DATE , did not show any appearance of having suffered external force .

In DATE the applicants and ORG requested the reopening of the proceedings and claimed monetary compensation for wrongful detention on remand and imprisonment after trial .

On DATE the ORG rejected the request to reopen the proceedings . On the applicants’ and ORG appeal against this decision , ORG granted their request to reopen the proceedings .

On DATE ORG reopened the proceedings and subsequently held several hearings . The proceedings against the third applicant were separated from those of the first and second applicants and ORG due to her physical condition ( see paragraph CARDINAL below ) .

On DATE ORG acquitted the first applicant and ORG of manslaughter and the second applicant of having aided and abetted manslaughter by omission .

In part B of the judgment ORG assessed the first and second applicants’ mental health . It relied on CARDINAL expert opinions , which confirmed those obtained in the first set of proceedings , namely that the first applicant had an intelligence quotient of CARDINAL and the second applicant of CARDINAL and both therefore suffered from reduced mental capacity .

Part E of the judgment contained the reasons for the acquittal . The court expressed its conviction that ORG had arrived home at TIME The court was unable to establish what exactly had happened afterwards , but it was certain that one , some or all of the accused had acted in a way which had finally caused ORG ’s death during TIME . The court was unable to establish which of the accused had participated in these actions , how ORG ’s death had been caused and how the corpse and the car had come to be disposed of at the barrage of the GPE . As nothing pointed to suicide or death by violence on the way home , in the acquitting court ’s view ORG ’s death must have occurred after he arrived home . The fact that ORG had returned home had been confirmed by the applicants and ORG during the first set of proceedings .

ORG considered that the applicants’ and ORG ’s statements could be used as evidence as there was nothing to indicate that prohibited methods of questioning had been used . In so far as the police officers had confronted the applicants in a few cases with incorrect facts , their method of questioning had to be considered as a minor attempt to mislead which did not interfere with the applicants’ right to silence . The fact that the applicants had been interrogated as witnesses at the beginning of their first interview , and not immediately as suspects , did not lead to the inadmissibility of the statements as evidence either . Furthermore , throughout the proceedings neither the applicants nor their counsel had claimed specifically that the police officers had used illegal pressure during questioning . The general allegation in this regard was unsubstantiated and nothing in the course of the proceedings indicated that the police officers had used leading questions to obtain confessions . Furthermore , the videotaped reconstruction of the crime scene , which the court had viewed , had not given any impression of psychological pressure on the applicants’ free will when talking about the crime .

In CARDINAL separate sections subsequent to the acquitting part of the judgment ORG also issued the decision concerning costs and expenses and the decision concerning compensation . The decision concerning costs and expenses was titled part F and the decision concerning compensation part ORG ordered the treasury to pay the costs of the proceedings but declined to reimburse the ORG legal costs and expenses in accordance with LAW of LAW ( see paragraph CARDINAL below ) . It further dismissed the applicants’ monetary compensation claims with regard to their pre - trial detention and their imprisonment in accordance with LAW ( PERSON über die PERSON für Strafverfolgungsmaßnahmen , see paragraphs DATE below ) .

The court found that these claims were to be rejected because the applicants had caused both their detention on remand and their imprisonment by culpable negligence . It argued that the applicants had acted with culpable negligence because they incriminated themselves by making either deliberately wrong statements , or statements which could be proved neither true nor false .

As to the confessions of the first applicant , the court held that the first applicant ’s statement of DATE , that she had lowered ORG ’s corpse and the car into a pond near the village of ORG , had been untrue because both the corpse and the car had been found at a barrage of the GPE . Furthermore , in DATE the first applicant had incriminated herself during the first set of proceedings when stating that ORG had returned home on TIME of his disappearance , while in DATE she had reported him missing . Thus she herself had created a strong suspicion that she had killed ORG As a result , she had caused the indictment and the judgment by culpable negligence . Regarding the question of whether her reduced mental capacity discharged the first applicant of culpable negligence , the court observed that she had been able to follow the court proceedings and had been capable of answering questions during the police investigations in DATE after thorough reflection . Her mental capacity was not such that she could not easily foresee that her statements would lead to the strong suspicion that she had killed ORG

In so far as on DATE the second applicant had admitted to having hit ORG ’s skull with a hammer , ORG found that this self - incrimination had been untrue because the expert who examined ORG ’s corpse had come to the conclusion that ORG ’s skull had been intact . As a consequence , the second applicant had created a strong suspicion against herself concerning ORG ’s death . Furthermore , the court found that the second applicant had incriminated herself by her statements when questioned on DATE , CARDINAL , DATE and DATE , even though the court was not able to determine whether these statements had been true or false . Despite her reduced mental capacity , ORG was convinced that in DATE the second applicant had been able to foresee that her statements would create a strong suspicion against her , because most of her self - incriminating statements had been very grave , repeated and given after having consulted her counsel . In the court ’s view , the commissioning of an expert on grounds of her reduced mental capacity had not therefore been necessary . Lastly , nothing indicated that these statements were made in response to unlawful questioning .

On CARDINAL DATE the third applicant was also acquitted of having aided and abetted manslaughter by omission for the same reasons as set out in ORG judgment of CARDINAL DATE . ORG found that she had an intelligent quotient of CARDINAL and that she therefore suffered from reduced mental capacity . As regards the reimbursement of costs and compensation , the third applicant was awarded monetary compensation solely for DATE of her detention on remand . The acquitting court found that the third applicant caused both her detention on remand and her imprisonment by culpable negligence . Her statement of DATE , that ORG had killed ORG with a hammer and that the corpse had been cut into pieces and fed to the dogs , had been untrue because the corpse had been found at the barrage . Therefore , the third applicant had also created a strong suspicion against herself concerning ORG ’s death . Regarding her allegation that she had been sexually abused by ORG on TIME of his disappearance , the court could not determine whether this statement was true or false . However , since she had withdrawn these statements later on this was of only minor importance , because she had equally caused her indictment and imprisonment by culpable negligence . The court found that the third applicant ’s reduced mental capacity did not discharge her of culpable negligence . Despite this disability she had been able to express herself clearly and had incriminated herself gravely and repeatedly while advised by counsel . Nothing indicated that she had not been able to understand the importance and meaning of her statements . Furthermore , she made her statements in the presence of her counsel .

The applicants appealed against ORG CARDINAL decisions to refuse monetary compensation and the reimbursement of legal costs and expenses .

On DATE ( concerning the third applicant ) and DATE ( concerning the first and the second applicants ) ORG rejected the appeals against the refusal of monetary compensation for their imprisonment . The court pointed out that , when assessing whether the criminal proceedings and the convictions had been caused by culpable negligence , the point of view at the time of the first set of proceedings was decisive . A refusal of monetary compensation under LAW was limited to cases where the person concerned had acted with gross negligence . It was therefore not sufficient to draw a suspicion on oneself . The person concerned must have substantially influenced the criminal proceedings or the conviction by his conduct .

Applying these principles to the applicants’ cases , ORG fully endorsed the legal reasoning of ORG in part G of the judgment concerning compensation . The alleged use of psychological pressure during the police questionings did not change this assessment . Even if there might have been such a situation , both the constancy and severity of the self - incrimination and the fact that the applicants had been represented by counsel during their various statements had to be taken into account . Furthermore , in view of the expert opinions commissioned in DATE and during the proceedings at issue nothing indicated that the applicants’ criminal liability had been diminished or excluded at the time they had made their statements . ORG noted that during the hearings before ORG the court had received advice both from a psychologist and a psychiatrist . There had been no reason on the basis of the related request to take further evidence to obtain an additional psychological expert opinion in respect of the ORG statements during the first set of proceedings .

In the decision dated DATE concerning the denial of compensation for the first and the second applicant ORG additionally mentioned that ORG had respected the applicants’ right to be presumed innocent as guaranteed by LAW . It noted that ORG had been permitted to voice a remaining suspicion against the applicants , as long as it clearly stated that any remaining suspicion did not amount to a finding of guilt . These requirements were fulfilled because ORG , in stating that it was convinced that CARDINAL or all of the accused had caused ORG ’s death without being able to establish which of the accused and in what way , had not commented on the applicants’ guilt but on whether the evidence before it left any suspicious circumstances .

On DATE ORG further rejected the ORG appeal against the refusal of reimbursement of legal costs and expenses , fully endorsing ORG reasoning in its decision of CARDINAL DATE while referring to part F of ORG judgment .

The first applicant complained of a violation of her right to be heard regarding both decisions of ORG . The second applicant lodged a motion to be heard and statement of objections ( NORP ) against ORG refusal to pay monetary compensation . The third applicant lodged a motion to be heard against the refusal of monetary compensation and statements of objections against the refusal to reimburse legal costs . All requests were rejected by ORG .

NORP The first applicant lodged a constitutional complaint with ORG against ORG decisions denying compensation and reimbursement of costs and expenses . In so far as they have submitted , the second and third applicant only lodged constitutional complaints with ORG against ORG decisions refusing the reimbursement of legal costs and expenses . All the applicants alleged that ORG decisions violated their right to be heard , their right to be presumed innocent and their right to an effective remedy .

On DATE ORG declined to consider the second applicant ’s constitutional complaint concerning the refusal of reimbursement of legal costs without providing reasons ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG declined to consider the first applicant ’s constitutional complaints concerning both the refusal to reimburse legal costs and the refusal to pay monetary compensation , without providing reasons ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG declined to consider the third applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provides , inter alia , that where the indicted accused is acquitted , his necessary costs and expenses shall be borne by the ORG .

Article CARDINAL § CARDINAL of LAW reads as follows :

“ ( CARDINAL ) The indicted accused ’s necessary expenses shall not be charged to the ORG if the indicted accused caused the preferring of public charges by filing criminal information in which he claimed to have committed the offence with which he was charged . The court may dispense with charging the indicted accused ’s necessary expenses to the ORG if

he caused the preferring of public charges by falsely incriminating himself with regard to material points or in contradiction to his later statements or by concealing material exonerating circumstances despite having made a statement in response to the accusation , or .... ” .

Compensation for damage caused , inter alia , by wrongful prosecution , detention on remand or imprisonment is covered by LAW ( PERSON über die PERSON für Strafverfolgungsmaßnahmen ) .

Pursuant to section CARDINAL of that Act , a defendant is notably entitled to compensation for damage incurred by a criminal conviction if the conviction is quashed in re - opened proceedings .

According to LAW , a person who has been held in detention on remand may claim compensation if he was acquitted or if the proceedings against him were otherwise discontinued .

Article CARDINAL § CARDINAL of the LAW provides that compensation under that LAW is ruled out if the accused caused the prosecution deliberately or by culpable negligence ( vorsätzliche oder grob fahrlässige PERSON ) . The latter is established when it has to be said of an accused that he himself prompted the criminal proceedings by behaving in a way which failed to take into account the elementary fact that such behaviour would obviously lead to criminal proceedings .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney

The applicant was born in DATE and lives in GPE .

She owned a plot of land which measured QUANTITY m. and was situated in the centre of GPE . She also owned CARDINAL houses and a garage situated on the plot . It appears that the applicant shared her household with her CARDINAL children .

Before DATE the applicant , without permission , built on her plot of land a pavilion ( շվաքարան ) measuring QUANTITY . m which she used as a venue for trade . The pavilion featured in the ownership certificate issued to the applicant on DATE as a “ half - ruined construction ” .

On DATE the Government adopted Decree no . PERSON , approving the expropriation zones of the real estate situated within the administrative boundaries of LOC of GPE to be taken for ORG needs , having a total area of CARDINAL sq . m. It appears that the applicant ’s plot of land fell within CARDINAL such zone .

On DATE the applicant applied to a notary office with a request to donate her property to her CARDINAL children and seeking to make that transaction official .

The notary office refused this request , with reference to Government Decree no . PERSON , stating that the applicant ’s property was situated in an expropriation zone .

The applicant contested this refusal before the courts . It appears that on DATE the GPE and ORG of GPE dismissed her claim . The applicant lodged an appeal .

On DATE ORG granted the applicant ’s claim and ordered the notary office to formalise the transaction . It found that the refusal was in violation of the law since the applicant ’s request derived from LAW . Besides , Government Decree no . PERSON did not envisage any limitations on the type of transaction that the applicant sought to conclude . No appeal was lodged against this judgment , which entered into force .

On an unspecified date the applicant applied to ORG ( “ SRER ” ) , seeking to divide her property into CARDINAL parts and to transfer ownership to her children . She also requested that her title be registered in respect of the pavilion .

It appears that on DATE the ORG refused both requests . As regards the refusal of the second request , it appears that the ORG referred to LAW no . ORG

In the proceedings before the ORG and ORG of GPE the representative of the ORG submitted that the applicant ’s request had been refused because her property was situated in an expropriation zone and included unauthorised constructions . Its division would be contrary to Government Decrees nos . PERSON and CARDINALN.

On DATE ORG decided to dismiss the applicant ’s claim . It found that the applicant was the sole owner of the property in question and it was groundless to seek its division or sever any part of it . As regards the registration of ownership in respect of the pavilion , this claim was similarly groundless since the applicant ’s plot of land was situated in an expropriation zone , while the procedure prescribed by Government Decree no . CARDINAL-N , pursuant to its paragraph CARDINAL , did not apply to unauthorised constructions built on plots of land falling within such expropriation zones .

On CARDINAL DATE the applicant lodged an appeal .

On DATE ORG upheld the judgment of ORG . ORG found that the applicant had applied to the ORG with a request to have her property divided into CARDINAL parts , which had been refused because the property was situated in an expropriation zone and included unauthorised constructions . Its division into CARDINAL parts would be contrary to Government Decrees CARDINAL . PERSON and DATE As regards the refusal to register her title in respect of the pavilion , ORG recapitulated the findings of ORG .

On DATE the applicant lodged an appeal on points of law . In her appeal she argued that ORG had ignored the findings made in its final judgment of DATE . Furthermore , the fact that the plot of land was situated in an expropriation zone could not serve as a basis for restricting her rights as an owner which she enjoyed under LAW . She further argued that the pavilion in question was immovable property and the refusal to register her title in its respect deprived her of the right to receive compensation at the time of expropriation .

On DATE ORG dismissed the applicant ’s appeal on the same grounds .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-d - Minors);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and lives in GPE .

On DATE the applicant , aged CARDINAL , was admitted to the Open Door children ’s crisis centre in GPE . Her placement was ordered as a protective measure under LAW by the Pleven municipal director of social assistance , at the request of the applicant ’s mother , who had claimed to be unable to look after her daughter .

NORP In a decision of CARDINAL DATE a criminal bench of ORG ( Районен съд ) confirmed the applicant ’s placement and extended its validity for a further DATE . In its reasoning the court found that the conditions for the placement of a minor in a specialist institution were satisfied , namely that the child ’s parents were unable to provide her with adequate care and that she was living in a dangerous social environment , as she associated with “ men identified as delinquents ” . Lastly , it stated that no member of the applicant ’s family was able to take on responsibility for her upbringing .

On DATE , finding that the conditions for the applicant ’s return to her family environment were not satisfied , the municipal director of social assistance ordered the extension of her placement in the centre . On DATE a civil bench of ORG in turn confirmed the measure and extended it for DATE .

On DATE the local committee for combating juvenile antisocial behaviour ( “ the local committee ” ) asked ORG to order the applicant ’s placement in a correctional boarding school . On DATE a criminal bench of ORG held a hearing , following which it gave a decision imposing a less severe educational measure on the applicant , namely “ a ban on meeting and making contact with certain individuals ” . In its reasoning the court specified that placement in a correctional boarding school was liable to have a negative impact on the child ’s psychological and social development , given the “ unfavourable environment offered by that type of institution ” . It added that following the expiry of her placement in the Open Door centre , it would be appropriate to admit the applicant to another institution regulated by LAW in order to keep her away from the people who had forced her into prostitution .

On DATE the local committee sent ORG a new proposal for the applicant ’s admission to a correctional boarding school under LAW . It argued that the applicant did not have a favourable family environment and that , in particular , her father was serving a prison sentence and her mother had trouble assuming her parental responsibilities . This had caused the applicant to run away from home and develop a circle of friends including both adults and juveniles who were identified as “ delinquents ” and had allegedly incited her to engage in immoral conduct , such as the provision of “ sexual services ” . Lastly , the local committee noted that the applicant had also run away twice from the children ’s crisis centre and had behaved aggressively towards the staff .

On DATE a criminal bench of ORG held a hearing . The applicant ’s mother was present , having been summoned to appear at the hearings , and asked to have a lawyer officially appointed to represent her daughter in the proceedings . The applicant also asked to have a lawyer appointed . The court granted their request . It heard evidence from the applicant , her officially appointed lawyer , a representative of the local committee , an inspector from the child protection team ( Детска педагогическа стая ) , a representative of the district prosecutor ’s office , a representative of the municipal child protection department and CARDINAL social workers from the children ’s crisis centre where the applicant was living . The inspector from the child protection team stated that the applicant engaged in prostitution and had been found offering prostitution services on a motorway near GPE , QUANTITY from her home town . The CARDINAL social workers from the children ’s crisis centre pointed out that that factor had served as a ground for placing her in the centre as a protective measure for a child at risk . They added that after her admission to the centre , the child had remained in contact with the people who had incited her to engage in prostitution despite the steps that had been taken to protect her . In the social workers’ opinion , the applicant ’s family environment was unsuitable for her . She came from a large family where the mother did not exert any parental control . The mother did not have a job and her partner drank and was violent towards her and her children . The mother had also stayed at the children ’s crisis centre with CARDINAL of her other children . After intensive psychological and social counselling , a positive development had been noted in the applicant and there were plans to find different accommodation arrangements for her . However , the social workers added that by the time of the hearing the applicant ’s situation had worsened as she did not follow the rules in place , came back late from school or was brought back by the police when she failed to return , and continued to associate with individuals known to the police , to engage in sexual relations and to behave aggressively towards the staff . She had attended a series of talks on prevention of “ lover boy”-type human trafficking but had not been receptive to the protective measures recommended . The social workers expressed the opinion that the applicant faced a strong risk of being driven into prostitution and that the arrangements in place at the crisis centre did not afford her the necessary protection . In their view , such protection would only be provided in a secure centre with a restrictive regime . Lastly , the representative of the local committee stated that CARDINAL educational measures had already been imposed on the applicant , including strict monitoring by a supervisor , the ban on associating with certain individuals and the warning recommending placement in a correctional boarding school . He viewed those measures as insufficient .

NORP The court also obtained welfare reports . The applicant stated that she did not wish to be admitted to a correctional boarding school and preferred to remain in the children ’s crisis centre . The officially appointed lawyer called for the adoption of less severe educational measures . The representatives of the district prosecutor ’s office and of the municipal child protection department supported the proposal by the local committee . The representative of the municipal child protection department stated that during the hearing all the safeguards laid down in LAW had been observed . In his opinion , the possibilities for the child ’s upbringing in the crisis centre had been exhausted , the risk of her renewed involvement in human trafficking was very high and she was unaware of this . Accordingly , the measure of placement in a correctional boarding school was in fact in her interests .

Later on DATE ORG gave a judgment ordering the applicant ’s placement in the correctional boarding school in ORG ( “ the ORG school ” ) , a village QUANTITY away from LOC . In its reasoning the court held that despite the judicial decision of DATE in which a compromise solution had been adopted for the applicant , namely the confirmation and extension of her placement in the children ’s crisis centre , she was still failing to abide by the institution ’s internal rules , was not returning to the centre by the designated time after school , was in contact with individuals identified as “ delinquents ” and was still behaving rudely and aggressively towards the social workers at the centre . It noted that , in the absence of adequate parental control , the applicant had developed serious antisocial habits and that her placement in a children ’s crisis centre no longer had the intended educational and preventive effect on her behaviour . In the court ’s view , the applicant no longer displayed any willingness to abide by the rules of society , or even those of the institution in which she was living , and it was therefore advisable to remove her from her circle of acquaintances who were harming her personal development , and to provide her with enhanced educational support in order to eradicate her negative behavioural traits . The court noted that educational measures had already been imposed on her , but they had not produced a positive result . It concluded that the measure of admission to a correctional boarding school was necessary not only for her own benefit but in the interests of society .

The applicant , represented by her lawyer , appealed against that judgment . She challenged the measure imposed on her , arguing in particular that the court had not specified its duration , that her mother had not been given a hearing by the first - instance court and that she herself had not committed any criminal acts .

In a final judgment of DATE a criminal bench of ORG upheld the first - instance court ’s decision . In its reasoning it held that the law did not oblige the court to hear evidence from the parents – in this instance the applicant ’s mother DATE and that the applicant ’s other complaints were unsubstantiated and ill - founded .

On DATE the applicant attempted to commit suicide and was admitted to the toxicology department of ORG . According to a medical certificate dated DATE , she had taken QUANTITY paracetamol tablets and QUANTITY NORP tablets and was in a fragile state . After her stomach was pumped , the effects of the intoxication were brought under control .

On DATE the applicant was taken to the ORG school . She was still there at the time of the most recent information submitted to the ORG , on DATE .

Regarding life at the school , the applicant submitted in her application that the level of teaching was much lower than at her previous institution . In DATE prior to her application , CARDINAL pupils had obtained the secondary - school leaving certificate , and none at all in DATE or DATE . CARDINAL pupils had been awarded the certificate in DATE with an overall average mark of CARDINAL out of CARDINAL , the minimum pass mark being CARDINAL . The applicant added that in DATE and DATE the pedagogical council had not given any positive assessments of pupils’ behaviour or school results , meaning that no proposals for the end of a placement had been submitted to ORG .

The applicant also asserted that she had continued to be threatened with forced prostitution by her former contacts after being admitted to the ORG school . On DATE she had attempted suicide for the second time , as part of a group with CARDINAL other girls , by ingesting chemical substances . She had then been taken to hospital for DATE . There had been other suicide attempts at the school .

The applicant further submitted that her telephone conversations were monitored by a supervisor . For that purpose , a loudspeaker had been attached to the telephone and switched on during each conversation .

In addition , because of the significant number of violent incidents at correctional boarding schools , the prosecutor ’s office on DATE ordered an inspection of all secure educational institutions , including the ORG school . The results of the inspection are not known .

When submitting their observations on the admissibility and merits of the application , the ORG included a report dated DATE by the head of the ORG school about the applicant ’s situation . According to the report , during her previous placement in the Open Door centre , the applicant had been aggressive towards the staff , had encouraged other girls to engage in prostitution and had run away on CARDINAL occasions ( DATE ) . The report also stated that she had unashamedly admitted to having been sexually active since DATE and that she provided “ sexual services ” in return for payment .

The report mentioned , in addition , that the applicant did not have a favourable family background and that she was left unsupervised , which explained why she had previously run away and led a vagrant lifestyle .

According to the report , the ORG school offered an educational environment with experts qualified to work as teachers or supervisors in accordance with the requirements of ORG and ORG . The school curriculum and the courses followed in all specific subjects had been developed and approved in line with the ORG ’s standard procedures . The applicant had been deficient in many areas and the teachers had worked with her on a CARDINAL - to - CARDINAL basis as well as during lessons .

The file does not include a copy of the individual development plan that was supposed to have been drawn up at the time of the applicant ’s admission to the school and updated DATE . However , according to the report , the plan indicated that she was unaware of the risks she ran on account of her “ erratic sexual relations ” , that she did not question the consequences of such acts and that she was not ready to live independently . It added that she was naïve , easy to manipulate , impulsive , emotionally fragile and prone to dishonesty .

The report went on to state that the individual plan as updated on CARDINAL DATE noted a positive change in the child ’s behaviour . Although she did not apply herself consistently , she had nevertheless shown some interest in schoolwork . The individual plan had recommended that she step up her efforts to acquire knowledge on an ongoing , in - depth basis .

NORP The report also noted that at the end of the DATE , the applicant had achieved an average mark of QUANTITY out of CARDINAL and had therefore moved up to the next class , that she had also been awarded a certificate as a qualified seamstress and that she would be receiving a similar mark for DATE .

With regard to the applicant ’s telephone conversations , the report explained the applicable rules and stated that she had not been “ deprived of telephone contact with her mother ” or subjected to any restrictions on visits from her family , even though these had often taken place outside the times specified in the school ’s internal rules . In addition , the applicant had never received any letters or parcels from her family . She had gone on home leave CARDINAL times during DATE , from DATE to CARDINAL DATE , from DATE to CARDINAL DATE , from DATE to DATE , from DATE to DATE , and from DATE to DATE . Each time , the applicant had returned late to the ORG school .

NORP The report also stated that according to information from the police , the child had been suspected of stealing a mobile phone and jewels from a house on DATE . On being questioned by the police , she had handed over the items in question of her own accord .

Lastly , the report noted that the school ’s committee on preventing the risks of assault and harassment of juveniles had not received any information to suggest that the applicant had been “ sexually exploited ” within the school itself .

CARDINAL reports issued in DATE and DATE by ORG for ORG include a summary of the findings of an assessment of the operation of the CARDINAL correctional boarding schools in GPE , including the CARDINAL in ORG . They indicate that these schools had a total capacity of CARDINAL places and that in DATE there were CARDINAL children attending them . There were CARDINAL girls at the ORG school , all of whom had been admitted under LAW .

The reports also note that there is a high pupil turnover rate during DATE because of the admission of juveniles on the basis of a placement order and because of their departure , in most cases on reaching the age of majority ( DATE ) or on the expiry of the statutory maximum duration of the placement . During DATE , CARDINAL children ran away from the schools and CARDINAL left them following a positive DATE assessment by the pedagogical council . During DATE , CARDINAL children had a positive assessment and were therefore able to leave the correctional boarding schools . During the DATE , there were no instances of children leaving the schools following a positive assessment . As regards the results achieved across all secure educational institutions in GPE , the reports indicate that in DATE , PERCENT of pupils were awarded a vocational qualification , PERCENT successfully completed their secondary education up to DATE PERCENT successfully completed their secondary education up to DATE . PERCENT of pupils failed to complete their education . The DATE report mentions a low success rate among pupils , with average marks of CARDINAL out of CARDINAL . According to the reports , these figures point to a problem as to the effectiveness of educational and rehabilitative measures , and even raise questions as to whether “ such measures exist in practice ” .

The reports further state that , in accordance with the applicable legislation , each correctional boarding school has a team responsible for educational and psychological assessment of pupils and a team of supervisors responsible for educational and rehabilitative support . The teams draw up DATE individual plans for pupils , which in most cases are set out in a standardised form . Objectives relating to learning , education and development are general in nature and do not include any specific activities tailored to the individual needs , abilities , age and interests of the children concerned . The DATE report is particularly critical of the prevalence of serious incidents involving suicide attempts or assaults on other pupils , and deplores the fact that no provision is made for follow - up action in the individual plans of the pupils concerned so that consideration can be given to the reasons for their actions and to their psychological state .

In addition , the reports note that the staff of the institutions concerned have undergone training covering matters such as alternative education methods for children in difficulty , development of their potential for autonomy and catering for individual needs . With regard to the ORG school in particular , the teaching and support staff are subject to external educational supervision . The reports nevertheless conclude that the number of people employed to run extracurricular activities is insufficient , although the children ’s wide - ranging needs and their vulnerability suggest that educational activities should be arranged in small groups . They also criticise the lack of any programme to foster closer relations between children and their families .

Two types of problems are highlighted . The first type concerns the school curriculum and the second concerns the programme for social integration and rehabilitation .

Regarding schoolwork , the reports note , among other things , that illiteracy levels are a cause for concern , particularly as children of a wide range of ages and abilities are grouped together in the same class . A large number of pupils are unable to read or write on their arrival at the schools , and the curricula taught do not allow them to redress their shortcomings and make progress . Furthermore , many children with behavioural difficulties also encounter problems at school and the development of their ability for effective learning and independent work is impaired . These children often run away , do not attend lessons regularly and have insufficient contact with adults .

As far as the programme for social integration and rehabilitation is concerned , the reports state that , in addition to staff shortages , the existing groups of CARDINAL or CARDINAL children in difficulty can not be effectively supervised , the activities on offer do not follow an appropriate methodology for vulnerable children , and no arrangements are made at the institutions to encourage contact between the children and their families , a shortcoming identified as a cause of aggressive behaviour .

Lastly , the DATE report recommends in particular : ( a ) a general reform of the status of the institutions in question and of their operation , through the inclusion of alternative educational and preventive methods ; ( b ) the introduction and development of units for preventing deviant behaviour , and their involvement as soon as children display the first signs of such behaviour ; ( c ) shorter placements , with more emphasis on social rehabilitation and psychological support for children than on teaching ; ( d ) returning the children in question to the ordinary school system , including in schools in their home area , rather than keeping them apart in specialist institutions , through an intensive individual integration scheme managed by teams of educational experts ; ( e ) the introduction of programmes allowing young people to acquire vocational skills ; ( f ) instilling an atmosphere of cooperation with families ; ( g ) a reform whereby local committees for combating juvenile antisocial behaviour would no longer have a decisive role in taking educational measures and such decisions would be taken by a specialist judge alone ; ( h ) abolition of punishments for juvenile antisocial behaviour ; ( i ) abolition of criminal penalties for children DATE and their replacement by exclusively social and protective measures , applicable only in exceptional cases ; ( j ) admitting children DATE to specialist institutions only where there is a social need or a need for protection ; and ( k ) closure of the institutions in question , subject to the introduction of alternative protective and judicial measures in legislation and practice .

It appears that , following the DATE report by ORG , ORG and ORG undertook to reform the secure institutions for juveniles in order to ensure that the system was entirely focused on the child and offered an individually tailored approach . Measures were subsequently put forward in an action plan for the implementation of the national policy strategy on juvenile justice for DATE . Among the measures envisaged were : the repeal of ORG and the introduction of a new LAW for children in conflict with the law , with the aim of offering a wide range of social , educational and learning services to children in difficulty .