No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-b - Access to relevant files);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in DATE and lives in GPE .

The facts of the case may be summarised as follows .

The applicant is an ethnic NORP . In DATE she arrived in GPE from GPE and started working at an insurance company . In DATE she went to a mosque where she made the acquaintance of GPE and PERSON . CARDINAL young NORP women who had converted to ORG .

NORP In DATE the applicant was stopped on the street by CARDINAL policemen , allegedly for an identity check . She was then taken to the police station to have her identity verified . In the meantime she was dismissed from work on the grounds of her unauthorised absence . According to the applicant , she was released from the custody of police DATE upon the intervention of certain PERSON , who was also an ethnic NORP and a police officer in the organised crime division of the GPE police department .

In DATE helped the applicant to be reinstated at work . He also found a flat for her , where he visited her on several occasions . The applicant shared that flat with PERSON and PERSON . The flat was located in a dormitory block which belonged to the police department . It was equipped with secret videotaping and audiotaping device . The police put the applicant under surveillance because she was suspected of affiliation with a terrorist group related to the NORP insurgency movement . ORG authorised the use of a secret surveillance device in the flat from CARDINAL DATE until DATE .

On TIME the applicant was stopped by a police patrol for an identity check as her physical appearance allegedly matched the profile of a suspect in a wanted persons notice . The applicant immediately telephoned A. , who briefly spoke to the police officers who had stopped her . The applicant was then taken to the police station because the official registration of her stay in GPE had expired , which constituted an administrative offence under NORP law .

At the police station , the applicant was informed that she had been apprehended ( задержана ) . Her bag was searched by a female police officer ORG in the presence of CARDINAL attesting witnesses , PERSON and PERSON , and her fingerprints were taken . The record of the personal search showed that the search of the applicant lasted from TIME until TIME Following the personal search , ORG discovered QUANTITY packages of an unknown substance wrapped in aluminium foil inside the applicant ’s bag . The substance , together with the inner lining of the applicant ’s bag and the pockets of her jacket , was taken for forensic examination . The forensic examination report stated that the applicant ’s fingerprints were taken at TIME The police did not test the applicant ’s hands for residue from the substance ; neither did they search for her fingerprints on the packages found in her bag . Later on the same day the applicant was arrested on charges of terrorism and questioned by the police . A criminal investigation was opened .

On DATE an expert examination of the substance found in the applicant ’s bag was carried out . The examination report showed that the substance contained QUANTITY grams of ORG , an industrial explosive prepared on the basis of hexogen . In the course of the examination the explosives were destroyed . The examination of the applicant ’s bag and the lining of the pockets of her jacket revealed the presence of hexogen .

The police searched the flat where the applicant lived with PERSON and PERSON . and seized a note handwritten by the applicant . The note criticised NORP policy in GPE , glorified suicide bombers , preached the way of jihad , and spoke harshly of NORP . The police also found several photographs of an escalator in the PERSON shopping centre in the centre of GPE .

A transcript of the conversations on the video tapes recorded at the flat showed that the applicant had been proselytising ORG to PERSON discussing her hatred for NORP and the necessity of “ holy war ” against them , and telling them about the camps of the NORP insurgents in the GPE .

A. was questioned by the investigator at the request of the applicant during the pre - trial stage . A. testified that at DATE , at the order of his superiors , he had established a relationship of trust with the applicant , who had also introduced him to PERSON and ORG A. further stated that with the support of the police department he had helped the applicant to find housing . She had moved into the flat in the dormitory block together with PERSON and PERSON . On DATE the applicant had called him because she had been stopped by the police patrol . He had advised her to obey the orders of the police officers and to follow them to the police station .

On DATE the applicant received a copy of the case file for review . The applicant was charged with preparing an act of terrorism ( an explosion ) in the PERSON shopping centre and inciting PERSON and PERSON . to commit an act of terrorism .

On DATE ORG commenced the trial of the applicant . The applicant was represented by CARDINAL lawyers , GPE and S.

At the trial the applicant pleaded not guilty to the charges against her . She testified that on DATE after the police patrol had driven her to the police station , she had first been taken to a room where a police officer , PERSON , had been filling in some papers . He had told her that she had been apprehended and that her fingerprints would be taken . She had left her jacket and her bag in that room . Another police officer , PERSON , had then taken her to another room , where a further police officer , PERSON , had taken her fingerprints using ink , after which she had gone to a bathroom to wash the ink off her hands . When she had returned to the first room , she had been informed that she would be searched in the presence of CARDINAL attesting witnesses PERSON and PERSON The police officer had searched the applicant ’s bag and discovered CARDINAL packages wrapped in aluminium foil which had not belonged to her . The applicant stated that her fingerprints had been taken before and after the search , and that only the second episode had been recorded .

The applicant further stated that the police had questioned her in the absence of a lawyer , and had then decided to detain her . Furthermore , the applicant testified that she had been told to sign a record of her questioning , on pain of ill - treatment . In DATE she had been beaten by the policemen who had questioned her . However , she had continued to deny her involvement in any terrorist activity .

The applicant stated that the packages found in her bag had not belonged to her , that the police had planted them in her bag and that she had never incited PERSON and PERSON . to commit a terrorist attack . When the prosecutor asked her whether she had noticed that her rather small bag had become heavier than it had been before the personal search , the applicant stated that she had not noticed anything conspicuous about her bag before her search .

She further stated that CARDINAL photos of the escalator that had been seized from her flat had been taken by her . However , she had been taking photos of random people in the shopping centre in question and not of the escalator and she had done so for recreation .

The applicant admitted writing the note that had been seized from the flat but stated that she had copied its text from the Internet because she had liked it and had simply wanted to have a copy of it . The applicant ’s lawyer argued that her words had been misinterpreted and that there had been nothing in them that demonstrated her link to any terrorist activity . She stated that the applicant ’s bitter perception of the situation in GPE was absolutely natural for someone who had been living in a war zone since childhood and that her words should have been analysed more carefully .

V. testified at the trial that she and PERSON . had first met the applicant at a FAC in DATE . They had become friends and had started frequenting NORP chats and surfing pro - insurgency web - sites together . After a while , they had decided to form a religious community ( dzhamaat ) to study ORG and live together . In their conversations the applicant had glorified terrorism and had approved of suicide bombings and the methods and targets of the NORP insurgents . The applicant had told them about a camp in LOC near GPE where NORP received training to become suicide bombers , and that she knew someone from there . She had mentioned that she herself had participated in the Chechen war on the side of the insurgents . Together they had often visited an Internet café in the PERSON shopping centre . The applicant had also taken photos of an escalator from different positions there .

On DATE the applicant had told PERSON and PERSON . that if something were to happen to her , they would have to remove all NORP literature and her diary from the flat , and to call her mother in GPE . She had also told them that she had just received a call from a friend who had arrived in GPE to “ blow himself up ” , and that she ( that is to say the applicant ) “ was in danger ” and “ under suspicion ” [ of the authorities ] . The applicant had not threatened them and had not incited them to commit a terrorist act but she had asked them if they were capable of doing it . She had constantly preached “ the way of jihad ” to them and had given them NORP books and audiocassettes . Some of those books had been given to her by her acquaintance , A ..

V. denied having seen any explosives in the flat where they had lived .

At the request of the prosecutor , the trial judge allowed ORG ’s pre - trial testimony to be read out , as it contradicted in part statements she had made at the trial . In particular , during her pre - trial questioning , PERSON had testified that the applicant herself had undergone terrorist training in a camp near GPE and that she had been indoctrinating PERSON and PERSON . in order to prepare them to become suicide bombers . When the prosecutor asked PERSON about her contradictory statements , PERSON stated that she was not sure whether the applicant had really participated in a terrorist training camp . However , she stated that the applicant had been preparing her and PERSON . to become suicide bombers .

Ku . confirmed that she , ORG and the applicant had taken photos in the PERSON shopping centre , at the initiative of the applicant , and that the applicant had “ taken snapshots randomly ” . In particular , the applicant had taken photographs of the escalator and the people on it . PERSON . submitted that the applicant had disapproved of the policy of the NORP federal forces in the GPE . However , she had not incited PERSON . to become a suicide bomber . According to PERSON . they had simply wanted to live together to pray , read and live free from the control of their parents .

Ku . further stated that the applicant ’s acquaintance , ORG , was a policeman and that he had paid for the flat where the CARDINAL of them had lived and that he had also given them money occasionally . Once the applicant had told her that she liked A.

Ku . further stated that during the pre - trial questioning the investigator had misinterpreted her words concerning a suicide attack and that she had never planned to commit any such attack . She denied having given her pretrial statements under pressure .

The court questioned several police officers who had participated in her arrest and personal search ( P. , S. , B. , NORP and PERSON . ) . They stated that the applicant ’s apprehension had occurred during a regular patrolling operation , and that they had not been aware that her bag had contained explosives .

P. testified that on DATE of the applicant ’s arrest he had decided to check the applicant ’s documents because “ she had been aimlessly walking to the LOC metro station ” . She had showed them her passport and the registration stamp confirming her right to stay in GPE , which had expired . The policemen took her to a police station . At the moment of the arrest she had been nervous and aggressive . They had decided to search her bag because such an action “ was compatible with the law ” . P. further explained that he had stopped the applicant “ because it had been unclear where she had been going to ” , because she had “ resembled a girl from a wanted ORG notice ” , and because she was “ a person of NORP ethnicity [ that is to say from the LOC region ] ” . P. also stated that the expiry of her registration had been sufficient reason to apprehend the applicant . He further testified that they had been routinely searching all people with expired registration .

S. gave similar testimony . He added that the applicant had been walking fast and that she had started to threaten the police officers with disciplinary sanctions when they had stopped her .

B. testified that they had decided to stop the applicant because she had been wearing black and was of “ NORP ethnic origin ” . He added that the applicant ’s appearance had matched the description of someone on their wanted persons notice . He also testified that the applicant had had her bag with her up until the moment of her undergoing a personal search at the police station .

The court also questioned the police officers who had been on duty at the LOC police station on DATE of the applicant ’s arrest .

I. testified that she had searched the applicant in the presence of CARDINAL attesting witnesses and had found QUANTITY objects wrapped in the aluminum foil in her bag , which had been later confirmed to be explosives . The applicant ’s fingerprints had been taken DATE after the objects had been discovered in her bag .

Ke . testified that before the search the applicant had had all her personal belongings with her and that it had taken TIME before the start of the search to find attesting witnesses who had been invited to observe the personal search .

The applicant stated that the transcripts of the video tapes recorded in the flat by the police and read out in court had not been accurate and that she had requested the tapes to be played during the hearing . The court granted her request . It does not transpire from the trial transcript that the applicant submitted any requests or complaints concerning the quality of the tapes or the manner in which the tapes had been shown .

The applicant ’s lawyers requested the court to summon police officer ORG for questioning . They did not submit any reasons for their request . However , the court refused their request because at that time A. had left GPE for a work mission .

According to the applicant , the court had not tried to verify whether or not PERSON was indeed on a mission and whether or not it would be possible to question him upon his return .

As can be seen from the transcript of the hearing , the applicant and her lawyers did not object to the record of the questioning of A. at the pretrial stage being read in the hearing .

The applicant further requested the court to question CARDINAL attesting witnesses , PERSON and PERSON , who had been present while she had been searched at the police station .

However , the court refused to call them . As can be seen from the documents in the case file , the court decided that the attesting witnesses would in any case be unable to confirm the applicant ’s allegations because the applicant herself had claimed that the explosives had been planted before the arrival of the attesting witnesses .

After DATE of trial hearings the judge asked the parties whether they wished to close the examination of evidence and proceed to the pleadings , in the absence of those witnesses who had not appeared . The parties agreed to proceed to the pleadings .

During the proceedings the court admitted the following material as evidence :

The court examined and dismissed the applicant ’s claim that the explosives had been planted on her . The court referred to the testimony of the patrol officers and the officers of the police station , who had denied those allegations , and to the fact that according to the official report the personal search of the applicant had preceded the taking of her fingerprints , and there had been no evidence that the fingerprints had been taken twice , as the applicant suggested .

The court further found that the applicant must have drafted the text of the handwritten note herself and that she had not copied it from NORP websites on the Internet , as she had claimed , since the note had contained modifications and corrections .

On DATE the court convicted the applicant of preparing an act of terrorism ( an explosion ) , inciting others to commit an act of terrorism , and carrying explosives , and sentenced her to CARDINAL years’ imprisonment .

The applicant and her lawyers appealed against her conviction . In the statement of appeal they complained , inter alia , that CARDINAL out of CARDINAL surveillance videotapes had been shown in the hearing and that for “ technical reasons ” the applicant had not been able to point out inaccuracies between the transcripts and the recordings of conversations on the videotapes . They further complained that the court had unreasonably refused their request to be allowed to question police officer A. and that there had been no documents in the case file showing that A. had been away on a work - related mission at the time of the hearing . Moreover , the court should have called the attesting witnesses , PERSON and PERSON , because they could have testified about the circumstances preceding the personal search of the applicant in the police station .

DATE . On DATE ORG upheld the judgment , reducing the applicant ’s sentence to DATE .

ORG held that the videotape had been shown at the request of the defence and that no objections or complaints had been lodged with the court after the videotape had been played , including that not all of the videotapes had been shown .

ORG further considered that the questioning of A. had not been possible due to his absence on a work - related mission and that his pre - trial statement had been read out with the consent of the defence . As for CARDINAL attesting witnesses PERSON and PERSON , their personal appearance had not been necessary since the applicant claimed that the explosives had been planted in her bag before their arrival . In any event , the defence agreed to proceed to the closing arguments and had not had any objections or additional requests about the examination of the applicant ’s case .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

The applicant recognised his paternity in respect of his CARDINAL sons , A. and J. , born out of his relationship with PERSON in DATE and DATE . He never cohabited with the mother and the children .

On DATE PERSON lodged an application with ORG for the applicant to be divested of his parental authority ( pozbawienie praw rodzicielskich ) . She argued that he had been failing to discharge his duties towards the children and to pay child support .

During a hearing on DATE she withdrew her application . The court discontinued this part of the proceedings . In the same decision it held that both parents were to continue to have parental authority and that the children should reside with their mother . A court - appointed guardian ( kurator sądowy ) was assigned to supervise the applicant in the exercise of his parental authority . He was granted a right to contact , but no specific contact arrangements were set out at that time .

On DATE the applicant requested ORG to specify that contact arrangements away from the mother ’s home , as difficulties had arisen for him to see the children .

On DATE an expert opinion commissioned by the court for the purposes of the contact proceedings was issued by ORG Rodzinny Ośrodek Diagnostyczno - Konsultacyjny – “ RODK ” ) . It had been prepared by a psychologist and an education specialist who had met both the parents and children . It transpired that the children had emotional ties with both parents and a close and spontaneous relationship with the father . The father had emotional ties with the children , knew them well , accepted them , and wanted to maintain contact . He paid child support and had the qualities needed to be a competent father . He should therefore play a part in the PERSON lives . The experts stressed that the mother had a negative attitude towards the applicant and wished to exclude him from the children ’s lives . They were of the view that her educational skills and practices were open to criticism . The experts noted signs of emotional distress in the boys but observed that they loved both parents . They concluded that the boys should have frequent contact with their father .

In a letter sent to the court during the proceedings , the applicant stated that he abstained from having contact with the children because the mother had been hostile and verbally aggressive towards him .

He had seen the boys on DATE .

By a decision of CARDINAL DATE ORG specified that the applicant had a right to see the boys on the first , second and DATE , from TIME , without the mother present . It further held that he was entitled to spend DATE with them . The mother was obliged to comply with that order . Her appeal was dismissed on DATE .

The mother failed to comply with the contact order . On numerous occasions the applicant complained in writing to the police and the court . The court - appointed guardians , in successive reports to the court , including in DATE and DATE , DATE , DATE and DATE , confirmed that the mother had been obstructive , had failed to comply with the contact arrangements , and had repeatedly refused to open her door when they went to visit . They talked to the children ’s teachers and the school ’s education welfare officer with a view to gathering information about the children ’s progress in school , the mother ’s involvement in their education and the children ’s contact with the applicant .

On DATE the applicant requested that a fine be imposed on the mother for failing to let him see the boys .

On an unspecified date in DATE the PERSON mother allegedly told them that their father was dead . She sent him a funeral wreath with offers of condolences from his children .

On DATE ORG imposed a fine on the mother of ORG CARDINAL,CARDINAL for failing to comply with the contact order and ordered her to comply with its terms within DATE . CARDINAL similar orders were issued on DATE and DATE , upon applications by the applicant dated DATE and DATE respectively . Fines were imposed on her on both occasions ( PLN MONEY and FAC CARDINAL ) and DATE time - limits fixed for her to allow the applicant to see the children . Any fine remaining unpaid within that time - limit would be converted into detention at a rate of PLN DATE .

In CARDINAL reports submitted to the court in DATE and DATE the guardian observed that the applicant had only once taken the opportunity to see his sons on the school premises , despite an agreement being reached with the school authorities . In DATE and DATE she informed the court that she had not managed to establish contact with the parents . In her DATE report , she stressed the willingness of the teachers and the school authorities to assist the applicant in seeing his sons at school and informed the court that he had not availed himself of that opportunity . In reports submitted to the court in DATE and DATE and DATE and DATE the guardian summarised the applicant ’s communications with the children ’s teachers and authorities . She noted that there had been no signs of neglect on the part of the mother and that the boys caused no trouble and showed no signs of distress . Reference was made in the DATE report to the mother ’s hostility towards the children ’s father .

In DATE the applicant went to the mother ’s apartment , accompanied by the guardian and the police . She said that she disagreed with the contact order , was ready to suffer the consequences and was not prepared to allow the applicant contact with the children . A child was heard crying in the apartment . The police chose not to intervene . The applicant was not allowed to see the boys .

The mother failed to pay the fines imposed on her . By an order of CARDINAL DATE the court , having regard to that failure , held that she was to serve DATE in detention in lieu of paying the unpaid fines and ordered the court bailiff to carry out enforcement .

On DATE the guardian reported to the court that her attempts to establish contact with the mother had failed , as she would not open the door to her apartment . She stated that the applicant had not seen the children since he received a funeral wreath from the mother ( see paragraph CARDINAL above ) . He was of the view that the children thought he was dead . It was further stated in the report that the applicant had refused to look after the children if their mother was detained . He had a very small apartment with his wife and was not in a position to ensure that the living conditions were suitable for them .

By an order of CARDINAL DATE the court fixed a threeweek timelimit for the mother to allow the applicant contact in accordance with the terms of the contact order on pain of enforcement measures being taken in respect of the detention order of DATE ( see paragraph CARDINAL above ) . It appears that the mother declared on DATE , DATE and DATE that she would comply , but the applicant was still not allowed to see the children .

On DATE the guardian , in reply to a request by the court for further information , confirmed that the mother had consistently failed to allow the applicant to have contact with the children . Furthermore , she would not let the guardian enter her apartment .

NORP In DATE the applicant tried to see the boys twice , but to no avail . The PERSON maternal grandmother told him that the children were not at home and that he would not be allowed to see them . The presence of a police officer did not have any effect .

On DATE the court found that the mother had failed to comply with the contact arrangements and to pay the fine imposed on her . It held that she should therefore serve time in detention in lieu of paying the fine .

On DATE the court decided to place the children with the grandmother for the time their mother was supposed to spend in detention .

On DATE the court bailiff tried to arrest the mother , but there appeared to be no one home when he attended her address . The police refused to intervene . In DATE the mother submitted successive medical certificates to the bailiff stating that she could not start to serve her sentence until DATE . The bailiff informed the court on DATE . In DATE the grandmother paid the fines imposed by the court in the total amount of ORG CARDINAL,CARDINAL .

On DATE the applicant again requested that fines be imposed on the boys’ mother because she still refused to comply with the contact arrangements . During a hearing in relevant proceedings on DATE the applicant submitted that on DATE he had given up pursuing his efforts to see the boys , as he had not wanted coercive measures to be used in the context of their contact with him ( see paragraph CARDINAL below ) . On DATE the court decided not to entertain his request to have a fine imposed on the mother .

On DATE ORG instituted ex officio proceedings to limit PERSON ’s parental authority ( ograniczenie praw rodzicielskich ) acting upon , inter alia , the reports the court - appointed guardians had submitted to the court . They repeatedly averred that the mother had consistently avoided communicating with them , making it impossible for them to supervise her in the exercise of her parental duties and to establish the children ’s situation , and their contact with their father .

On DATE the court , having regard to the mother ’s continued failure to comply with the contact arrangements and information gathered by the guardians as to her parenting skills , limited her parental authority . It appointed a guardian tasked with supervising her in the exercise of her parental rights . It noted that her attitude was to the children ’s detriment .

On DATE the mother lodged an application with ORG for the applicant to be deprived of his parental authority ( pozbawienie władzy rodzicielskiej ) and his right to contact . She argued that his conduct was to the children ’s detriment ; that they had become hostile towards him and that this had been because he had tried to have her punished . During the proceedings , on CARDINAL DATE a local assessment ( wywiad środowiskowy ) was conducted at the mother ’s home by a court - appointed guardian with a view to establishing the children ’s situation and the mother ’s parenting skills .

On DATE the court dismissed the application . In the written grounds for its decision it recounted the measures taken so far with a view to making the mother comply with the contact arrangements . It also acknowledged the applicant ’s consistent efforts to have contact with his children . It noted that the mother ’s attitude to any contact between the applicant and his children was negative and that she had been acting arbitrarily ( arbitralnie ) to make it impossible for him to play a part in the boys’ lives . The court was of the view that the mother was motivated entirely by her hostility towards the applicant and not the children ’s best interests . It further noted that the children could develop a hostile attitude towards their father , based entirely on their mother ’s attitude . The court concluded that the mother ’s conduct was to the children ’s detriment and that her behaviour needed to change .

In DATE , DATE , DATE and DATE the guardian submitted DATE reports to the court . It transpired that numerous efforts to establish contact with the mother had failed . She would not open the door to her apartment when the guardian went to visit her and the boys , even though the guardian could hear that someone was inside at the time .

On DATE the applicant instituted proceedings to have the children removed from their mother ’s care ( przymusowe odebranie dziecka ) on the grounds that she had hitherto failed to comply with the contact order . During a hearing on DATE the applicant stated that he would continue to visit the boys on each scheduled date , if only to show his willingness to maintain contact with them , even if they continued to refuse to see him . He stated that he had not had any contact with them for DATE . He had last seen them in DATE . When he had gone to see them , they had talked to him on the steps and told him that they did not want to see him as he had never cared about them .

By an order of CARDINAL DATE the court allowed his request and authorised the court - appointed guardian to assist him at each visit he was supposed to have with the boys in accordance with the terms of the contact order .

On the CARDINAL visits that followed ( CARDINAL and DATE , DATE and DATE and DATE and CARDINAL DATE ) the applicant was assisted by the guardian . He saw his older son on DATE for TIME . On DATE the children told their father that they did not want to see him . They refused to see him on CARDINAL DATE . On CARDINAL and DATE PERSON told his father that he did not wish to see him and that he would not change his mind . Detailed reports of these attempts at contact were submitted to the court by the guardian . On DATE the guardian informed the court that the applicant , having regard to the children ’s manifest hostility and their best interests , had waived his right to see them and guardian assistance . The guardian suggested that family counselling was necessary to improve the situation .

A meeting was held on DATE attended by the applicant and CARDINAL guardians . The applicant was of the view that coercive measures used for the purposes of enforcing the contact arrangements would only increase the children ’s hostility towards him . He requested that another psychological assessment of the family situation be prepared urgently . By letters of DATE the applicant informed the court that he had waived his right to guardian assistance and to see the children , referring to their negative attitude towards him and the fact that his efforts had hitherto been fruitless , on account of the mother ’s continuous and unrelenting defiance .

In DATE the guardians repeatedly tried to talk to the mother with a view to persuading her to comply with the contact arrangements , but she continued to refuse to open her door . In DATE , DATE and twice in DATE the guardians tried to visit the mother , but to no avail . They informed the court accordingly .

In DATE the guardian spoke to the school about the children ’s situation . It was established that they had not been attending school regularly . He also spoke to the children ’s grandmother , who had avoided answering questions about her daughter ’s and grandchildren ’s situation . The guardian concluded that the mother appeared to have never left the apartment , had been living a life of total seclusion and had been unable to cope with the children ’s educational difficulties .

NORP On DATE ORG , acting upon reports received from the guardian and the school authorities , instituted ex officio proceedings with a view to varying the manner in which both parents had been limited in the exercise of their parental duties ( see paragraphs CARDINAL and CARDINAL above ) . The guardian , in reports in DATE and DATE , expressed the view that the children should be placed into emergency care ( pogotowie opiekuńcze ) , on account of the total absence of contact from the mother and alarming information received about the children ’s defiant and obviously disturbed and aggressive behaviour in school .

On DATE the same court , acting upon information received from the police , instituted another set of ex officio proceedings concerning the same subject matter as those instituted on DATE . The proceedings were joined on DATE .

On DATE a hearing took place . The court heard the applicant , CARDINAL court - appointed guardians who had been involved in the case and the school ’s education welfare officer . The applicant supported the guardian ’s request for the children to be placed into care . He reiterated that he did not have any contact with the children . The guardians confirmed their submissions that the mother had consistently avoided communicating with them , and was living a life of seclusion . The education welfare officer stated that the children had been failing to attend school regularly and had become increasingly neglected , disturbed and aggressive towards other pupils and the teachers . The court ordered that the children be placed into emergency care .

The mother failed to take the children to the care home that was to accommodate them . On DATE the court ordered the guardian to collect the children . The guardian attempted to do so CARDINAL times , going to both their home and school on DATE , CARDINAL and DATE and CARDINAL DATE respectively . The guardian also sought the help of the police and the education welfare officer , but to no avail , as either there was no one in the apartment or no one opened the door .

On DATE the mother lodged an application for the court order of DATE to be revoked . She declared her readiness to cooperate with the court and the guardians . The enforcement proceedings were stayed for the duration of the proceedings .

On DATE she allowed the police to enter her home .

On DATE the court - appointed guardian was finally able to conduct an assessment ( wywiad środowiskowy ) at the mother ’s apartment . He concluded that she was unable to properly discharge her duties towards the children and that she blamed the school ’s education welfare officer and the court - appointed guardians for the existing situation , saying that she did not trust them . It was further suggested that a further examination by expert psychologists should be carried out at the RODK and that the mother be examined by a psychiatrist .

On DATE a hearing took place . Both parents were in attendance . The court questioned the police and the boys’ maternal grandmother . It ordered that an expert opinion be prepared . The mother protested and submitted her own psychologist ’s opinion stating that the children had not been neglected . The examination at the RODK was scheduled for DATE , but was eventually postponed to a later date to take place prior to the next hearing scheduled for CARDINAL DATE .

The proceedings are currently pending .


CASE OF POLETAN AND AZIROVIK v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence)

Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

The applicants were born in DATE and DATE and live in GPE ( the first applicant ) and PERSON ( the second applicant ) .

As established in the criminal proceedings described below , on DATE , during a search carried out by ORG at the GPE border crossing ( between the respondent State and GPE ) QUANTITY of cocaine were found hidden in rectangular packs submerged in hermetically sealed cans of acrylic paint . The cargo , which had been loaded onto a truck driven by the second applicant in GPE ) , was destined for GPE .

On DATE ORG at ORG ( “ the Bureau ” , ORG за криминалистичка техника ) carried out an expert examination in order to determine the quantity and quality of the substance found in the truck . On DATE the ORG carried out a further examination . Both reports ( ORG no . CARDINAL/CARDINAL and ORG no . CARDINAL/CARDINAL ) established the gross weight of the substance , which was pure cocaine .

On DATE the public prosecutor requested that an investigating judge from ORG ( “ the trial court ” ) open an investigation against the applicants on account of reasonable suspicion of trafficking QUANTITY of cocaine . In the request it was stated that the drugs had been packed in CARDINAL packages and stored in DATE cans containing acrylic paint .

On DATE , the investigating judge heard the second applicant ( the first applicant could not be traced ) in the presence of Mr D. Dangov , a lawyer of his own choosing ( after CARDINAL DATE the second applicant was represented by a different lawyer ) . On this occasion , the second applicant confirmed that he had known the first applicant for DATE and that on DATE she had contacted him regarding the transportation of acrylic paint from GPE to GPE . She had given him the telephone number of a certain PERSON ( a forwarding agent ) in GPE regarding the shipment . He had spoken to ORG by telephone , but he had not met her . His truck had been searched at Kula border crossing ( between GPE and GPE ) and in the city of GPE , GPE , after which he had been escorted by police and customs to the border crossing with the respondent ORG . At TIME . on DATE he had arrived at GPE border crossing . The NORP customs officials had instructed him to leave the truck overnight and to return TIME . He had complied with that instruction . On DATE the truck had been searched and drugs had been found . The second applicant denied knowing that he had been transporting drugs .

DATE , the investigating judge opened an investigation and issued detention orders for DATE in respect of the applicants .

On DATE the first applicant appointed Mr PERSON to represent her in the proceedings . On DATE the investigating judge issued an international arrest warrant in respect of the first applicant . On DATE she was arrested in GPE and detained pending extradition in the respondent ORG .

NORP On DATE the first applicant ’s lawyer requested permission to inspect the case file . A handwritten note on his application indicated that “ inspection of the case file ( wa)s allowed ” . On DATE the first applicant was incarcerated in GPE detention facility . An official note drawn up by the investigating judge indicated that on that occasion she had been aware of the public prosecutor ’s application and the decision of the investigating judge to open an investigation .

On CARDINAL DATE the investigating judge heard the first applicant in the presence of her lawyer . She stated that she would make a statement once she was able to consult the available evidence . On DATE she was heard for the second time . In the presence of her representative , she confirmed that she had contacted the second applicant , who had agreed to transport the paint from GPE to GPE for CARDINAL ( ORG ) . She had also given him the contact details of ORG , the LOC forwarding agent . The first applicant denied that she was aware that drugs had been planted in the cans .

On DATE and DATE the first applicant ’s lawyer requested permission to consult the case file , arguing that his previous requests had remained unanswered . On each application there was a handwritten note indicating that the requests had been granted .

On DATE the public prosecutor lodged an indictment against the applicants on account of trafficking QUANTITY of cocaine ( неовластен промет на наркотична дрога-кокаин ) packed in CARDINAL packages found in CARDINAL cans . The indictment relied on considerable verbal and material evidence , including the ORG ’s expert reports ( see paragraph CARDINAL above ) .

On DATE the first applicant ’s lawyer requested access to the case file . According to a note , which he duly signed , on CARDINAL and DATE he inspected the file for TIME .

On DATE the first applicant objected to the indictment arguing , inter alia , that she had not been given the opportunity to consult the case file and prepare her defence . On DATE a CARDINAL - judge panel of the trial court dismissed the objection , holding that on CARDINAL and DATE the first applicant had inspected the case file .

On DATE the first applicant ’s lawyer requested permission to copy some documents from the case file . According to a handwritten note on the application , his request had been allowed upon payment of the court fees . On DATE the court allowed Mr Lj . M. , a lawyer whom the first applicant ’s mother had in the meantime appointed to represent the first applicant , to consult the case file .

At a hearing held on DATE , the trial court heard the first applicant , who reaffirmed the deposition she had made before the investigating judge ( see paragraph CARDINAL above ) . In addition , she stated that a certain PERSON ( a NORP forename ) , from GPE , whose surname , residence and all other contact details were unknown to her , had owed her money and had offered to provide her instead with paint from GPE . In DATE she had imported CARDINAL containers of paint from GPE , the first being shipped to GPE ) and the second to GPE , GPE . She denied having had any contract with the paint producer and exporter in GPE or with PERSON latter had told her that a certain GPE , who allegedly worked with him , could assist her in her dealings with the exporter in GPE . J. also had given her the contact details of a buyer in GPE regarding paint from a third container ( the subject of the proceedings ) and the telephone numbers of GPE and GPE in GPE , whom she had called regarding the cargo concerned . ( When contacting PERSON , the first applicant had introduced herself by name as the owner of company PERSON , saying that she was calling upon instructions from a certain PERSON ) . She reiterated that she had hired the second applicant to transport the paint from GPE to GPE , had handed over the necessary documentation to him , and had provided him with the contact details of GPE and GPE in GPE . She also confirmed that around that time she had talked with the second applicant many times on the telephone . Lastly , she denied that she had discussed any drugs - related matter with him or any other person .

On DATE Mr Lj . PERSON requested a copy of certain material evidence , which was allowed on DATE .

At a hearing on DATE , the second applicant stated that at the meeting with the first applicant on DATE , they had agreed that he would transport the paint from GPE to GPE , for which he had been paid ORG CARDINAL . On DATE he had arrived in Bar and had contacted ORG , the LOC forwarding agent , and after the cargo had been loaded onto the truck , he had left for Pec , where the truck had been searched twice using police dogs . The truck had remained at the Pec customs terminal for DATE ( TIME the second applicant had remained in the truck ; TIME , he had stayed in a nearby hotel ) . The second applicant had arrived at GPE border crossing at TIME . on DATE and the truck had remained at customs terminal TIME ; the second applicant had spent TIME at home and had returned to the terminal at TIME . TIME . On DATE the truck had been searched and the cans had been examined in a special X - ray van .

At hearings on CARDINAL and DATE held in the presence of the applicants and their representatives , the trial court decided to hear oral evidence from ORG and ORG , the experts employed in the ORG who had drawn up the reports of CARDINAL and DATE ( see paragraph CARDINAL above ) . It also accepted a request from the public prosecutor that witnesses GPE and GPE ( who worked at LOC ) from GPE produce oral evidence at the next hearing fixed for DATE or , if prevented , give evidence before a competent court in GPE ( in the latter case , transcripts of their depositions would be read out at the trial ) . The applicants did not object . The trial court requested that ORG deliver a court summons to GPE and PERSON for the hearing scheduled for DATE . It also attached a letter ( замолница ) requesting the competent court in GPE , GPE to examine the witnesses should they be prevented from attending the hearing of DATE . The letter contained CARDINAL questions formulated by the trial judge which the court in GPE was asked to put to the witnesses . When there was no reply , the trial court reiterated its request in letters dated PERSON and DATE and sent to ORG .

On DATE an investigating judge from ORG examined N.V. The relevant parts of the court record of her examination read as follows :

“ ... I remember that DATE , L.S ‒ who works at ORG ‒ called in order to ask me to send a container to GPE for a friend of hers ... PERSON gave my telephone number to certain PERSON . PERSON called me and introduced herself as working for ( the first applicant ’s ) company . She asked me to prepare documentation so that the container would be transported to GPE , to GPE instead of to GPE ... I do not know [ the applicants ] . I did not see [ the second applicant ] when he arrived in GPE . I just sat in the office and spoke by telephone and I knew about him because he called to tell me that he would come to the office to provide some documentation for the goods , which he did not give to me , but to my colleague PERSON ... ”

On DATE ORG forwarded the transcript of ORG statement to ORG of the respondent ORG .

On DATE the investigating judge of ORG examined PERSON The relevant parts of her statement ( which was sent on DATE to ORG of the respondent State ) read as follows :

“ ... on DATE I received a telephone call from ORG ( from GPE ) ... in order to give him the contact details of a person working for a company , GPE , that handled containers ... I called LOC ] and told her that a friend had asked me for information regarding this matter ... TIME after this discussion with N.[V. ] , I received a telephone call from certain GPE ... who told me that the container belonged to her and that it should not go to GPE , but to GPE , so she needed a forwarding agent ... on DATE I travelled to GPE , GPE ... While I was in GPE , I received a telephone call from a man who spoke LANGUAGE and who introduced himself as PERSON ( a NORP name ) ... telling me that the container which needed to be taken to ORG belonged to him ... on DATE a man who introduced himself as PERSON called me and said that he was a driver and that he had come in order to collect the goods in that container ... I called GPE and told her that the driver had arrived . N.[V. ] told me that the driver should go to the car park at FAC . When PERSON called me , I told him what GPE had said and gave him her number ... on DATE P. called again and told me that the driver needed some documents ... I stress that I had nothing to do with the transportation or contents of that container , nor I could envisage what was inside . Later , I heard on the media that it concerned a shipment of paint and the documents that I saw referred to some paint ... I did not see or speak with [ the applicants ] ... I do not know if ( the man called ) PERSON whom I mentioned as a driver in this story is [ the second applicant ] about whom you ask me ... ”

Both witnesses gave their evidence under oath and were warned of the consequences of false testimony .

On DATE , in the presence of the applicants and their representatives , the court heard evidence from the experts ORG and PERSON , a superior expert in the ORG who had also been involved in drawing up the expert reports ( ORG no . CARDINAL/CARDINAL and ORG no . CARDINAL/CARDINAL ) . The expert ORG could not attend the hearing since she had gone on a business trip to GPE . Both experts were warned about legal consequences of false testimony . PERSON stated , inter alia , that :

“ ... the cocaine examined is pure cocaine ... the net weight ... was not established . ... after cocaine had been discovered , I went with my colleague PERSON to the FAC border crossing in order to carry out an initial examination so as to determine what was involved . The drugs were brought to our laboratory ... At GPE border crossing , ( we ) cut open the packages and took a small quantity ... which was sufficient to determine the nature of the substance ... that happened at the border crossing , where several packages were opened ; that is a standard procedure ... In the laboratory , the packages were brought in , as far as I remember , in paper bags , but I ’m not sure .

On DATE ... the drugs were brought ( into the laboratory ) ... It was TIME . ... On DATE packages were brought into the laboratory . For a larger quantity of drugs , in principle , ( we apply ) the ORG recommendations ... In the present case , we examined the square root of the total number ( of packages ) which was in compliance with these recommendations . Of the additional QUANTITY packages , we examined every third package because it concerned a smaller quantity compared to packages received on DATE ... The laboratory is accredited by ORG for drug analysis and is regarded as reliable . The laboratory is not accredited for ORG standards . [ The latter ] is a formal issue and it concerns a long and expensive procedure , but [ that ] does not mean that in terms of technique , equipment and means of work , there are any shortcomings ...

The cocaine we analysed is the biggest quantity so far examined ... As provided for in the ORG recommendations , if ( there are no more than ) QUANTITY packages , then all ( the packages ) are examined ; if ( there are ) CARDINAL packages , then every tenth package is examined ; if ( there are ) CARDINAL packages , the quantity to be analysed is the number calculated to be a square root of all the packages ... ”

The expert ORG stated , inter alia , that :

“ ... When preparing the expert report , all packages had been analysed using colour tests ; CARDINAL packages , which were randomly selected from the total of CARDINAL packages in accordance with the ORG recommendations , were analysed by means of ... ( methods of analysis ) ... The packages were brought into the laboratory for examination in CARDINAL black plastic bags ... When we arrived at GPE border crossing , the packages were lined up at the roadside ; they were covered with polycolor ; we took samples for analysis from several packages ... ”

The applicants objected to both the experts’ statements and the expert reports , arguing that they had been drawn up by ORG , the same body that had instituted the proceedings against them .

The hearing continued on CARDINAL DATE when “ an employee from the court archives department entered ( the court room ) ” and handed the trial judge the transcripts of the statements GPE and PERSON had given before ORG ( see paragraphs CARDINAL and DATE above ) , translated into NORP . The trial judge noted that GPE and PERSON had been prevented from attending the scheduled hearing due to “ other obligations ” and “ a trip to GPE ” respectively . Therefore , she proceeded to read out the ORG statements . She also ordered that the ORG supplement the expert reports ORG CARDINAL/CARDINAL and ORG CARDINAL/CARDINAL with information regarding the drug ’s net weight ( дополнување на вештачењето ) .

On DATE , outside the hearing ( вон рочиште ) , the trial court ordered the ORG to draw up a fresh expert report regarding the quality and quantity of the substance found in the cans . The order was communicated to the parties .

On DATE PERSON and ORG , the experts employed by ORG , drew up a fresh expert report ( no . DATE ) , the relevant parts of which read as follows :

“ In order to determine the nature of the substance and in accordance with the recommendations of PERSON ( ORG ) and ORG ) regarding the analysis of multiple samples , CARDINAL randomly - chosen packages ... were analysed ... out of the total number of packages ( CARDINAL ) ...

The net weight of the material taken from the analysed packages was QUANTITY ...

On the basis of the analysis made , it is confirmed that the analysed material taken from the packages was cocaine . This confirms the earlier findings ... specified in the expert reports nos.CARDINAL/CARDINAL and CARDINAL/CARDINAL of CARDINAL and DATE , respectively .

The total net weight of seized packages ( CARDINAL ) was established ( on the basis of ENFSI recommendations ) by means of a mathematical and statistical methodology ... On the basis of the calculations done , it is concluded that the total net weight of the substance ( found ) in the packages was PERSON QUANTITY . ”

Expert report no . DATE was presented at a hearing dated DATE in the presence of the applicants and their representatives . Evidence from the experts PERSON and ORG was also heard . PERSON stated , inter alia , that :

“ ... [ the ORG ] is the only accredited and reliable laboratory in GPE competent to analyse seized drugs . We are authorised by ORG and we apply its recommendations ... Since DATE , when we started work , the central laboratory in GPE has never voiced any complaints about our analyses ...

In the present case , which concerned CARDINAL packages , namely CARDINAL , after we had determined the square root of CARDINAL , which is CARDINAL , we analysed CARDINAL packages , which were chosen at random . I stress that these QUANTITY packages were analysed fully using all the methods specified in the recommendations . That does not mean that some of the packages were not analysed at all . Regarding expert reports nos.CARDINAL/CARDINAL and CARDINAL/CARDINAL , all CARDINAL packages were analysed using so - called speedy methods in order to determine the substance . Then , certain packages that were randomly chosen and were fully analysed using all methods ...

Asked by the judge whether in the preparation of the expert report commissioned by the court the expert had received any instructions from anyone , including their superior , she replied :

‘ I drew up the expert report commissioned by the court , as well as the earlier reports , in good faith and according to my best knowledge . [ The ORG ] operates within ORG , but it is independent in its work . In my career , no superior has ever influenced any expert examination nor would I accept anything of that kind ... ’ ”

O.B. concurred with PERSON The applicants did not object to the expert report and the experts’ statements but they complained that a prosecuting body , such as ORG was in this case , could not carry out an expert examination of the substance , which anyway should have been examined in its entirety ( the results could not be based on an analysis carried out on randomly chosen samples ) . The applicants contested PERSON ’s argument that the ORG was independent and was the only accredited laboratory for such an examination . In this connection they requested that the court commission an alternative expert report by an independent expert body , national or foreign .

As to the applicants’ objections regarding the expert evidence , the trial court stated :

“ ... [ The applicants’ ] request for an alternative expert examination of the quality and quantity of seized packages by an independent institution is not allowed since the expert evidence adduced by the court was produced by ORG ; in accordance with LAW , an expert report may be drawn up by a State body ; in more complex cases , such as the present one , such expert examination is entrusted , in principle , to a State body . Expert report no . CARDINAL of CARDINAL DATE was drawn up by [ the ORG ] on the basis of a prior court order .

The request ... for a complete analysis of all seized packages is refused since ... some of the packages had been handed over to the experts ( for examination ) , as provided for in the ORG and PERSON recommendations ... ”

On DATE the trial court accepted the applicants’ request for an on - site inspection of the ( CARDINAL ) packages ( kept in a special department of the trial court ) examined by the ORG ’s experts and the subject matter of expert report no . CARDINAL . The inspection was carried out in the presence of the applicants and their representatives . As indicated in the court record of that date , there were CARDINAL paper bags . In each bag there were QUANTITY packages containing white powder ( бела прашкаста материја ) . Since “ some packages ... were of dimmer and ( others ) of brighter white colour ( со нијанси на потемна и посветла боја ) ” , the ORG representatives argued that “ the drugs were not of the same quality , that is to say of the same pureness . ”

At a hearing dated DATE , the parties presented their concluding remarks . The public prosecutor specified the indicted offence , accusing the applicants of having participated , as a group , in the unauthorised transportation of QUANTITY of cocaine . The applicants’ lawyers reiterated that the expert evidence had been produced by the ORG , which had operated within ORG , as a prosecuting body and that the third expert report that had been commissioned by the court had been of no relevance since it had been produced by the same experts who had been involved in the earlier expert examinations . They also complained that the expert evidence admitted had been inconsistent regarding the quantity of drugs seized ( see paragraphs CARDINAL above ) and the type of paint in which the packages had been submerged ( see paragraph CARDINAL above ) . Furthermore , according to this evidence , the substance found had been pure cocaine , which , according to them , was impossible . They also contested that the statements of the witnesses ( GPE and GPE ) examined in GPE had been obtained in violation of their defence rights .

On DATE the trial court delivered a judgment in which it found the applicants guilty of drug trafficking , an offence punishable under Article CARDINAL ) in conjunction with sub - paragraph CARDINAL of LAW ( see paragraph CARDINAL below ) and sentenced them to DATE and CARDINAL months’ imprisonment . The operative part of the judgment read as follows :

“ ... on an unspecified date before DATE , [ the applicants ] ( acting ) as a group ( како повеќе лица ) , were participants in the unauthorised transportation of a shipment of narcotic drugs – cocaine ( неовластено пренесување на наркотична дрога-кокаин ) . After [ the first applicant ] had contacted persons of unknown identity who intended to transport drugs from GPE , ( she ) had agreed with them to transfer the drugs to GPE ... on DATE ( she ) contacted [ the second applicant ] in order to arrange with him the transport of the drugs from [ GPE ] to [ GPE ] ... paid him ORG CARDINAL [ and provided him with the necessary supporting documentation ] . On DATE [ the second applicant ] drove a truck ... to [ GPE ] . On DATE , CARDINAL plastic cans of acrylic paint were loaded onto [ the truck ] . Cocaine was planted in some of them ... [ He ] drove through GPE towards GPE and GPE ... At TIME on DATE he arrived at the FAC border crossing ( on the GPE - GPE border ) . On TIME CARDINAL DATE , during a routine inspection by ORG , which continued on DATE , CARDINAL packages of cocaine were discovered in CARDINAL cans containing acrylic paint . The total weight of the drugs was QUANTITY . ”

The judgment , which runs to CARDINAL pages , was based on the following evidence : the applicants’ statements ; statements from CARDINAL witnesses for the second applicant ( including his wife and father , who confirmed that he had spent TIME DATE at home and had returned TIME to GPE customs terminal ) ; statements from CARDINAL customs officials who searched the truck at the customs terminal ; the statements given by the experts PERSON and ORG ; the statements of witnesses PERSON and GPE who were questioned by the investigating judge of ORG ; and a considerable amount of material evidence , including expert reports ORG . CARDINAL/CARDINAL , CARDINAL/CARDINAL and DATE , and a detailed list of calls made from the applicants’ mobile phones .

NORP In addition to the facts indicated above ( see paragraph CARDINAL above ) , the trial court also established that the second applicant had arrived in GPE on DATE ; that he had called GPE regarding the shipment ; that on DATE the cans had been loaded onto his truck and he had left for GPE ; that he had spent TIME in the truck at Pec customs terminal ; that on DATE the truck had been searched ( using police dogs ) at that terminal ; that on TIME the truck had remained at the terminal and the second applicant had spent TIME in a hotel ; that he had returned to the terminal on DATE ; and that at TIME . DATE he had left , escorted by GPE customs , for the GPE border crossing , where he had arrived at TIME . on DATE . The truck had remained at the customs terminal TIME and the second applicant had spent TIME at home . At TIME . on DATE he had come back to the terminal , where the truck had been searched and drugs had been found with the assistance of an X - ray van . On the basis of a detailed list of telephone calls , the court established that there had been intense communication between the applicants DATE and DATE ( the first applicant had called the second applicant CARDINAL times , and he had called her CARDINAL times ) , and that they had telephoned GPE and L.S. Furthermore , the NORP company specified in the freight documentation as the recipient of the paint did not exist according to NORP official records .

The court referred to the expert reports and considered the experts’ statements ( see paragraphs CARDINAL above ) on the basis of which it established the relevant facts regarding the quality and quantity of the drugs found . It further reiterated the reasons for which it had refused the applicants’ requests for an alternative expert examination ( see paragraph CARDINAL above ) .

The trial court presented an outline of the statements made by ORG and stated , inter alia , that :

“ ... The court fully accepts the statements of witnesses GPE and GPE .... The statements of these witnesses were obtained on the basis of a request ( addressed to the GPE ’s authorities ) ( по пат на замолница ) issued after a prior decision made on record at the trial . The parties and [ the applicants’ ] representatives had no comment ( about that decision ) [ nor ] had they voiced any objection when these statements were read at the trial . They did not make any suggestions regarding these statements ... ”

As to the second applicant , the trial court stated , inter alia , that :

“ ... The court assessed [ the second applicant ’s ] defence that he had not entered into an agreement with [ the first applicant ] to transport drugs ... , but rather that the agreement concerned the transportation of acrylic paint ... that drugs had never been mentioned in their discussions , that the freight documents referred only to acrylic paint ... that during the transport , he had spoken CARDINAL times by telephone with [ the first applicant ] . The court did not accept the defence of the accused since it was contrary to his actions and the admitted evidence in support of the indictment ... [ The second applicant ] does not deny that by having transported the paint , he also transported the cocaine ... The court can not accept [ his ] defence that he did not know that there was cocaine in the cans because it is not supported by any evidence and it is contrary to his actions ‒ he transported the drugs from Bar to the NORP border and ( contrary ) to admitted evidence – cocaine found in the cans , which was noted in the certificate of temporary seized objects ... signed by [ the second applicant ] who did not contest the signature and the confiscation of the cocaine at any stage of the proceedings ... ”

The applicants appealed against the trial court ’s judgment . They reiterated that the experts had not been independent ( given that the ORG had operated within ORG ) and in this respect they referred to the ORG ’s judgment in the LOC case ( see LOC v. the former GPE , no . CARDINAL , DATE ) . The first applicant further alleged that the trial court had refused her request for an alternative expert examination , notwithstanding that ORG Институт за PERSON was also authorised to conduct such an analysis , that the trial court had not explained the discrepancy between the gross and net weight of the drugs found , and that the court had accepted that the packages containing the drugs had been submerged in acrylic paint , which contradicted the experts’ findings regarding the type of the paint involved ( see paragraph CARDINAL above ) . She also complained that she had not been allowed to consult the case file during the investigation , which had affected her ability effectively to prepare her defence . Furthermore , her defence rights had been unjustifiably restricted since she had not been given the opportunity to attend the examination of witnesses PERSON and GPE before ORG . In this respect she alleged that she had not been informed of the questions put to these witnesses by the trial court . The second applicant complained that there had been no evidence that he had concluded an agreement ( with the first applicant ) and , in particular , that he had known that he was transporting drugs . In the absence of any evidence confirming his intention to transport drugs , no criminal liability could be attributed to him .

On DATE ORG held a public session at which , in presence of the applicants and their representatives , it dismissed the appeals and upheld the trial court ’s judgment . As to the first applicant ’s complaint concerning the requests she had made in the pre - trial proceedings to consult the case file , the court stated :

“ ... On CARDINAL DATE [ the first applicant ] , in the presence of her lawyer , was informed about the charges against her ... ( and ) that she was not obliged to answer the questions and present her defence , but she stated that she would give a statement in any case after the available evidence had been presented to her ... On DATE she gave a statement in the presence of her representative ; the questioning continued on CARDINAL DATE . [ On both the occasions ] on which she gave a statement before the investigating judge , she had had the time and the facilities to prepare her defence and the possibility of communicating with her legal representative ...

Under section CARDINAL of LAW , the accused is entitled to consult the case file and ... the evidence after being questioned . In the present case ... it is clear that the trial court did not violate the accused ’s right of defence ...

... regarding the alleged violation of LAW ... it is evident that after the investigating judge had questioned [ the first applicant ] ... [ she ] gave a detailed statement which was duly noted in the court record and which she had read and signed ...

... The lawyer requested and was given access to the file before he objected to the indictment ... Moreover , the trial court established all the relevant facts at the trial ... ”

As regards the expert evidence , the court established that all the expert reports admitted as evidence had confirmed that the substance found in the cans had been cocaine ; in the statement of CARDINAL DATE , PERSON had confirmed that all CARDINAL packages had been examined using so - called “ speedy methods ” and randomly - chosen packages had then been fully analysed ; the quantity of the drugs had been established on the basis of ENFSI recommendations . The court further dismissed the ORG complaints about the alleged lack of independence of the experts , finding that the expert examination ( no . DATE ) had been ordered by the court , that the expert findings had not been called into doubt , and that they had been confirmed at the hearing by the experts , who had been warned about the consequences of false testimony . Lastly , the court held that a copy of expert report no . DATE had been served on the applicants and they had been provided with a reasonable opportunity to challenge it .

As regards the witness evidence produced by ORG in GPE , the court held that they had been heard in response to the request by the trial court made at the hearing dated DATE ; the applicants and their representatives , who had attended that hearing , had not objected , nor had they sought to attend the questioning of these witnesses ; the ORG statements had been read out at the trial and the applicants had not objected to them . The court concluded that this evidence had therefore been accordingly lawfully obtained .

As to the second applicant ’s complaint that he had not known that he was transporting drugs , the court stated :

“ ... such an allegation is contrary to the established facts based on admitted evidence concerning the actions taken by [ the second applicant ] and his criminal liability ... the court does not accept [ his ] allegations because on the basis of all evidence admitted at the trial , [ the trial ] court correctly established the relevant facts concerning the actions taken by [ the second applicant ] ... ( these ) allegations were assessed by [ the trial ] court ... ( which ) gave reasonable grounds why it did not give credence to them ... it was established beyond any doubt that drugs ‒ cocaine ‒ had been found in some paint - cans transported by the vehicle driven by [ the second applicant ] . ”

The court further noted that :

“ ... the large quantity of drugs , the way they were procured and transported , and the actions taken by the accused , suggest that the cocaine was transported for the purpose of selling it and not for any other purpose ...

On the basis of the admitted evidence , the analysis and assessment thereof , ( and ) the accused ’s behaviour before they reached agreement concerning the shipment , the fact that they communicated between themselves , during the shipment , that is to say before , during and after the crime ... it can be concluded that the accused knew and were aware of their actions , including the crime that they had committed ... In this connection , according to this court , there is no logical economic reason to import acrylic paint from GPE , given the fact that transport costs from GPE to the ( final ) destination ... would be higher than its value . It can be inferred from this that the accused knew that it was about the transportation of drugs and not of acrylic paint . Having also in mind the intensity of contacts between the accused , and the contacts with the witnesses PERSON and GPE in GPE , ... together with the fact that [ the first applicant ] provided [ the second applicant ] with written documentation ... issued by her company PERSON , stipulating that the cargo should be transported to GPE to company S. ‒ which , on the basis of the available evidence , does not exist ‒ it becomes clear that [ the applicants ] knew and were aware of their unlawful actions and the crime committed ... ”

The applicants lodged requests before ORG for extraordinary review of the final judgment ( барање за вонредно преиспитување на правосилна пресуда ) . They reiterated the allegations of violation of their defence rights , in particular , concerning the expert evidence , examination of witnesses PERSON and GPE and lack of reasoning . In this latter context the second applicant reiterated that there had been no evidence showing that he had known that he was transporting drugs hidden in hermetically closed cans . His telephone contacts with the first applicant and GPE and the court ’s conclusion regarding the economic rationale for importing paint from GPE were not conclusive given the fact that he was the driver whom the first applicant had engaged to transport the paint from GPE to GPE . The first applicant complained that it had not been established ( or indicated in the operative part of the trial court ’s judgment ) that the drugs had been transported for the purpose of selling them . She also complained that her defence rights had been violated in the investigation .

On DATE ORG upheld the established facts and dismissed the ORG requests for the same reasons given by ORG . In this connection it stated , inter alia , that :

“ On the basis of all admitted evidence , the intensity of telephone contacts between the accused , as well as contacts with witnesses PERSON and GPE , the accused ’s behaviour before they reached agreement concerning the shipment , the intensive and multiple contacts between themselves during the shipment , when the crime had been committed and after it had been discovered , the trial court correctly concluded that the accused knew and were aware of their actions regarding the unlawful transport of drugs . ”

ORG further added :

“ ... As to the allegations raised in the requests that the expression “ for the purpose of selling ( заради продажба ) ” is missing from the operative part of the trial court ’s judgment , the court considers that ( this omission ) does not render it defective , since that can be presumed ( произлегува ) in view of the actions undertaken by [ the applicants ] when committing the criminal offence ... From the description of [ the applicants’ ] actions there is no doubt that drugs were transported for the purpose of selling and that such a large quantity of drugs , namely pure cocaine , can not be for [ the applicants’ ] personal use . Even more , it endangers the life and health of CARDINAL of people on the planet . ”


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)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation .

On DATE his statements were taken by the police in the absence of a lawyer . The applicant confessed to being a member of an illegal organisation . He gave a detailed account of its structure and his acts within the illegal organisation . On DATE the applicant was heard by a public prosecutor and an investigating judge respectively . In these statements to the public prosecutor and the investigating judge , he denied his police statements and argued that they had been taken under duress . Following his questioning , the investigating judge ordered that the applicant be held on remand .

On DATE a public prosecutor at ORG filed an indictment with that court , charging the applicant under LAW of the former LAW .

State Security Courts were later abolished by PERSON no . CARDINAL of DATE , and the case was transferred to ORG .

On DATE ORG found that , inter alia , on the basis of the applicant ’s statements to the police , the public prosecutor and the investigating judge , the applicant had committed the offence under LAW of LAW and sentenced him to DATE and DATE imprisonment .

On DATE the applicant ’s lawyer appealed against the judgment , arguing that the applicant had been convicted on the basis of statements taken under duress .

On DATE ORG upheld the judgment of the first - instance court .


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);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in DATE . According to the most recently available information , in DATE the applicant was placed by a court under house arrest in the town of GPE , GPE . The applicant has not informed ORG of his current whereabouts .

In DATE the applicant was arrested on suspicion of drug trafficking .

On DATE the applicant was placed in the Starobilsk Pre - Trial Detention Centre ( Старобільський слідчий ізолятор ) ( “ the GPE ” ) . On arrival the applicant was examined by a general practitioner , a psychiatrist , a dentist , a tuberculosis specialist and a dermatologist . According to the Government , the applicant was diagnosed with human immunodeficiency virus ( “ HIV ” ) ( clinical stage CARDINAL ) , chronic bronchitis , toxic encephalopathy and neuropathy caused by prolonged use of drugs , and tuberculosis residual changes . At that time the applicant ’s weight was QUANTITY . The applicant is QUANTITY tall .

According to the ORG , on DATE the applicant was offered a CDCARDINAL + cell count , which he refused . The case - file material includes a written note dated DATE that the applicant refused “ a blood test ” . It is signed by a member of staff of the GPE medical unit .

According to the ORG , DATE and DATE the applicant did not ask for any medical assistance in the GPE . However , it appears from the applicant ’s medical file that in DATE he was examined by a tuberculosis specialist and underwent an QUANTITY - ray . According to the medical records provided by the Government , in DATE , while briefly detained in a different temporary detention facility , the applicant had bronchitis and complained of kidney pain .

On DATE , following the applicant ’s complaint of a cough and a fever , he was diagnosed with chronic bronchitis and was prescribed treatment .

On DATE the applicant was found unconscious in his cell .

On DATE the Head of the GPE requested ORG to accelerate the proceedings in the applicant ’s case or to release him on an undertaking not to abscond , since the applicant needed urgent medical treatment in a specialised hospital .

On DATE the above court decided that the applicant should remain in pre - trial detention but should be placed either in a specialised prison hospital or in a civilian hospital .

According to a medical certificate , CARDINAL the applicant was in hospital . He was diagnosed with acute serose meningoencephalitis . It was noted that the applicant was “ in a soporose state ” .

On DATE the applicant was returned to the GPE , where he stayed in the medical unit until DATE . During this period the applicant was also an inmate at least once in FAC ( “ FAC ) ( FAC ізолятор тимчасового тримання ) .

On DATE the applicant requested under Rule CARDINAL of ORG that the respondent Government be asked to place him in a hospital . It was argued that the applicant needed additional examination , in particular by a psychiatrist , in order to be prescribed anti - retroviral therapy ( “ the ART ” ) , and for the stage of his tuberculosis to be correctly determined and for appropriate treatment to be prescribed , as well for him to be provided with adequate medical assistance in respect of the epilepsy from which the applicant allegedly suffered .

According to the applicant ’s lawyer , PERSON , at DATE she received a call from an unknown man who presented himself as an employee of a prosecutor ’s office . The person wanted to know whether PERSON indeed represented the applicant and whether the applicant had lodged an application to ORG . PERSON replied positively to both questions .

On DATE ORG ( PERSON територіальне медичне ORG ) informed the applicant ’s lawyer that since DATE the applicant had been registered as receiving regular medical examinations by a doctor of the “ Trust ” practice based in GPE . He was diagnosed as HIV - positive ( clinical stage CARDINAL ) , with chronic bronchitis and toxic encephalopathy . On DATE his CDCARDINAL + cell count was CARDINAL ( PERCENT ) . The applicant refused treatment despite the deterioration of his condition . In DATE he was diagnosed as HIV - positive at clinical stage CARDINAL . The applicant did not take ORG , as he had refused the relevant examination . On DATE the same information was submitted to the GPE .

The Government submitted that DATE and DATE the applicant had received treatment for acute serous cerebromeningitis . Moreover , on CARDINAL DATE he was X - rayed and seen by a tuberculosis specialist . Following the results of those examinations the applicant was diagnosed with residual changes in the right lung as a result of tuberculosis from which he had already recovered . There was no need for anti - tuberculosis treatment .

On DATE the applicant was examined by a neuropathologist . He was diagnosed with HIV ( clinical stage CARDINAL ) and toxic encephalopathy .

On DATE ORG sentenced the applicant to CARDINAL half years’ imprisonment for drug trafficking .

On DATE the applicant ’s CDCARDINAL + cell count was performed with a result of CARDINAL cells ( PERCENT ) .

By a letter of CARDINAL DATE the Government informed the ORG that there was no need for the applicant to be hospitalised .

On DATE the applicant was examined by an infectious diseases specialist and diagnosed with HIV ( clinical stage CARDINAL ) , chronic bronchitis , residual effects of tuberculosis , and toxic encephalopathy . ART was recommended . On DATE ORG approved the applicant ’s admission to ORG . CARDINAL Hospital ( лікарня при Луганському слідчому ізоляторі № DATE ) .

The applicant was in that hospital CARDINAL DATE . In addition to the above diagnosis the applicant was diagnosed with weight loss of PERCENT and chronic hepatitis C. The applicant underwent a full blood count , biochemical blood test , sputum and urine test , X - ray and ultrasonography . The applicant was given medication . On discharge a CDCARDINAL + count was recommended , among other things .

On DATE the ORG refused the applicant ’s request under Rule CARDINAL of ORG .

The applicant was also in ORG DATE and DATE and DATE and DATE . On DATE he had a CDCARDINAL + cell count with a result of PERCENT , or CARDINAL cells . On DATE ART was prescribed for the applicant .

On DATE ORG of Appeal quashed the decision of DATE in the criminal case against the applicant and remitted the case for a fresh court consideration .

On an unknown date the applicant ’s lawyer applied to the local court for the applicant ’s release , stating that DATE and DATE the applicant had received no medical treatment . After DATE the applicant was in hospital for some time , but was not now receiving in - patient care .

On DATE the ORG released the applicant and placed him under house arrest . The court noted that the case - file materials contained enough evidence to satisfy the applicant ’s lawyer ’s request . The court further noted that the applicant required medical treatment which he could not receive in detention .

On DATE the applicant was placed in FAC for the duration of the consideration of his case by the court .

At TIME on DATE an ambulance was called for the applicant as he had acute pain in the liver . The applicant was examined and it was recommended that he see a gastroenterologist . The applicant was then taken to ORG and brought back to the ORG at TIME

According to the applicant , at TIME he was beaten up in the ORG by CARDINAL policemen allegedly from the regional police office . They told him to write that the GPE had provided him with adequate medical treatment . CARDINAL of the police officers hit the applicant CARDINAL or CARDINAL times in the liver and the other hit him CARDINAL times in the kidneys . After that the applicant wrote the statement requested .

On DATE the applicant ’s lawyer , PERSON , complained about this matter at a court hearing . An ambulance was called for the applicant and he was diagnosed with a “ possible blunt abdominal trauma ” . He was taken to hospital and examined by a surgeon . The latter noted that the applicant complained of pain in the upper abdomen and weakness , but upon examination the applicant ’s abdomen was “ soft and pain - free ” . It was concluded that there was no “ acute surgical pathology ” and that the applicant could be detained in the ORG .

On DATE the applicant and his lawyer complained about the beatings to a prosecutor . The applicant stated that on DATE at TIME unknown policemen had visited him in the ORG . He was subjected to physical and psychological pressure and forced to withdraw his application about lack of adequate medical assistance . They also forced him to confess to a crime he was charged with .

In the course of the investigation the applicant further testified that on DATE at QUANTITY unknown policemen had questioned him in the ORG . When he refused to write that he had no complaints about the medical treatment in the GPE , the policemen hit him several times in the abdomen and kidneys . After that the applicant wrote that he had been provided with adequate medical assistance in the GPE , that he had no complaints , and that there had been no psychological or physical pressure . The policemen took a written statement from him and he was taken to the shower room and then back to his cell .

On DATE the forensic medical expert , having examined the medical conclusion of the surgeon of DATE and the testimonies of the same surgeon given during the investigation , concluded that “ when examined by a surgeon on DATE the applicant had no injuries ” .

On DATE ORG terminated the proceedings for absence of evidence of crime . Police officers and others present in the ORG on DATE gave a detailed description of what had happened there DATE and stated that nobody had beaten the applicant . In particular , at TIME the applicant complained that he wanted a different pillow . The applicant was guided to the room where the bedding was kept . The applicant spent TIME there but did not choose a pillow . Then he was guided to the room where personal belongings were kept because he wanted something from his bag . After that the applicant wanted to take a shower but was told that there was no hot water . Since he wanted to check this himself an ORG guard guided him to the shower . Later the applicant was placed back in his cell . The surgeon , who examined the applicant on DATE , testified that the applicant had been brought to him in order to check whether the applicant could be detained in the ORG . The applicant had no injuries . The prosecutor also referred to the conclusion of a forensic medical examination that the applicant had no injuries .

The applicant appealed against this decision to a court . On DATE the ORG quashed this decision . The court questioned the applicant and his cellmate , PERSON , and considered that the investigation had not been thorough , since the applicant ’s cellmates had not been questioned .

On DATE the ambulance station informed ORG that on DATE the applicant had been examined and diagnosed with “ blunt abdominal trauma ” . He had complained that he had been beaten up in detention . The applicant was taken to hospital for the diagnosis to be confirmed .

On DATE the proceedings were terminated for absence of evidence of crime . In addition to those previously questioned more evidence was added .

NORP In particular , in the course of the investigation the applicant ’s cellmate PERSON testified that on DATE the applicant had been taken out of the cell . He was absent for TIME . Upon return the applicant told him that CARDINAL unknown policemen had forced him to refuse medical treatment in the GPE . When the applicant refused to do so he was beaten . After that the applicant agreed to write that he did not need medical assistance . According to PERSON , the applicant had a red cheek and cheekbone as well as a swollen liver . The policeman who brought the applicant back to the cell allegedly said that CARDINAL of the officers was a certain So . from ORG . CARDINAL .

Another of the applicant ’s cellmate testified that when he arrived at the ORG he saw the applicant lying on the bed . The applicant told him that policemen had beaten him to force him to confess . The applicant ’s cellmate PERSON testified that he had been sleeping and knew nothing , while the applicant ’s cellmate PERSON refused to testify at all . A police officer , So . , was also questioned and testified that on DATE he had been at his work place . It was also noted that the surveillance system in the ORG was not working DATE and DATE .

On DATE the decision of DATE was quashed by ORG . It was noted without any further details that “ the decision to terminate criminal proceedings had been premature and unsubstantiated , and that a number of procedural steps had not been performed ” .

On DATE the criminal proceedings were again terminated for the absence of evidence of crime .

On DATE the ORG quashed the decision of DATE . The court found that after DATE an investigating officer had not properly looked into the applicant ’s lawyer ’s complaint . It was also not established why it was impossible to hold a confrontation between the applicant and the police officer So .

No further information about these proceedings was provided by the parties .