Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);No violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

In DATE ORG of GPE registered a non - profit non - governmental association , “ The Art of Living ” ( hereinafter “ the association ” ) . The goals the association set out in its charter included the “ promotion of social adaptation ” , the popularisation of a healthy lifestyle , helping people in stressful situations and improving social and family relations . In practical terms the activity of the association consisted of training sessions , lectures , personal consultations and the like . Participation in the “ programmes ” of the association was offered to anyone interested and was free of charge , although participants were encouraged to make voluntary contributions to support the activities of the association . The association also issued a number of brochures containing information about its goals and basic principles . The brochures explained that the association was inspired by the teachings of PERSON , a modern NORP spiritual leader . According to CARDINAL of the brochures , participation in the programmes of the association would help its participants to fight insomnia and depression , strengthen their cardio - vascular systems , control their emotions and boost their natural defence mechanisms .

The association operated without a licence . On DATE the association applied to ORG for a licence . On an unspecified date in DATE the ORG confirmed to the association that it did not require a licence to run its programmes , stating the following :

“ ... Your type of activity , [ namely ] yoga seminars with application of the postures ( asana ) of ORG , ORG , and ORG ( practising kriya pranayama , i.e. rhythmical breathing at different speeds ) does not belong to the category of sports activities or health - improving gymnastics and is not listed in ORG ” .

In DATE PERSON , who was at the time a DATE student at ORG in Irkutsk ( hereinafter DATE “ the university ” ) , enrolled in the basic programme of the association , “ The Healing Breath Workshop ” . She enrolled together with her twin sister , ORG The applicant was one of the “ instructors ” of the association responsible for that programme . The course included elements of yoga , special breathing techniques , mantra singing , meditation , listening to music , aromatherapy and other similar practices . Participants were recommended to follow a certain diet and do exercises at home . The applicant claimed that she had been doing the exercises regularly herself since DATE .

NORP In DATE PERSON and her sister started to attend daily training sessions on the premises of the association . PERSON contributed MONEY ( CARDINAL ) to the association as a gift . Upon completion of the course Ms GPE was encouraged to enrol in an advanced course called “ Eternity ” , which was run by a different instructor , PERSON

At a certain point PERSON started experiencing serious psychological problems . Her mother called the association and blamed the instructors for having turned Ms S.D. “ into a zombie ” . According to the applicant , PERSON mother was a fervent NORP and did not approve of her ORG interest in a group which the mother described as a “ sect ” .

According to ORG mother , after the training sessions PERSON started having hallucinations and delusions , lost contact with her family , skipped classes at the university , and almost completely stopped eating . On DATE PERSON mother called the emergency psychiatric services for her daughter ; a doctor administered an injection , which did not help . Shortly thereafter PERSON fainted and was hospitalised .

NORP In the following months PERSON was hospitalised several times . The diagnosis initially made was “ reactive psychosis ” . Later the doctors described her mental condition as a “ stress - related schizoid disorder ” . The parties disagreed as to whether the disorder of PERSON was serious enough to be characterised as “ schizophrenia ” according to the classifications of mental illness in use in GPE ; subsequent expert opinions were not unanimous on that point .

According to the doctors at the clinic where Ms GPE was treated , her mental condition was related to her participation in the programmes of the association , which was referred to in the medical record of DATE as a “ sect ” . Later entries in her medical record also mentioned the “ religious ” character of her delusions . Following the admission of PERSON to the clinic , an internal inquiry was conducted , which concluded that her medical condition was of a “ religious and occult nature ” and had been caused by her participation in the programmes of the association .

NORP In DATE the association ceased its activities due to lack of funds .

In DATE that followed , the diagnosis of PERSON was re - formulated several times ; in DATE the doctors concluded that she was suffering from schizophrenia .

On DATE an investigator from the GPE Region police force questioned PERSON in connection with the events of DATE . According to her testimony , the association received payment from the participants of the programme ; the programme consisted of breathing techniques , listening to audio - recordings of the voice of the guru , and other similar practices which LOC characterised as brainwashing . Ms GPE testified that she had almost stopped eating completely during the period she was attending the courses because the teachers had told her that food was poison . She had also dropped out of her course at the university . At some point she had lost track of the events and had returned to her normal self only in the clinic .

On an unspecified date in DATE the police investigator ordered an expert examination of the alleged victim , PERSON

On DATE Ms GPE was examined by a group of psychiatrists , including Dr Gul . , PERSON , and PERSON . PERSON . acted as the “ rapporteur ” for the group of experts . In report no . CARDINAL , the group concluded that PERSON had developed an “ acute schizoid psychotic disorder ” which was related to her participation in the programmes of the association . The experts concluded that after DATE Ms GPE had regained her mental health and , at the time of examination , was capable of participating in the proceedings and giving accurate testimony to the investigator and before the court .

On DATE an investigator from the GPE Region police department opened a criminal investigation under Article CARDINAL of LAW ( “ Illegal medical practice ” ) . The investigative authorities suspected that members of the association had been involved in quackery and had dispensed medical services to PERSON ( “ the alleged victim ” ) without the necessary licences and training . However , the investigative authorities did not charge anybody with that crime when opening the case .

On DATE the investigator ordered an expert examination of the activities of the association . In particular , the investigator sought to establish whether the association had been dispensing medical services to the participants of the programmes , and whether the alleged victim had suffered any damage to her health as a result of participating in those programmes . The examination was entrusted to ORG ( MFB ) of the regional ORG . An expert team was put together which consisted of PERSON . ( the president ) , PERSON . , Dr GPE . , and PERSON .

On DATE the investigative authorities searched the applicant ’s house and seized documents and literature related to the activities of the association .

On DATE the ORG delivered the first report . The report was based on an examination of the materials in the criminal case file . The report noted that the techniques used by the association in its programmes were known both in conventional ( scientific ) and alternative ( “ folk ” ) medicine circles . However , it did not answer the question as to whether those techniques were medical . It also concluded that the medical condition of the alleged victim was “ most probably ” related to her participation in the programmes of the association .

On DATE the investigator asked the MFB to carry out an “ additional ” ( dopolnitelnaya ) expert examination of the activities of the association . The ORG expert team was composed of PERSON . ( the president ) , PERSON . and Dr PERSON . Again , the experts did not examine Ms GPE in person and based their conclusions on the written materials contained in the case file .

On DATE the ORG delivered a second report as requested by the investigator ( no . CARDINAL ) . The MFB again did not give a definite answer to the question of whether the association had been dispensing medical services . It noted that the charter of incorporation and other documents pertaining to the association did not contain any indication as to the medical nature of its programmes . In the opinion of the experts , it was important to distinguish between the “ Eternity ” programme and the other programmes of the association .

The experts also concluded that in the particular case of the alleged victim the techniques used by the association were at the origin of her mental disorder . The basic programme , referred to by the experts as “ The Art of Living ” , had weakened the alleged victim physically . Her subsequent involvement in the “ Eternity ” programme had aggravated her somatic condition with a psychiatric disorder .

NORP In DATE the investigator in charge of the case requested the opinion of ORG concerning the activities of the association . On DATE the Acting Minister of ORG replied in the following terms :

“ The practising of folk medicine ... is subject to the licensing requirement laid down in LAW DATE “ On the licensing of certain types of activities ” , Governmental Decree no . CARDINAL of DATE “ On the licensing of medical activities ” , and Order of ORG no . CARDINAL of DATE “ On the organisation of the licensing of medical activities ” , as well as on the basis of the “ Basic Principles of ORG ” adopted on DATE .

Order of ORG no . CARDINAL of DATE ... is no longer in force . At present the list of medical services ... is set out in Order no . CARDINAL of DATE .

Breathing techniques and other methods listed in the list of medical services , as well as hypnotic infusion , belong to the category of ‘ medical ORG and must be licensed under the head ‘ PERSON on the basis of :

( CARDINAL ) Order of ORG no . CARDINAL of DATE “ On psychotherapeutic treatment ” ;

( CARDINAL ) Methodological recommendations ... which are annexed to Order no . CARDINAL ;

( CARDINAL ) NORP Encyclopaedia by PERSON ( DATE ) .

The use of trancelike states as a part of LOC psychotherapy is considered as a medical practice . However , that technique is not used in the ‘ Art of ORG programme ; [ the programme is based on the use of ] relaxation on the basis of traditional meditation within the framework of spiritual practices , which do not require a license .

Physical exercises on the basis of yoga asanas [ ( postures ) ] are not medical activities and are not liable to the licensing requirement .

The term ‘ private medical ORG includes both medical services and services of folk medicine , so those notions are different . ”

On DATE the investigator questioned PERSON again . She largely confirmed her earlier testimony . She also explained that as a part of her participation in the “ programme ” she had had an obligation to practise special breathing techniques TIME for DATE in a row , and that she had not been allowed to eat meat or fish in any form . She described in detail the “ Eternity ” programme , which was conducted by the applicant ’s co - accused , PERSON , and described the effects that programme had had on her physical condition .

On DATE the investigator ordered a new expert examination of the activities of the association . The examination was entrusted to PERSON , chief psychotherapist of ORG .

NORP The report was prepared on DATE . A copy of that report was submitted to ORG but is only partially legible .

The first question put to the expert concerned the licensing requirements for folk medicine . The expert replied that the licensing of folk medicine was regulated by Governmental Decree no . CARDINAL of DATE .

The investigator further asked whether certain practices ( such as “ breath gymnastics ” , “ hypnotic infusion “ , “ physical exercises on the basis of yoga postures ” , and “ entrancement ” ) belonged to the methods of folk medicine and required a medical licence . As to “ yoga postures ” , the expert concluded that they were not “ medical activities ” and did not require a licence . Concerning “ breath gymnastics ” and “ hypnotic infusion ” , the expert confirmed that these were well - known psychotherapeutic methods , but they had not been used by the association . Elements of those programmes could be used by medical doctors as supplementary methods of psychotherapeutic treatment ; however , the “ Art of Living ” programmes , according to the expert , did not have any medical purpose , were not aimed at curing ailments and , therefore , were not “ medical ” .

On DATE the investigator ordered a “ forensic and legal examination ” of the activities of the association . It was entrusted to ORG .

On DATE Dr Iv . , a doctor in psychiatry and the chief psychiatrist of ORG of GPE , drew up a report in which he concluded that the activities of the association had been “ medical ” in nature and had thus required a licence .

On DATE the applicant was formally charged . She pleaded not guilty as from the first questioning .

On DATE the defence obtained an expert opinion by CARDINAL doctors from ORG ( including CARDINAL professor of medicine ) . The expert team examined CARDINAL people who had participated in the “ Art of Living ” programmes for DATE . The team concluded that most of the people in the test group had observed various positive effects of the programmes , including easing of their chronic diseases , restoration of psychological balance and increased efficiency at work . The report emphasised that “ moderate and consistent practice of yoga within the ‘ Art of ORG programme is not incompatible with chronic diseases or old age and can be recommended for rehabilitation after traumas , surgical operations and diseases ” . It is unclear whether that written opinion was added to the case file .

On DATE the applicant ’s lawyer asked the investigator to carry out an additional forensic examination . From the materials in the case file it is unclear whether that examination was supposed to cover the activities of the association , the state of health of Ms GPE or another issue . On DATE the investigator replied that all the necessary expert examinations had already been carried out , that the applicant ’s guilt had been established , and that there was no need to carry out any new examinations .

On DATE the investigator commissioned a new expert examination on the activities of the association , which was again entrusted to Dr Iv . On DATE the defence was handed a copy of the investigator ’s decision to order an expert examination .

The report was produced on DATE . It was based on the written materials of the case file . Dr Iv . started by analysing the applicable legislation . LAW of LAW of DATE provided that the practising of alternative medicine ( also referred to in the law as “ folk medicine ” , “ traditional medicine ” or “ healing ” ) required a “ healer ’s diploma ” . LAW of LAW required a private practitioner to have a doctor ’s or paramedic ’s degree , a “ specialist certificate ” and a licence ( for example , for practising “ alternative medicine ” ) . Decree no . CARDINAL of ORG of DATE provided that folk medicine was subject to the licensing requirement .

LAW of DATE ( no . CARDINAL-FZ ) and Government Decree no . CARDINAL of DATE included folk medicine in the list of activities subject to the licensing requirement .

Order of ORG no . CARDINAL of DATE contained a glossary of “ simple medical services ” , which included , amongst other activities , items ORG . PERSON ( “ psychotherapy ” ) and DATE ( “ hypnotherapy ” ) . The expert concluded that such services were covered by the licensing requirement and should be provided by specialists in the relevant fields .

Furthermore , referring to Government Decree no . CARDINAL of DATE on the licensing of medical services , the expert indicated that a person providing medical services was required by law to have , in addition to a special degree or training , a certain amount of work experience in their specific field of medicine . Decree of ORG no . CARDINAL of DATE set out a list of what constituted “ medical services ” , which included a section on folk medicine . The Decree stipulated that a licence was required to practise folk medicine . On DATE the First Deputy Minister for ORG issued a “ Methodological Directive on ORG ” , which described certain activities as falling within the ambit of folk medicine ; the list included “ traditional systems of invigoration ” .

The expert also studied specialised medical literature . He concluded that the applicant had used psychotherapeutic methods which were described in the medical literature , such as “ trance inducement ” , “ breath control ” and “ therapeutic gymnastics ” . The latter , according to ORG recommendation no . CARDINAL of DATE , could include elements of yoga . The expert concluded that the use of such methods placed the applicant ’s activity within the scope of “ private medical practice ” , which needed a licence under the heads of “ psychotherapy ” and “ therapeutic gymnastics ” .

The expert referred to ORG of DATE , which characterised yoga as a “ traditional method of healing ” . The same Directive noted that “ traditional methods of healing ” , including yoga , were not officially recommended by ORG for application in medical practice , and , therefore , were not covered by a licensing regime . From that , the expert inferred that in GPE “ official application of traditional methods of healing ” was not allowed . The expert further referred to LAW DATE which warned against the use of “ occult practices ” and other non - recommended healing techniques .

The expert noted that the charter of incorporation of the association did not mention that it had been created to dispense medical services . However , the brochures issued by the association described the effects of its “ programmes ” in medical terms , for example : “ a complex of detoxicating dynamic exercises ” , “ improved functioning of all internal organs ” , “ harmonisation of all levels of the personality ” , “ controlled meditation and certain other techniques which guarantee deep relaxation , appeasement of emotions , and help to overcome stress ” , and so on . The brochures referred to cases of seriously ill individuals suffering from , inter alia , insomnia and depression , having been cured following completion of the association ’s programmes . The techniques used in the programmes were described as a “ synthesis of old wisdom and modern science ” . On DATE PERSON obtained patent no . CARDINAL “ on the breathing technique ” which specified that this technique could be used for medical purposes .

The expert further studied witness evidence from former participants of the programmes of the association . According to some of the participants , the instructors told them that they had medical diplomas and that the programmes were supposed to have healing effects . The participants were required by the instructors to fill in forms which contained questions about their health . The expert also analysed their description of the techniques used in the programmes , such as relaxation techniques , physical exercises , breathing techniques , meditation and so on .

To describe the activities of the association its brochures used terms such as “ psychological adaptation ” , “ autogenic training ” and “ relaxation ” which could be found in specialised medical literature and were in fact techniques of psychotherapy and psychiatric treatment . The expert compared the techniques used by the instructors of the association with “ holotropic therapy ” , which is a method used in psychotherapy , and pointed out a number of similarities .

On the strength of that evidence the expert concluded that the activities of the association could be characterised as “ folk medicine ” , which required a license . The activities of the association , in the opinion of the expert , were medical in nature .

On an unspecified date in DATE the defence asked the investigator to question a number of witnesses in order to decide whether there was a need for a further psychiatric examination of the victim . On DATE the investigator replied in the negative , stating that the personality of the victim had already been thoroughly examined and that the investigator had obtained an expert report and questioned CARDINAL of the members of the expert team , PERSON .

DATE . On DATE Prof . PERSON from ORG situated in GPE delivered an expert opinion at the request of the applicant ’s lawyer . Prof . PERSON criticised the earlier expert assessments , which had characterised the activities of the association as “ medical ” . Prof . PERSON asserted that elements of the programmes of the association could be found in many traditional practices , such as yoga , qigong and various martial arts . He also cast doubt on the conclusions of the earlier expert reports that the mental condition of ORG had been caused by her participation in the association ’s programmes . He supposed that her interest in the activities and ideas practised within the association could have been caused by her mental condition .

On an unspecified date the applicant ’s lawyer solicited the opinion of the GPE - based ORG ( ORG ) in respect of the expert opinion of DATE . The applicant ’s lawyer provided the ORG with copies of certain materials from the criminal case file , in particular , reports ORG . CARDINAL and DATE and the witness testimony of PERSON .

On DATE a group of experts from the ORG , composed of CARDINAL psychiatrists , PERSON . and PERSON . , and CARDINAL psychologist , PERSON . , delivered a written opinion . Their report criticised the methods used to carry out the expert examination of DATE which resulted in report no . MONEY ( see paragraphs CARDINAL et seq . ) , and condemned the report as unreliable and incomplete .

The applicant ’s case was heard by Judge PERSON . of ORG .

At the trial the applicant and her co - defendant , PERSON , pleaded not guilty . They acknowledged that neither they nor the other instructors at the association had medical degrees . They also acknowledged that the alleged victim had been their apprentice and that she had had health problems after completing the CARDINAL programmes . However , they denied having caused any harm to the alleged victim and insisted that her mental disorder was related to a pre - existing condition or other life circumstances .

NORP In particular , they claimed that both the alleged victim and her sister had been born and raised in a very religious family , that they had both had problems fitting in at school , and that they had a difficult relationship with their mother . Several members of the alleged victim ’s family had a history of mental disorders , so her own problems could have been explained by a hereditary predisposition . She had started attending the programmes of the association because of her social and psychological problems .

Further , the applicant asserted that the “ programmes ” of the association could not be described as “ medical treatment ” . Since its creation the association had been inspected several times by ORG , which had not detected anything illegal in its activities .

The defence also claimed that the programmes of the association were not “ medical ” in nature , and thus did not require any special education or licence . Their purpose was to help people to attain social and psychological harmony , discover the true meaning of life , and so on . The instructors did not receive any remuneration of their work and their participation in the programmes was voluntary .

In the first round of the proceedings the court questioned several witnesses . They gave evidence about the mental and physical condition of the alleged victim before , during and after her participation in the programmes of the association . They all associated PERSON health problems with her participation in the programmes .

From the materials and explanations produced by the Government it appears that neither Ms GPE herself ( the alleged victim ) nor her twin sister , ORG , appeared in court . Thus , at the hearing of DATE Judge PERSON . stated that according to the medical certificates of DATE and DATE the doctors did not recommend that PERSON take part in the trial as it could cause a relapse . Both medical certificates were issued at the request of PERSON and contained no further information about her state of health or any examination conducted in that connection .

The court heard several other witnesses called at the request of the prosecution , namely , PERSON , the president of the association , ORG , a member of the association and a former teacher of PERSON at university , ORG , a member of the association who had attended the programme together with PERSON ( the alleged victim ) , PERSON . and PERSON The testimonies of those witnesses were generally consonant with the case of the defence .

The court heard an expert for the prosecution , Dr ORG , who had participated in the expert teams which had earlier assessed the materials of the case . Dr ORG was not categorical in her conclusions and testified that she had not been given information or materials about the alleged victim ’s character , social and family life or medical history , and that her conclusion about the link between the programme and the ailments of Ms GPE had been assumptive .

PERSON . , who had participated in the preparation of report no . DATE , was summoned but failed to appear . The judge tried to secure her attendance for DATE through the regional hospital where she worked . However , according to a letter from the hospital , PERSON . was on leave until DATE ; after that date her contract with the hospital would be terminated since she planned to move abroad . At the hearing of DATE the court , at the request of the prosecution , decided to read out Dr Ig . ’s previous testimony . In her testimony PERSON . had asserted that the mental condition of GPE GPE was directly linked to her participation in the programmes of the association .

The court examined written evidence from the case file submitted by the prosecution , in particular , records of the questioning of PERSON , a former teacher who had been Ms GPE ’s class tutor at school , other documentary evidence and official correspondence . The court examined a letter of DATE from the acting chief of ORG . In that letter Ms GPE ’s problems were associated with the activities of the association , which was characterised as a “ sect ” . The court examined search records and items seized during the searches , including brochures , books and audio - cassettes released by the association for its members . The court examined ORG medical history , the expert report by the MFB of DATE , the expert report of DATE and the expert report by Dr Iv . of DATE .

The court also heard other witnesses , who gave circumstantial evidence about the case .

The court questioned a number of witnesses proposed by the defence , namely , PERSON , a former member of the association and an acquaintance of PERSON , PERSON , the association ’s lawyer , and PERSON , who had been contacted by PERSON mother in connection with the mental condition of the former . They all testified that the mental condition of ORG had been caused by pre - existing factors .

A similar statement was made by PERSON , who had prepared a written expert report on GPE GPE ’s case on DATE . PERSON was questioned in the capacity of “ specialist ” .

The court also examined the written opinion of Prof . Z.

On DATE ORG acquitted the applicant and PERSON In particular , the court concluded that the applicant and PERSON had not realised that their activities might fall within the ambit of medical practice or that they could have been harmful to the health of others . The court also found that the programmes of the association did not amount to medical practice .

DATE . The court excluded from evidence the expert reports of DATE , DATE , DATE and DATE as incomplete , self - contradictory and unreliable . The court also detected various irregularities in the way the expert examinations had been ordered and conducted . As to the expert opinion by PERSON . ( reports of DATE and DATE ) the court noted , inter alia , that it had been based on legislation which had entered into force after the events imputed to the applicant and to Ms GPE

The court also refused to admit the report by Prof . PERSON in evidence as it had been obtained in breach of the domestic law , notably because Prof . PERSON had not been informed by the investigator or the president of the court about criminal liability for false statement .

NORP The prosecution appealed .

On DATE the acquittal was quashed by ORG and the case was referred back to the trial court . ORG disagreed with the assessment of evidence by the trial court , and with its decision to declare some evidence , namely , expert reports , inadmissible . ORG also pointed to various procedural shortcomings in the trial proceedings . ORG noted that PERSON should not have been questioned , since he had participated in the proceedings earlier in his capacity as an expert . Amongst other things , ORG recommended that the trial court conduct new psychiatric examinations of ORG , the alleged victim .

In the second round of the trial proceedings the case was heard by ORG in a single - judge formation : first by Judge PERSON and subsequently by Judge PERSON

At the trial both the prosecution and the defence submitted their evidence to the court . The prosecution submitted written expert opinions and witness statements , items of documentary evidence and exhibits obtained at the previous trial or at the investigation stage . The prosecution also submitted medical certificates of DATE and CARDINAL DATE whereby the doctors recommended that the alleged victim refrain from attending court hearings in order to avoid a relapse .

The alleged victim ( Ms GPE ) did not appear in court . As follows from the materials submitted by the Government , her name was on the list of prosecution witnesses to be called . Instead , PERSON sent to the court a written declaration asking the court to discontinue the criminal prosecution of the applicant and her co - accused due to their “ reconciliation ” . She also informed the court that she did not wish to participate in the proceedings .

The District Court heard Ms GPE ( the mother of the victim ) and several other witnesses . Expert PERSON . did not appear ; according to the court , the summons had not been handed to her and had returned by post . The defence insisted that PERSON . be contacted through her employer .

DATE . On DATE the judge sent a request to the town psychiatric hospital concerning the state of health of PERSON , the victim . The hospital replied that they had lost contact with PERSON in DATE , and that LOC had refused to continue to receive out - patient treatment by the doctors of that hospital . The hospital also informed the judge that Ms S.D. ’s brother ( Mr PERSON . NORP ) and sister ( ORG ) had previously been treated in the hospital in connection with certain mental disorders .

According to the hearing records , the prosecution asked permission to read out the testimony PERSON had given at the investigation stage . The defence did not object to her testimony being read out . According to the applicant , the defence sought to question those witnesses in person . The court decided to read out the records of the questioning of PERSON , as well as the statements her mother , brother , and sister had made during the first round of the proceedings and before the investigative authorities .

Witness for the defence PERSON testified in person before the court . The court also heard several other witnesses for the defence , namely , Ms E.D. and PERSON . They gave testimony consonant with the position of the defence .

The court questioned expert PERSON , who had participated in the expert examination of DATE ( no . CARDINAL ) . The court also questioned expert Dr PERSON . , who had participated in the expert examinations of DATE and DATE ( nos . CARDINAL and DATE ) . They confirmed the conclusions of the expert reports and provided further information on the case .

The defence sought to exclude the expert opinions produced by the prosecution on the ground that PERSON ( the co - defendant ) had not been aware of the decision of the investigator to conduct the expert examination . However , the court refused to exclude those opinions on the ground that the defence had had the opportunity to challenge the experts and their conclusions after the completion of the reports or to seek additional expert examinations in the course of the court proceedings .

On DATE the lawyer representing PERSON ( the applicant ’s co - defendant ) asked the court to conduct an additional expert examination of the state of health of PERSON ( the victim ) . It appears that a request in similar terms was lodged by the applicant ’s lawyer as well .

On DATE the prosecutor asked the court to order another expert examination of the materials of the case in order to clarify whether the “ programmes ” of the association included medical services . The defence asked the judge to entrust the examination to a ORG institution in GPE , but the judge refused and entrusted the examination to a local forensic centre in GPE . However , the court agreed to include an expert proposed by the defence on the team . The materials of the case were forwarded to the competent expert institution for examination .

On DATE those materials were returned to the court without examination . The expert institution replied that it was impossible to reply to the questions as they had been formulated by the judge in overly broad terms , and that additional experts were needed to carry out that kind of examination .

In DATE Judge PERSON withdrew from sitting in the case for reasons which remain unknown . He was replaced by Judge PERSON The trial was resumed on DATE . It appears that due to the change of judge the case was heard again from the beginning ( see LAW in the “ Relevant Domestic Law ” part below ) .

At the hearing of DATE the prosecution declared that they would agree to the discontinuation of the case on the ground that the statutory time - limits for prosecuting the defendants had expired . However , the applicant and PERSON insisted on the continuation of the trial , stressing that they wished to prove their innocence .

Having examined the list of witnesses summoned to the hearing , Judge PERSON noted that PERSON . had been summoned but that the court had “ received no information about her proper notification ” .

The prosecution again asked to read out the testimony of Ms GPE and PERSON obtained at the pre - trial investigation stage but the defence objected . They asked the judge to request information about the ability of those witnesses to testify in court in person .

On DATE Judge PERSON decided to read out the testimony Ms GPE had given at the pre - trial investigation stage . On the basis of the materials in the case - file and “ information received ” , the judge ruled that the state of health of PERSON prevented her from participating in the trial .

The judge also noted that it was impossible to hear expert witness Dr Ig . , without , however , explaining why , and ordered the reading out of her testimony obtained by the investigator .

On DATE Judge PERSON requested the opinion of the regional psychiatric hospital as to whether the state of health of PERSON and ORG permitted them to take part in the proceedings . On DATE the hospital replied that since PERSON and ORG had not been treated in that hospital , it was impossible to say whether they were fit to attend the trial .

Subsequently the judge read out testimony by several other witnesses who had been questioned at the earlier stages of the proceedings , including PERSON ( the mother of the victim ) and PERSON . NORP ( the brother of the victim ) .

It appears that at the subsequent hearings the judge heard oral evidence from several witnesses , namely , PERSON . Iv . and PERSON However , the Government did not produce copies of the records of the relevant hearings .

On DATE Judge PERSON heard CARDINAL experts – PERSON . ( who had participated in drafting expert opinions ORG . CARDINAL and CARDINAL ) and Dr N. ( who had participated in the drafting of expert opinion no . CARDINAL ) . During his questioning Dr PERSON . stated , inter alia , that lacunas in the previous expert examinations could have been filled by carrying out a new psychiatric examination of PERSON was of the same opinion .

The defence asked the judge to read out the testimony of expert PERSON , who had drafted the report of CARDINAL DATE and who had been questioned at the first trial . The judge agreed and PERSON recorded testimony was examined .

On DATE the defence requested the court to order an additional expert examination of the causes of the mental disorder of Ms GPE and its relation to her participation in the programmes of the association . The defence stated that the expert examinations obtained earlier were inconsistent and did not address certain important issues .

That request was refused : the judge concluded that the previously obtained expert opinions were sufficient to reach a conclusion on the merits of the case . The examination of evidence was closed and the judge ordered the parties to proceed to the final pleadings .

On DATE ORG found the applicant and PERSON guilty under LAW .

ORG found that DATE and DATE , in the guise of “ programmes ” and “ training courses ” , the applicant and Ms GPE had dispensed to PERSON the following medical services : “ psychological adaptation ” ; “ autogenic training ” , “ dietetic therapy ” , “ medicinal gymnastics ” , and “ psychotherapeutic treatment ” . All those activities belonged to various fields of medicine ( such as psychotherapy , psychiatry and narcology ) . The nature of the activities of the accused was in itself indicative of the deliberate and conscious nature of their actions . To dispense such services a special education and a licence were required . The defendants had operated without any licence and did not have any medical training . There was a direct causal link between Ms S.D. ’s participation in the programme and her health problems in DATE . Thus , the unlawful and careless behaviour of the applicant and Ms GPE had caused PERSON moderately serious health damage .

In support of its conclusions the court referred to the following evidence : the testimony of PERSON given on DATE and CARDINAL DATE , the testimony of ORG , the sister of the alleged victim , given during the pre - trial investigation on DATE , and the testimonies of Ms GPE ( the mother of the alleged victim ) , and Mr PERSON ( the brother ) given at the trial .

The court further referred to expert opinions , namely , the expert reports of DATE ( no . CARDINAL ) , the reports of DATE ( no . CARDINAL ) and CARDINAL April CARDINAL ( no . CARDINAL ) , the expert report by PERSON . of DATE , and the record of expert PERSON . ’s questioning by the investigator . The court also referred to the oral testimony of experts PERSON and Dr PERSON . given at the trial .

The court also referred to other evidence , namely , the records of the testimonies of Ms E. K. , PERSON , PERSON , PERSON and others , given either to the investigator during the investigation stage of the proceedings or at the first trial . The court also relied on documentary evidence , including the medical history of PERSON , the charter of incorporation of the association and brochures and leaflets published by it .

NORP The court dismissed as inconclusive witness statements by PERSON ( defence witness ) and PERSON ( defence witness ) , and did not analyse the testimony of PERSON court also discarded the testimonies of those witnesses who had themselves participated in the programmes of the association on the ground that their opinion about the nature and effects of those programmes was “ subjective ” .

Expert opinions proposed by the defence were declared inadmissible in evidence . In particular , ORG held that the expert opinions of Prof . PERSON and the ORG were inadmissible on the ground that they had been obtained in breach of ORG CARDINAL , CARDINAL and CARDINAL of the CCrP. The court explained that under the law “ a party can not , on its own initiative and outside of the court hearing , solicit and obtain the opinion of a specialist ” ( page CARDINAL of the judgment ) .

The written testimony of PERSON was excluded on the ground that PERSON had earlier produced an expert report on the case . Consequently , under LAW CARDINAL § CARDINAL of the CCrP he was precluded from being questioned in his capacity as a “ specialist ” .

As to the references in the report of Dr Iv . of DATE to the legal acts adopted after the events imputed to the applicant , the court noted that these references did not contradict the conclusions of PERSON . but only strengthened them , and that PERSON . had also referred to the legal acts in force at the time of the events at issue ( page CARDINAL of the judgment ) .

In the concluding paragraphs of the judgment the court noted as follows :

“ The court considers that the evidence [ submitted by the parties ] is admissible , relevant and reliable to the extent that it does not contradict the

ORG sentenced the applicant to DATE of imprisonment ; however , she was relieved from serving the sentence owing to the expiry of the relevant statutory time - limit . Mr PERSON was sentenced to DATE and DATE of imprisonment .

The defence appealed . They complained , in particular , that judge PERSON had based the judgment on the testimony of witnesses he had not heard in person . They also complained about the refusal of the trial court to admit expert opinions submitted by the defence in evidence and obtain a new expert examination of the condition of PERSON On DATE ORG upheld the conviction . The court of appeal did not find any breach of the domestic substantive or procedural law in the proceedings before the trial court . ORG ruled , inter alia , that the defence had conceded to the reading out of the previous testimony of the alleged victim and her relatives . ORG noted that the record of PERSON ’s questioning by the investigator was a reliable source of information because when she had given that evidence she had not been suffering from a mental condition .


CASE OF BUZADJI v. THE REPUBLIC OF MOLDOVA

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Angelika Nußberger;Branko Lubarda;Dean Spielmann;Dmitry Dedov;Erik Møse;George Nicolaou;Guido Raimondi;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Nebojša Vučinić;Nona Tsotsoria;Paul Mahoney;Robert Spano;Vincent A. De Gaetano;Yonko Grozev

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

The applicant was a minority shareholder in and the CEO of a liquefied gas supply company from southern GPE in which the ORG owned PERCENT of the shares . In DATE a criminal investigation was initiated in respect of an alleged unsuccessful attempt by the applicant to commit a fraud in connection with his activity at the company . In particular , he was accused of having , DATE , devised a scheme involving the importation of liquefied gas from GPE and GPE , as a result of which the company had sustained major financial losses . According to the accusation , instead of purchasing gas directly from the producers , he had called on the services of intermediary companies , resulting in a significant increase in the price of the gas . Those intermediary companies also had ties with his sons . Later , when his company was faced with a court claim from the intermediary companies amounting to CARDINAL United States dollars plus penalties , he had acknowledged that debt in court proceedings .

In this connection , in DATE the investigating authorities summoned the applicant to appear before them and to make a statement . In his defence the applicant argued that his company could not purchase gas directly from the producers , because the minimum quantity which the producers agreed to sell exceeded his company ’s needs for DATE . Therefore , it was impossible for his company to purchase the amounts of gas needed directly from the producers . Moreover , the producers PERCENT pre - payment and his company did not have the available funds . He submitted that all national gas importers used the same method of importing gas and that the price of the gas purchased by his company was lower than that on the free national market . He further argued that the difference in price between that of the producers and that paid by his company was explained by transportation costs , certification , handling , insurance and other factors . He also denied that his sons were in any way involved in the intermediary companies .

The applicant was summoned on several occasions and in each case appeared before the investigating authorities and cooperated with them . In DATE the applicant ’s house was searched , his personal computer was seized and various documents were extracted from it . It does not transpire from the case file that there were any instances when the applicant did not comply with the instructions of the investigators and/or that he was ever accused of obstructing the investigation .

NORP The applicant ’s sons , who were also suspects in the criminal proceedings and were subsequently charged , were summoned to appear before the investigating authorities without being arrested . Later , CARDINAL different investigations were initiated in respect of the applicant and all of them were joined in a single procedure .

On DATE the applicant was arrested and on CARDINAL DATE he was formally charged with the attempted large - scale misappropriation of goods belonging to the company where he worked , namely with the facts described in paragraph CARDINAL above . On DATE , the prosecutor in charge of the case applied to ORG for a DATE detention warrant on the following grounds : the seriousness of the offence , the risk of influencing witnesses and the risk of reoffending .

The applicant objected and argued that there was no reasonable suspicion that he had committed an offence . In particular , he submitted that the criminal proceedings against him were nothing but a means of influencing the outcome of pending civil proceedings concerning the debt owned by the ORG - owned company and the intermediary companies . In any event , the grounds relied upon by the prosecutor were stereotyped and the prosecutor had failed to explain the reasons for his belief that the applicant would attempt to influence witnesses and reoffend . He submitted that he was a well - known person in the region and that he had worked at his company for DATE . He had a permanent residence , had been cooperating with the investigation since DATE and had never attempted to abscond or hinder the investigation . Moreover , he relied on his age and on his poor state of health , submitting that he had suffered a heart attack and a stroke .

On DATE ORG partly upheld the prosecutor ’s application and ordered the applicant ’s detention pending trial for DATE . The court found that :

“ ... the deed with which [ the applicant ] is charged is considered to be an exceptionally serious offence , which allows for detention pending trial . [ The court ] takes into account the nature and seriousness of the offence and the complexity of the case , and considers that at this incipient stage of the investigation there are reasonable grounds to believe that the accused could collude with others ( his sons , who have not been questioned ) in order to take a common position .

The other reasons relied upon by the prosecutor , namely the risk of absconding and influencing witnesses or that of destroying evidence , are not substantiated and are not very probable . ”

The applicant appealed , contending that there was no reasonable suspicion that he had committed an offence . He reiterated his previous statement to the effect that the criminal proceedings pursued the ulterior motive of influencing the outcome of pending civil proceedings between the company at which he worked and a third company . He further argued that the ground relied upon by the court to order his detention on remand , namely the risk of his colluding with his sons , had not been invoked by the prosecutor . Moreover , his CARDINAL sons had not been formally charged and , in any case , all of them had had plenty of time to collude DATE , when they first learned of the investigation , and DATE had they been so inclined . The applicant also relied on his serious medical condition and submitted that he was a well - known individual with a family , a residence and a job in GPE , who had appeared before the investigating authorities whenever he had been summoned during the period from DATE to DATE .

On DATE ORG upheld the decision of CARDINAL DATE , essentially repeating the grounds given by the lower court without giving any reasons for dismissing the arguments put forward by the applicant .

On CARDINAL DATE the prosecutor in charge of the case applied to the court for the prolongation of the applicant ’s detention on remand by DATE . He relied on such reasons as the gravity of the offence , the risk of influencing witnesses , the risk of reoffending and the risk of absconding .

The applicant objected , submitting that there was no reasonable suspicion that he had committed an offence and no reason to believe that he would influence witnesses who had already been questioned . He also emphasised that he had cooperated irreproachably with the investigation before his arrest and that he had a permanent residence . He therefore asked the court to order the replacement of the measure of detention with another less severe measure . CARDINAL of his lawyers asked the court to order a less severe measure such as , for instance , house arrest , in place of the detention .

On DATE ORG extended the applicant ’s detention on remand by DATE . After recapitulating the parties’ positions and citing the applicable provisions of the law , the court found that :

“ ... the grounds relied on when applying the preventive measure [ of detention ] remain valid , the majority of the investigative actions have been carried out , but a number of additional measures requiring [ the applicant ’s ] participation are still necessary in order to send the case to the trial court . The court considers that the application on the part of the defence to replace the preventive measure is premature , taking into account the seriousness and complexity of the case and the need to protect public order and the public interest , as well as to ensure the smooth and objective course of the investigation . ”

NORP The applicant appealed , relying on essentially the same arguments as he had done previously .

On CARDINAL DATE ORG upheld the decision of CARDINAL DATE . The court gave essentially the same reasons as it had done in its decision of CARDINAL DATE , namely the gravity and the complexity of the case , the risk of absconding or influencing witnesses and the risk of destroying documentary evidence which have not yet been collected by the prosecutors .

On DATE the prosecutor in charge of the case applied for a further prolongation of the applicant ’s detention on remand of DATE . He argued that the case was complex and that new charges had been brought against the applicant in the context of the same proceedings : he had now been charged also with abusing his position and overstepping his duties . As on previous occasions , the prosecutor argued that the extension of the detention was necessary in order to avoid the risk of the applicant ’s influencing witnesses and reoffending .

NORP The applicant objected and asked the court to replace the measure of detention with another measure . He submitted the same reasons as before and added that his health had considerably deteriorated during detention and that he needed medical care .

On DATE ORG extended the applicant ’s detention on remand by DATE , stating that the reasons for his continued detention remained valid .

The applicant appealed , submitting inter alia that the complexity of the case invoked by the prosecutor had been deliberately generated by the latter ’s refusal to conduct an audit of the company or to question the witnesses cited by the applicant . He also challenged the allegation concerning the gravity of the offence imputed to him , pointing out that he was only being accused of attempting to commit an offence , not of committing it . He claimed that no actual loss had been caused to the company and that the court had failed to take into consideration the accused ’s individual circumstances .

On DATE ORG upheld the lower court ’s decision , finding that it had been adopted in compliance with the law . The court also noted that the applicant was accused of a particularly serious offence punishable by imprisonment from CARDINAL to twenty - five years and that the investigation was still ongoing . The court held that if released the applicant might be able to abscond or to influence witnesses .

On DATE the prosecutor in charge of the case applied again for a further DATE extension of the applicant ’s detention .

The applicant objected on the basis that there were no reasons to believe that he would abscond or influence witnesses . He stressed that the prosecutor had not conducted any investigative measures for a long time and that the investigation was virtually completed . He reiterated that he had a permanent residence and that he had agreed to appear before the investigators whenever necessary . He presented a medical report dated DATE , according to which it was established inter alia that he had arterial hypertension and a slight paralysis of his right leg as a result of a stroke . The doctor recommended treatment in a neurological clinic . The applicant asked the court to dismiss the prosecutor ’s application and to apply a less severe measure such as conditional release or house arrest .

On DATE ORG rejected the prosecutor ’s application and accepted the applicant ’s request , ordering that he be placed under house arrest for DATE . The court found that :

“ ... the applicant has been detained for DATE and has participated in all the necessary investigative actions ; ... LAW imposes a presumption that an accused be freed while he awaits his trial ; ... certain evidence , which may have been sufficient earlier to justify [ detention ] or to render alternative preventive measures inadequate , could become less convincing with the passage of time ; ... it is for the prosecutor to prove the existence of a risk of absconding , and such a risk can not be proved only by reference to the severity of the potential punishment ; [ the court referred to the applicant ’s medical problems and his age , the lack of a criminal record , his permanent residence and married status ] ; the [ ORG ] case - law provides that detention pending trial should be exceptional , always objectively reasoned and must correspond to the public interest ; the court finds that it is implausible that [ the applicant ] will abscond , influence witnesses or destroy evidence , and that the normal course of the criminal investigation is possible while the accused is under house arrest . ”

The court set the following conditions for the applicant ’s house arrest : prohibition from leaving his house ; prohibition of using the telephone ; prohibition from discussing his case with any other person .

The applicant was immediately taken home , where he remained for DATE . However , the prosecutor lodged an appeal against the above - mentioned decision and invoked as one of the reasons for the applicant ’s continued detention in custody the fact that the applicant refused to confess to having committed the offence imputed to him .

On DATE ORG quashed the decision of DATE and adopted a new one , ordering the applicant ’s detention pending trial for DATE . The court found that :

“ ... the lower court did not take into account the complexity of the case and the seriousness of the offence with which [ the applicant ] is charged ; the court considers that while under house arrest [ the applicant ] could communicate with the other accomplices , who are not under arrest and who are , moreover , his sons ; he could abscond by fleeing to the [ self - proclaimed and unrecognised “ GPE ” ] , which is not under the control of the GPE authorities ; he could influence witnesses , in order to make them change their statements ; the applicant has received visits from doctors and can obtain medical assistance in prison . ”

On DATE the prosecutor in charge of the case applied again to the court for an extension of the applicant ’s detention on remand . He relied on the same reasons as before .

On DATE ORG extended the applicant ’s detention pending trial by DATE . It argued again that the applicant was accused of a serious offence and that he could abscond or hinder the investigation .

The applicant appealed , advancing essentially the same arguments as he had done earlier .

On DATE ORG quashed the lower court ’s decision and adopted a new one , changing the preventive measure to house arrest . The court found that :

“ the prosecutor did not provide any evidence confirming the continued need to detain [ the applicant ] , did not submit additional materials confirming the probability that he could exert influence on witnesses who have already been heard ; [ the applicant ] promises to appear before the investigating authorities whenever summoned ; there is no specific information concerning any risk of absconding ” .

The court also prohibited the applicant from communicating with persons who had any link with the criminal case against him and from leaving his house , and obliged him to phone the prosecutor ’s office DATE .

On DATE ORG examined the prosecutor ’s application to prolong the applicant ’s house arrest by DATE . The applicant did not object to the prolongation of the house arrest provided that the measures concerning the limitation on his communication with relatives were discontinued . The court upheld the prosecutor ’s request and ordered the prolongation of the house arrest for DATE . It also upheld the applicant ’s request and discontinued the limitation on his communication with his relatives . The only reason invoked by the court was the seriousness of the offence imputed to the applicant .

On DATE the ORG again prolonged the applicant ’s house arrest for DATE . The only reason given by the court was the seriousness of the offence imputed to the applicant . The applicant did not object provided that he was allowed to visit the hospital and the court in order to study the case file .

On an unspecified date the applicant lodged a habeas corpus request with ORG asking for the measure of house arrest to be changed for that of provisional release or release on bail . He argued that he had never breached the rules of the house arrest and that he undertook to further comply with all the instructions issued by the investigation organs .

On DATE the ORG decided to release the applicant on bail , observing that he had been detained for DATE and had never breached any of the restrictions imposed on him .

On DATE the applicant was acquitted of the charges for which he had been detained between CARDINAL DATE and DATE . The court found that no offence had taken place in regard to the facts imputed to him . At the same time he was acquitted of CARDINAL other charges brought against him and was found guilty on CARDINAL count , namely that of having illegally sold liquefied gas which had been seized by a bailiff , for which he was sentenced to a fine of CARDINAL NORP lei ( MONEY ) . Neither the applicant nor the prosecutor appealed against that judgment , which became final . The applicant ’s sons were acquitted .


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in NORP .

ORG The applicant , a person of NORP ethnic origin , lived in the town of NORP . During DATE and DATE NORP paramilitary forces gained control of CARDINAL of the territory of GPE and proclaimed the so - called “ GPE of LOC ” ( PERSON autonomna oblast LOC , hereinafter the “ LOC ” ) . The town of NORP was close to the border of LOC . There were targeted killing of NORP civilians by members of the NORP police and army in the NORP area during a prolonged period in DATE and DATE ( see PERSON , no . CARDINAL/CARDINAL , § DATE , CARDINAL DATE ) . In DATE the applicant left the town of ORG , fearing for his personal safety .

At DATE the NORP authorities announced a campaign of military action with the aim of regaining control over the LOC . The action was codenamed “ Storm ” and lasted DATE .

In DATE ORG established ORG in LOC , PERSON and ORG ( the “ ORG ” ) . On DATE the ORG mandate ceased and the transfer of power to the NORP authorities began .

On DATE the applicant lodged a civil action against the GPE and ORG in ORG , seeking payment of a sum of money on account of his investments in certain LOC . The applicant stated that in DATE he left the town of NORP fearing for his personal safety . He returned to GPE in DATE . As a result , he was not able to lodge his claim within the DATE statutory time - limit . In his oral evidence given on DATE the applicant said that after having left the town of NORP , he had first moved to PERSON , in the territory of the LOC , and soon afterwards to the GPE .

On DATE ORG dismissed the claim on the grounds that it had become time - barred . It held that the applicant had left the town of NORP of his own free will , that the town of ORG had never been occupied and that the courts had been operational there at all times . Therefore , there had been no “ insurmountable obstacles ” for the applicant to lodge his civil claim within the statutory limitation period . The relevant part of the judgment reads :

“ ... the defendant ’s objection concerning the statutory limitation period is well founded since the plaintiff brought his civil action on DATE and the lease agreement had ceased on DATE . Therefore , under section CARDINAL of LAW ... the plaintiff ’s claim had become statute - barred after DATE .

The plaintiff ’s submissions under section CARDINAL of LAW concerning insurmountable obstacles which had prevented him from seeking judicial protection of his rights have not been accepted by this court because he had left the town of NORP of his own free will and the courts [ in NORP ] have been operational at all times . ”

This judgment was upheld by ORG on DATE . The relevant part of its judgment reads :

“ Under section CARDINAL of LAW the statutory limitation period is suspended during the time in which a creditor is unable , owing to insurmountable obstacles , to seek the fulfilment of an obligation [ from a debtor ] .

The conclusions of the first - instance court that the plaintiff had not proved the existence of any such obstacles ; that the plaintiff had left the town of NORP of his own free will since that town had never been occupied by the enemy army during the period relevant for the statutory limitation ; and that the courts [ in NORP ] functioned at all times ; are correct and therefore fully endorsed by this court . ”

On DATE the lower courts’ judgments were upheld by ORG . The relevant part of its judgment reads :

“ The [ lower ] courts assessed all relevant circumstances and dismissed the plaintiff ’s claim that there were insurmountable obstacles preventing him from lodging his action and that section CARDINAL of LAW was applicable .

Contrary to the plaintiff ’s allegations that he could not go to the town of ORG and lodge his civil action owing to insurmountable obstacles , the courts established that the courts in the town of ORG had been operational at all times ; that the town of ORG had not been occupied by the enemy army at any time during the period relevant for the statutory limitation ; that the plaintiff had not proved the existence of obstacles preventing him from going to NORP ; and that he had left NORP of his own free will .

Since these are well - known facts , the conclusion of the lower courts that there were no insurmountable obstacles preventing him from lodging the claim in due time ... is correct .

This court is also of the opinion that the plaintiff can not rely on insurmountable obstacles of an objective nature within the meaning of section CARDINAL of LAW since the town of NORP was not occupied by the enemy army , none of its citizens has the status of refugee or displaced person and the lodging of a civil action was possible during the entire period of war because the courts remained operational . ”

The applicant ’s subsequent constitutional complaint was dismissed on CARDINAL DATE . ORG endorsed the reasoning of the lower courts .


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)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

On DATE the applicant company concluded a contract with GPE Banka AD ( hereinafter “ the bank ” ) , a private institution based in GPE . Under the terms of this contract , the applicant company acquired a debt belonging to the bank resulting from a final court judgment of DATE . That judgment was rendered against a socially - owned company called PERSON ( hereinafter “ the debtor company ” ) with its seat in PERSON . On DATE , upon the bank ’s application to that effect , ORG ordered the enforcement of the said judgment and the debtor company subsequently paid a part of the judgment debt .

On DATE , upon the applicant company ’s application to that effect , ORG again ordered the full enforcement of the judgment in question .

On DATE the applicant company concluded a settlement with the debtor company , which was later annulled following an application by the debtor company by a decision of ORG of DATE . That decision became final on DATE .

On DATE ORG ordered the debtor company to pay the applicant company specified amounts .

On DATE , upon the applicant company ’s application to that effect , ORG ordered the enforcement of the said judgment .

On DATE ORG opened insolvency proceedings in respect of the debtor company . As a result , all of the other ongoing enforcement proceedings against the debtor company were stayed .

The applicant company duly reported its claims based on the above - mentioned judgments .

On DATE ORG recognised a part of the applicant company ’s claims and instructed the applicant company to initiate civil proceedings in respect of the remainder .

On CARDINAL DATE ORG ruled partly in favour of the applicant company and dismissed the remainder of its claims . That decision was upheld by ORG on DATE . The domestic courts found that the contract which the applicant company had concluded with the bank ( see paragraph CARDINAL above ) entitled it only to the recovery of the amount paid for the transfer of the debt owed to the bank in question , not the judgment debt itself .

The insolvency proceedings are still ongoing .


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Criminal charge) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Criminal charge) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

On DATE the applicant took part in a march .

The applicant was then taken to a police station and was accused of disobeying the police order for the march to disband , as it was considered to be a non - authorised public gathering . The applicant was suspected of an offence under LAW ( ORG ) , which punishes disobedience of a lawful order by a public official . The police also considered that the applicant had committed an administrative offence under LAW ORG , on account of her participation in a public gathering which had not been subject to prior notification to the authorities , as required by ORG .

On DATE , the administrative offence record was submitted to a justice of the peace of the CARDINAL district . The applicant was then apprised of her procedural rights under LAW .

The applicant lodged a request for adjournment in respect of both cases , since she needed time to retain counsel . The judge granted an adjournment until DATE .

On DATE the applicant sought another adjournment , referring to the need for time to study the case material . The judge adjourned the cases until DATE .

On DATE , referring to ORG case - law under LAW , the applicant sought free legal assistance in these proceedings .

On DATE the judge adjourned the case again , since the applicant sought to call witnesses .

By a procedural order of DATE , the justice of the peace dismissed the request for free legal assistance as follows :

“ Having examined the administrative offence record and the other documents in the case file , I dismiss the request because the ORG contains no rule concerning provision of legal assistance to the defendant . [ The applicant ] has been apprised of her rights under LAW ORG and thus must take her own decision whether she wants to retain an advocate , with due regard to her financial situation ... ”

By a judgment of DATE the applicant was found guilty of the administrative offence under LAW ORG and was sentenced to a fine of MONEY ( RUB ) .

On DATE , the same justice of the peace found the applicant guilty of breaching the requirements of LAW , which is an administrative offence under LAW ORG . The applicant was ordered to pay a fine of RUB CARDINAL .

The applicant appealed against both judgments and sought free legal assistance for the appeal proceedings .

On DATE ORG of GPE gave her leave to call witnesses but dismissed her request for free legal assistance as follows :

“ [ The applicant ] has submitted a request for free legal assistance , submitting that she is a pensioner and has insufficient means to retain an advocate ; she has no knowledge in the area of jurisprudence .

Having examined the request , the court can not grant it because the ORG contains no rule concerning provision of legal assistance to the defendant . [ The applicant ] has been apprised of her rights under LAW ORG and thus must take her own decision whether she wants to retain an advocate , with due regard to her financial situation ... ”

On DATE ORG granted the applicant ’s request to admit a video recording in evidence . The applicant ’s renewed application for free legal assistance was again dismissed .

On DATE ORG upheld the judgments of the justice of the peace . The appeal court also stated as follows :

“ There has been no violation of [ the applicant ’s ] right to legal assistance . She was apprised of her procedural rights ... There is no evidence that the justice of the peace impeded [ the applicant ’s ] exercise of her rights . ”

The applicant sought further review of the above court decisions . On DATE the deputy President of GPE re - examined the case files and upheld the judgments .

NORP The applicant sought review before ORG of GPE . On DATE and DATE the Deputy President of this court dismissed her applications , stating as follows :

“ The applicable legislation contains no rule concerning provision of legal assistance free of charge . ”

Lastly , the applicant lodged a constitutional complaint regarding the non - availability of free legal assistance under the ORG . By decision no . CARDINAL of CARDINAL DATE ORG declared her application inadmissible and made the following findings :

“ The LAW of GPE ... provides for a right to legal assistance , in the circumstances prescribed by law , free of charge ...

The federal legislator is empowered to specify the means of access to the right to legal assistance , without impinging upon the essence of this right ...

LAW contains provisions allowing the person , who is being prosecuted for an administrative offence , to seek legal assistance ... by way of retaining a defender ... The defendant has a possibility to retain an advocate or another person . Therefore , the possibility to find and retain a defender is wider as compared to the situation of a suspect or accused in criminal proceedings ...

Unlike in criminal cases , the person concerned does not bear any procedural costs ... Therefore , the decision not to prosecute for an administrative offence or a favorable decision following the prosecution for such offence may entail reimbursement of the expenses relating to legal assistance ...

ORG previously acknowledged the need for a heightened level of protection of the ORG rights and freedoms in the areas entailing administrative or another type of public liability ... The relevant legislative regulations should comply with the requirements of fairness , proportionality and legal certainty ... At the same time , the constitutional requirements of fairness and proportionality entail some differentiation of liability on account of the seriousness of the facts , the extent and type of damage caused , the extent of the person ’s guilt and other relevant factors ...

Classification of offences as administrative or criminal entails corresponding statutory sentences and a set of corresponding procedural rules ... Unlike criminal cases , which include , as a rule , pre - trial proceedings , the cases under the ORG are focused on and processed by way of the non - judicial procedure . It has a more simplified and expedited nature , thus normally not requiring an investigation . Therefore , these proceedings are fit for the person to defend himself and are less financially burdensome as regards recourse to assistance from an advocate or another person ...

Therefore , the federal legislator should not be deprived of the choice in favour of a differentiated approach when putting in place specific modalities concerning legal assistance , with due regard to the type of offences , the severity of penalties , procedural specificities of the procedures and other legitimate criteria ...

In view of the above , as well as the case - law of ORG , the ORG ’s positive obligation to ensure provision of legal assistance , with recourse to public funding , primarily concerns the need to protect vulnerable groups ... and has a special significance in the criminal procedure , in particular on account of the importance of the consequences that may result during or after this procedure ...

The issue of free legal assistance in ORG cases may acquire constitutional significance in situations where the degree of actual intrusion into constitutional rights and freedoms , by way of prosecution under the ORG , becomes comparable to measures prescribed by criminal law ...

In substance , the applicant alleges a violation of her constitutional rights on account of the lacunae in LAW that allowed the courts to reject her request to use free of charge the services of the lawyer that would be appointed . At the same time , she referred to a risk of an administrative sentence of CARDINAL days’ detention ...

A theoretical possibility of administrative detention of DATE was only available as a penalty in respect of CARDINAL of the CARDINAL charges against the applicant ... As a matter of fact , with due regard to various circumstances , she was fined MONEY , which was CARDINAL the minimum statutory fine under LAW ...

In view of the above and the other factors ( the penalty of administrative detention is only prescribed for some offences , is to be used only in exceptional circumstances ; it can not not be imposed in respect of certain categories of people ; the applicant was not subject to any pre - trial detention longer than TIME ) , there are no compelling reasons to consider that during the ORG proceedings the applicant was placed in a position which could be compared to that of a defendant in a criminal case and that she ran a risk of being subjected to measures which would be comparable to those under criminal law ...

’s allegations are abstract ...

Article CARDINAL can not be perceived as violating the applicant ’s rights in the specific case ... Thus , the complaint should be declared inadmissible ...

However , the foregoing considerations should not prevent the federal legislator from specifying conditions for obtaining legal assistance in ORG cases , including by way of singling out categories of ORG cases and related criteria to determine whether free legal assistance in court proceedings is necessary ... ”


CASE OF BONDARENKO AND OTHERS v. UKRAINE

Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonably necessary to prevent fleeing;Reasonably necessary to prevent offence);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the excessive length of their pre - trial detention . Some applicants also raised other complaints under the provisions of the Convention .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in DATE and is currently detained in FAC .

On DATE he was detained in ORG after receiving a DATE sentence for aggravated theft . From DATE he was allowed to serve his sentence in a semi - open detention regime . He was held in FAC from DATE , where he was transferred again on DATE . He remains there to date .

NORP In his initial letters to the Court , the applicant stated that he had been diagnosed with human immunodeficiency virus ( HIV ) prior to his incarceration , for which he required treatment .

He stated that he had not received adequate medical treatment for his illness on account of a lack of funding , and that his family had had to assist him in this regard . Furthermore , even if he had tried to complain to the postsentencing judge about the matter , his request for a hearing had been denied on the erroneous ground that he had requested a hearing for legal matters .

From DATE the applicant was examined , tested and treated regularly for his condition in prison and civilian medical centres and hospitals . He received a number of vitamins and was administered antiretroviral treatment on a DATE basis .

On DATE and CARDINAL DATE the infectious diseases ward of ORG informed the socio - medical ward of ORG that they were monitoring the applicant ’s condition . He was hospitalised there from DATE and from CARDINAL to CARDINAL DATE respectively . It was noted , among other things , that on CARDINAL DATE the applicant had been taken to a civilian hospital for blood tests , and that he had been undergoing treatment with antiretroviral medication , in particular Truvada , PERSON and PERSON . It was recommended that he follow a highcalorie , protein - rich diet , take vitamins and liver protection medication , have an immunological and viral evaluation after DATE , and continue with the aforementioned antiretroviral treatment .

On DATE ORG informed ORG ( PERSON ) , among other things , that during his detention in the aforementioned facility the applicant had refused treatment through the national infectious diseases programme on the grounds that he could purchase it himself . In GPE , the drug Truvada was not included in the national programme , but could be replaced with ORG , which contained the same active substances . Upon his incarceration the applicant asked to be provided with PERSON and PERSON only , but the doctor had denied him the treatment as it would have been incomplete .

On DATE the medical centre attached to FAC informed the Government and submitted documents showing , among other things , that during his detention the applicant had lacked any HIV - related symptoms and complications . Also , his clinical and immunological condition and biological tests had remained normal . On DATE the Timişoara ORG produced a forensic expert report in respect of the applicant ’s condition , recommending , among other things , that he be hospitalised in FAC . On DATE the applicant signed a waiver refusing hospitalisation on the grounds that his medical condition had been good , he had wanted to work , and he had been monitored by the local civilian hospital in DATE , where further monitoring had already been scheduled to take place in DATE . According to the monitoring carried out by that hospital in both DATE , the applicant ’s clinical and biological condition had remained normal .

On DATE ORG informed the Government , among other things , that the applicant had started antiretroviral treatment in DATE after being incarcerated in GPE . During his detention he had been given a special high - calorie , protein - rich diet reserved for people with HIV . The authorities had also intended to give him the recommended treatment . His antiretroviral treatment consisted of a combination of CARDINAL active substances grouped into CARDINAL separate drugs . CARDINAL of these was Truvada , which contained CARDINAL active substances but was not available in the recommended combination through the national infectious diseases programme . For this reason , and given that the applicant had purchased the necessary medication himself , he had not been given treatment through the national programme . He had signed a waiver refusing to receive treatment through the programme and had therefore exercised his right to purchase his own medication . The treatment was administered to him under strict medical supervision . His medical condition had been good during his detention therefore there was no causal link between the conditions of his detention and a potential aggravation of his medical condition .

In his initial letter to the ORG , the applicant stated that he had been detained in overcrowded and squalid cells lacking sufficient air and light . He had also been detained with smokers even though he was a non - smoker .

ORG informed the Government that during his detention in ORG and after his transfer to FAC the applicant had signed a number of contradictory statements as to whether or not he was a smoker . Those dated DATE , DATE and DATE stated he was a smoker , whereas others dated CARDINAL DATE , CARDINAL DATE , DATE and DATE stated he was a non - smoker .

ORG also informed the Government that during his incarceration in ORG the applicant had been detained in cells GPE , GPE and ECARDINAL.CARDINAL .

From DATE he had been detained in cell PERSON , which measured QUANTITY . He had shared this cell with CARDINAL detainees . It had CARDINAL windows measuring CARDINAL x QUANTITY , which allowed natural ventilation . It also had a bathroom with a sink , CARDINAL showers and a toilet with natural ventilation .

From DATE to DATE the applicant had been detained in cells GPE and ECARDINAL.CARDINAL , which measured QUANTITY respectively . He had shared his cells with CARDINAL detainees respectively . Each cell had a window measuring QUANTITY , which allowed natural ventilation . They also had a bathroom with a sink , CARDINAL showers and a toilet with natural ventilation .

Each detainee was allocated a hospital bed . The building had electricity and its own central heating system .

NORP The prison authorities complied with the relevant domestic rules when issuing inmates with cleaning materials . Cleaning and maintenance were carried out in accordance with these rules .

During his detention in ORG the applicant had not initiated any proceedings before the post - sentencing judge under PERSON no . CARDINAL .

ORG also informed the Government that during his incarceration in FAC the applicant had been detained in cells ECARDINAL.CARDINAL , PERSON and ORG .

From DATE to DATE and from DATE to date he had been detained in cell ECARDINAL.CARDINAL which was an infirmary room ; from DATE he had been detained in cell ORG ; and from DATE to CARDINAL DATE he had been detained in cell PERSON . The cells measured CARDINAL , CARDINAL and QUANTITY and had CARDINAL , CARDINAL beds respectively , lined up in CARDINAL rows . They all had furniture and standard cupboards for personal belongings . The number of detainees never exceeded the number of available beds . Each cell had a window measuring CARDINAL x CARDINAL , MONEY and CARDINAL x QUANTITY respectively , which allowed for optimal natural ventilation and light the room . Cells ECARDINAL.CARDINAL and PERSON had an annex with metal shelves for personal luggage and a bathroom with CARDINAL sinks , showers and toilets with natural ventilation . Cell ECARDINAL.CARDINAL had a bathroom with a sink , shower and toilet .

During the cold season heating was permanently on in the cells and during DATE the cell doors remained open both at TIME and during DATE to avoid any heat - related problems . The prison authorities issued inmates with cleaning materials and the cells and communal detention areas were cleaned DATE by the detainees themselves . Inmates were also issued with personal hygiene products and allowed to wash their bedlinen regularly in the prison washroom .

Detainees allowed to serve their prison sentence in a semi - open detention regime could spend time outside their cells from TIME and from TIME They were allowed access based on a preapproved schedule to the prison courtyards , which had sports equipment and tables and benches for leisure activities . They also had access to the library , classrooms and educational activity classes .

During his detention in LOC the applicant did not lodge a complaint with the post - sentencing judge or domestic courts concerning the conditions of his detention or a breach of his rights as a detainee . He only asked the prison authorities if he could work and his request was allowed . He was regularly informed of the need to maintain personal hygiene and was trained on health and safety in the workplace .

On an unspecified date in DATE the applicant asked the postsentencing judge attached to ORG for a hearing on legal matters .

On an unspecified date the judge dismissed the applicant ’s request on the grounds that it did not provide legal advice . He was informed that the relevant domestic rules prevented the post - sentencing judge from allowing detainees hearings to solve issues that fell outside its competence . It noted that according to the applicant ’s request , he had not lodged a complaint about measures which could have interfered with his rights as a detainee or complained that he had been subjected to inhuman and degrading treatment or to discrimination .

On DATE the applicant asked the warden of ORG if he could be assigned to a non - smoking room because he was a non - smoker .

On an unspecified date in DATE the warden of ORG dismissed his request stating , among other things , that smoking was prohibited in the applicant ’s section of the prison , and that his room was non - smoking .

On DATE and DATE the parties submitted to ORG a detailed list of items the applicant had purchased from the prison shops from DATE to DATE . According to that list , from DATE to CARDINAL DATE he had purchased cigarettes regularly but had seemed to stop purchasing from DATE to DATE . He had also purchased lighters a few times .

On DATE the applicant signed a statement declaring that he had not lodged a complaint with ORG about the conditions of his detention or medical treatment received , and that his complaint had been lodged against ORG .

On DATE the applicant informed the ORG that his situation had not changed at all . He was still being denied the necessary treatment for his condition , detained with smokers and purchasing his own food .