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 5-5 - Compensation)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicant was born in DATE and lives in GPE .

On DATE the Donetsk Kirovskyy ORG ( “ the ORG ” ) found the applicant guilty of robbery and sentenced him to CARDINAL years’ imprisonment .

On DATE ORG ( “ the ORG ” ) granted amnesty to the applicant .

On DATE the same court , following an objection ( протест ) by its president , quashed the decision of DATE and upheld the judgment of CARDINAL DATE by a final decision . The applicant became aware of ORG decision of CARDINAL DATE only after his arrest in DATE ( see paragraph CARDINAL below ) .

NORP In DATE ORG sent its judgment to the local police with a view to ensuring its enforcement . As submitted by the applicant and eventually established by the domestic courts ( see paragraph CARDINAL below ) , he continued living at his permanent address . Although he was placed on a wanted list for a brief period in DATE , neither during that period nor thereafter did the police try to contact him .

On DATE the PERSON police arrested the applicant at his home and brought him to GPE prison no . CARDINAL to serve his sentence .

Following numerous unsuccessful complaints to the prosecution authorities , in DATE the applicant lodged a complaint with ORG , stating that his arrest and detention had been unlawful and requesting to be released .

After several rounds of proceedings , on DATE ORG allowed the applicant ’s claim and found the impugned actions of the police officers unlawful . The court found no evidence in the case file that the applicant had been informed of the court hearing and the final decision of DATE . He had been arrested DATE . By that time his sentence had become time - barred , a fact which the police had been obliged , but had failed , to check . As regards the applicant ’s request for release , the ORG stated that the issue was no longer of relevance ( see paragraph CARDINAL below ) .

On DATE ORG upheld the above decision .

In the meantime , on DATE , ORG ordered the applicant ’s release on parole . The applicant was released on CARDINAL DATE once all the formalities had been completed .

In DATE the applicant lodged a claim for damages against ORG on account of his unlawful arrest and detention . He relied on LAW , under which a person could claim such compensation if the unlawfulness of his or her arrest and detention had been established by a judicial decision ( see paragraph CARDINAL below ) . The applicant referred in that connection to the court ’s decision of DATE , in which his deprivation of liberty had been found to be unlawful ( see paragraph CARDINAL above ) .

On DATE ORG rejected his claim as unfounded . It noted the existence of the judicial decision referred to by the applicant without , however , commenting on it . The court observed that the applicant had appealed against neither the judgment of CARDINAL DATE nor the ruling of DATE ( see paragraphs CARDINAL and CARDINAL above ) . It also observed that he had been released without any conclusion about his guilt . Having relied on the above considerations , ORG concluded that the applicant had failed to prove that he had been deprived of his liberty unlawfully .

On DATE ORG upheld that decision .

On CARDINAL DATE the applicant ’s representative , PERSON , appealed on points of law .

On DATE ORG gave the applicant a deadline of DATE to submit the power of attorney . Its ruling referred to the applicant ’s case number as registered by ORG .

As confirmed by a postal acknowledgement of receipt , on CARDINAL DATE ORG received a registered letter from the applicant ’s representative , which had been dispatched on DATE and which concerned the case under the number indicated in the ruling of DATE . According to the applicant , his representative had sent the requested authority form by the above - mentioned registered letter . According to the ORG , the content of that letter and the documents enclosed , if any , could not be established in the absence of their detailed description on the acknowledgment of receipt .

On DATE ORG returned the applicant ’s appeal on points of law without examination . It held that , contrary to its instructions of DATE , he had failed to submit the power of attorney “ within the set time - limit and before the delivery of the present ruling ” .

On DATE ORG sent its ruling to the applicant ’s representative . According to the applicant , his representative received it on DATE .

On DATE PERSON requested that ORG give reasons for the dismissal of the applicant ’s appeal on points of law , since the ruling of DATE had been complied with . There was no reply to that request .


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . He is a journalist by profession .

On DATE the applicant published in the DATE magazine L’Illustré an article entitled “ Tragedy on FAC – the reckless driver ’s version – Questioning of the mad driver ” ( “ Drame du Grand - Pont à Lausanne – la version du chauffard DATE l’interrogatoire du conducteur fou ” ) . The article in question concerned a set of criminal proceedings against PERSON , a motorist who had been remanded in custody after an incident on DATE in which he had rammed his car into pedestrians , before throwing himself off FAC ( ORG ) . He had killed CARDINAL of them and injured CARDINAL others . The incident had caused much emotion and controversy in GPE because of the extraordinary circumstances of the case . The article began as follows :

“ Surname : B. First name : PERSON on DATE in PERSON ( GPE ) , son of PERSON and GPE , resident in GPE , holder of a category C licence , spouse of ORG : nursing assistant ... It is TIME on DATE , in the austere LOC of the GPE criminal investigation department . TIME after his tragic headlong race along FAC , resulting in CARDINAL deaths and QUANTITY casualties , this reckless driver is alone for the first time , facing CARDINAL investigators . Will he own up ? In fact he does n’t actually seem to realise what is happening , as if oblivious to the events and all the hubbub around him . The man who upset the whole of GPE DATE is not very talkative . This NORP citizen is withdrawn , introverted , inscrutable , indeed completely impenetrable . And yet the questions are flying from all sides . What were the reasons for this ‘ accident’ , one of the policemen rather clumsily writes , as if he had already formed his opinion . CARDINAL words in reply : ‘ I do not know’ . ”

The article continued with a summary of the questions put by the police officers and the investigating judge and PERSON ’s replies . It also mentioned that PERSON had been “ charged with premeditated murder ( assassinat ) and , in the alternative , with murder ( meurtre ) , grievous bodily harm , endangering life and serious traffic offences ” , and that he “ show[ed ] no remorse ” . The article was accompanied by several photographs of letters which PERSON had sent to the investigating judge . It ended with the following paragraph :

“ From his prison cell , PERSON now spends his time sending letters to the investigating judge ... : on being taken into custody he asked for his watch to be returned and requested a cup for his coffee , some dried fruit and chocolate . On DATE , DATE after the events , he even asked to be temporarily released for ‘ a few days’ . ‘ I would like to phone my big brother in Algeria’ , he subsequently begged . He finally announced on DATE that he had come to a ‘ final GPE : he dismissed his lawyer , PERSON , on grounds of ‘ lack of ORG . DATE , another letter : could the judge send him ‘ the directory of ORG of the GPE of Vaud’ to help him find a different defence lawyer ? However , with all the recurrent lies and omissions , the mixture of naivety and arrogance , amnesia and sheer madness characterising all these statements , surely PERSON is doing all in his power to make himself impossible to defend ? ”

The article also included a brief summary entitled “ He lost his marbles ... ” ( “ Il a perdu la boule ... ” ) , and statements from PERSON ’s wife and ORG .

M.B. did not lodge any complaint against the applicant . However , criminal proceedings were brought against the applicant on the initiative of the public prosecutor for having published secret documents . It emerged from the investigation that CARDINAL of the parties claiming damages in the proceedings against PERSON had photocopied the case file and lost CARDINAL of the copies in a shopping centre . An unknown person had then brought the copy to the offices of the magazine which had published the impugned article .

By an order of DATE the GPE investigating judge sentenced the applicant to DATE imprisonment , suspended for DATE .

Following an application by the applicant to have the decision set aside , ORG , by a judgment of DATE , replaced the prison sentence with a fine of MONEY ( CHF ) ( MONEY ( ORG ) ) .

NORP The applicant lodged an appeal on points of law . His appeal was dismissed on DATE by ORG of the GPE of GPE .

The applicant applied to ORG , which on DATE dismissed his public - law appeal and his appeal on grounds of nullity . The decision was served on the applicant on DATE . The relevant passages from the decision are as follows :

“ CARDINAL . In short , the applicant submits that his conviction for a breach of LAW is contrary to federal law . He does not challenge the fact that the information which he published falls within the ambit of LAW . He does , on the other hand , submit , under an interpretation of Articles CARDINAL and CARDINAL of LAW in the light of the principles inferred from LAW by ORG , that having received that information in good faith without any unlawful dealings he had the duty as a professional journalist , under LAW , to publish them owing to what he sees as the obvious interest of the so - called ‘ GPE case to the general public in LANGUAGE - speaking GPE .

CARDINAL In accordance with LAW of secret official deliberations ) , anyone who , without being entitled to do so , makes public all or part of the proceedings of an investigation or the deliberations of an authority which are secret by law or by virtue of a decision taken by that authority , acting within its powers , will be punished by a fine ( paragraph CARDINAL ) . Complicity in such acts is also punishable ( see paragraph CARDINAL ) . The court may decide not to impose any penalties if the secret thus made public is of minor importance ( see paragraph CARDINAL ) .

According to case - law , this provision proceeds from a formal conception of secrecy . It is sufficient that the proceedings , deliberations or investigations in question have been declared secret by law or under a decision taken by the authority , or in other words that there has been an intention to keep them from becoming public , regardless of the type of classification selected ( for example , top secret or confidential ) . On the other hand , strict secrecy presupposes that the holder of the specific information wishes to keep it secret , that there is a legitimate interest at stake , and that the information is known or accessible only to a select group of persons ( see ORG [ Judgments of ORG ] CARDINAL IV CARDINAL , point CARDINAL , p. CARDINAL , and CARDINAL / aa , p. CARDINAL ) . This state of affairs was not altered by the entry into force of paragraph CARDINAL of this LAW ( RO CARDINAL CARDINAL ; FF DATE IV CARDINAL ) . That rule concerns not secrets in the substantive sense but rather instances of futile , petty or excessive concealment ( see ORG CARDINAL FAC , point CARDINAL / bb , p. CARDINAL ) . In order to exclude the application of paragraph CARDINAL , the court must therefore first of all examine the reasons for classifying the information as secret . It must , however , do so with restraint , without interfering with the discretionary power wielded by the authority which declared the information secret . It is sufficient that this declaration should nonetheless appear tenable vis - à - vis the content of the proceedings , investigations or deliberations in issue . Moreover , the journalists’ viewpoint on the interest in publishing the information is irrelevant ( see ORG CARDINAL PERSON , point CARDINAL , p. CARDINAL ) . In its PERSON v. GPE judgment of DATE , ORG confirmed that this formal conception of secrecy was not contrary to LAW inasmuch as it did not prevent ORG from determining whether the interference in issue was compatible with LAW , by assessing , in the context of its examination of LAW , paragraph CARDINAL , of LAW , the justification for classifying a given piece of information as secret , on the one hand , and weighing up the interests at stake , on the other ( see PERSON v. GPE , cited above , § § CARDINAL and CARDINAL ) .

CARDINAL NORP In the present case the offence with which the appellant is charged concerned the publication of records of interviews and correspondence contained in the case file of a live criminal investigation .

In pursuance of LAW ( ORG ) , all investigations must remain secret until their final conclusion ( see paragraph CARDINAL ) . The secrecy requirement relates to all the evidence uncovered by the investigation itself as well as all non - public decisions and investigative measures ( see paragraph CARDINAL ) . The law also specifies that the following are bound by secrecy vis - à - vis anyone who does not have access to the case file : the judges and judicial staff ( save in cases where disclosure would facilitate the investigation or is justified on public - order , administrative or judicial grounds ; see LAW ) , and also the parties , their friends and relatives , their lawyers , the latter ’s associates , consultants and staff , and any experts and witnesses . However , disclosure to friends or relatives by the parties or their lawyer is not punishable ( see LAW CPP / VD ) . Lastly , the law provides for a range of exceptions . As an exception to LAW , the cantonal investigating judge and , with the latter ’s agreement , the judge responsible for the preliminary inquiry or senior police officers specially appointed by the cantonal government [ ORG d’Etat ] ( see LAW , paragraph CARDINAL ) may inform the press , radio or television about a pending investigation if so required by the public interest or considerations of fairness , particularly where public cooperation is required to shed light on an offence , in cases which are particularly serious or are already known to the general public , or where erroneous information must be corrected or the general public reassured ( see Article CARDINALb paragraph CARDINAL CPP / VD ) .

The present case therefore concerns secrecy imposed by the law rather than by an official decision .

CARDINAL As a general rule , the reason for the confidentiality of judicial investigations , which applies to most sets of cantonal criminal proceedings , is the need to protect the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed . Nevertheless , the interests of the accused must not be disregarded either , particularly vis - à - vis the presumption of innocence and , more broadly , the accused ’s personal relations and interests ( see ORG , PERSON , CARDINALth ed . , DATE , § CARDINAL , no . CARDINAL , p. CARDINAL ; PERSON , op . cit . , § CARDINAL , no . DATE , p. CARDINAL ; PERSON , ORG pénale suisse : DATE . , DATE , no . CARDINAL , pp . CARDINAL et seq . ) , as well as the need to protect the opinion - forming process and the decision - making process within a ORG authority , as protected , precisely , by LAW ( see ORG CARDINAL FAC , point CARDINAL / aa , p. CARDINAL ) . ORG has already had occasion to deem such a purpose legitimate in itself . The aim is to guarantee the authority and impartiality of the judiciary in accordance with the wording of LAW , which also mentions the protection of the reputation or rights of others ( see PERSON v. GPE , judgment of CARDINAL DATE , § DATE , and PERSON and Others v. GPE , judgment of DATE , § CARDINAL ) .

Furthermore , in so far as the impugned publication concerned excerpts from records of interviews of the accused and reproduced certain letters sent by the latter to the investigating judge , this evidence can validly be classified secret , by prohibiting public access to it , as provided by the legislation of the GPE of GPE . This is the inescapable conclusion as regards the records of interviews of the accused , as it would be inadmissible to allow such documents to be discussed in the public sphere , before the conclusion of the investigation , before the trial and out of context , in a manner liable to influence the decisions taken by the investigating judge and the trial court . It is also the only possible conclusion as regards the letters sent by the accused to the investigating judge , which letters focused on practical problems and criticisms of his lawyer ( see ORG judgment , point CARDINAL , p. CARDINAL ) . We might point out here that it appears from the impugned publication DATE which the cantonal authorities did not reproduce in full in their decisions , although they did refer to it and its content is not disputed – that the aforementioned practical problems concerned requests for temporary release and for access to personal effects ( letters of DATE ) , for a change of cell ( letter of CARDINAL DATE ) and for authorisation to use the telephone ( letter of CARDINAL DATE ) . Regardless of the guarantee of the presumption of innocence and the inferences concerning the detainee ’s personality which might be drawn during the criminal proceedings from such correspondence , the detainee , whose liberty is considerably restricted , even in respect of everyday acts relating to his private , or indeed intimate , life , can expect the authority restricting his liberty to protect him from public exposure of the practical details of his life as a remand prisoner and as a person under examination ( see LAW ) .

It follows that in the instant case the information published by the appellant , in so far as it concerned the content of the records of his interviews and his correspondence with the investigating judge , can not be described as a secret of minor importance for the purposes of Article CARDINAL , paragraph CARDINAL , of LAW . Nonetheless , the impugned publication fulfilled the conditions set out in LAW , paragraph CARDINAL , of LAW .

CARDINAL Moreover , the information in question may be described as being secret in substantive terms because it was only accessible to a restricted number of persons ( the investigating judge and the parties to the proceedings ) . Furthermore , the investigating court was desirous to keep them secret , with not only a legitimate interest in doing so but an obligation under LAW , the justification for which was mentioned above ( see point PERSON above ) .

CARDINAL NORP Therefore , the only remaining point at issue is the existence of justification .

In short , the appellant submits that he had the professional duty ( under former Article CARDINAL of LAW ) as a journalist to publish the information in question because of the public interest for the population of LANGUAGE - speaking GPE of the ‘ GPE NORP case , which he describes as self - evident . He considers that in the light of NORP case - law , the basic point is that publication is justified in principle unless there is a pressing social need to maintain secrecy . From the standpoint of good faith , Article CARDINAL should apply to journalists who have nothing to do with the indiscretion committed by a third person and who receive information without committing any offence themselves other than the breach of secrecy stemming from the publication . Lastly , he contends that the mode of publication is not a relevant criterion .

CARDINAL As regards the former point , the cantonal court found that while the accident of CARDINAL DATE , the circumstances of which were undoubtedly unusual , had triggered a great deal of public emotion , it had nevertheless , in legal terms , been simply a road accident with fatal consequences , and did not in itself entail any obvious public interest . It was not a case of collective trauma on the part of the GPE population , which would have justified reassuring the citizens and keeping them informed of the progress of the investigation ( see judgment appealed against , point CARDINAL , p. CARDINAL ) .

It is true that the ‘ FAC attracted extensive media coverage ( see ORG judgment , point CARDINAL , p. CARDINAL , to which the cantonal judgment refers ( judgment appealed against , point B , p. CARDINAL ) ) . However , this circumstance alone , alongside the unusual nature of the accident , is insufficient to substantiate a major public interest in publishing the confidential information in question . Unless it can be justified per se , the public interest triggered by media coverage of events can not constitute a public interest in the disclosure of classified information , because that would mean that it would be sufficient to prompt public interest in a certain event in order subsequently to justify the publication of confidential information to fuel that interest . Furthermore , such a public interest is manifestly lacking as regards the letters published . As we have seen above ( see point QUANTITY above ) , these letters virtually exclusively concerned criticisms levelled by the accused against his lawyer and such practical problems as requests for temporary release , for access to personal effects , to change cells and to use the telephone . This type of information provides no relevant insights into the accident or the circumstances surrounding it . It relates to the private , or indeed intimate , life of the person in custody , and it is difficult to see any interest which its publication could satisfy other than a certain kind of voyeurism . The same applies to the appellant ’s requests to the investigating judge in relation to his choice of defence lawyer . Nor is it clear , as regards the records of his interviews , what political question or matter of public interest would have arisen or been worth debating in the public sphere , and the cantonal authorities explicitly ruled out the existence of any collective trauma which might have justified reassuring or informing the population . This finding of fact , which the appellant has not disputed in his public - law appeal , is binding on this court ( see section CARDINAL bis of LAW ) . That being the case , the appellant fails to demonstrate the ‘ obvious’ interest to the general public of the information published , and the cantonal court can not be criticised for having concluded that at the very most , such an interest involved satisfying an unhealthy curiosity .

CARDINAL NORP The other CARDINAL factors relied upon by the appellant concern his behaviour ( good faith in access to information and mode of publication ) .

CARDINAL.CARDINAL.CARDINAL DATE It should first of all be noted that Article CARDINAL of the Criminal Code punishes only the disclosure of information , irrespective of how the perpetrator obtained it . Moreover , even under Article CARDINAL ORG , ORG does not attach decisive importance to this fact when considering whether applicants have fulfilled their duties and responsibilities . The determining fact is rather that they could not claim in good faith to be unaware that disclosure of the information was punishable by law ( see PERSON v. GPE , cited above , § CARDINAL , and PERSON and PERSON v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALI ) . This point is well - established in the present case ( see section B above ) .

CARDINAL On the other hand , the mode of publication can play a more important role in the context of safeguarding freedom of expression . While ORG reiterates that neither it , nor the domestic courts for that matter , should substitute their own views for those of the press as to what technique of reporting should be adopted by journalists , in weighing up the interests at stake it nevertheless takes account of the content , vocabulary and format of the publication , and of the headings and sub - headings ( whether chosen by the journalist or the editors ) , and the accuracy of the information ( see PERSON v. GPE , cited above , § § CARDINAL et seq . , esp . CARDINAL , CARDINAL and CARDINAL ) .

In the instant case the cantonal court ruled that the tone adopted by the appellant in his article showed that his main concern was not , as he claims , to inform the general public about the ORG ’s conduct of the criminal investigation . The headline of the article ( ‘ Questioning of the mad driver’ , ‘ the reckless driver ’s PERSON ) already lacked objectivity . It suggested that the case had already been tried in the author ’s view , in the sense that the fatalities on FAC had been caused not by an ordinary motorist but by a ‘ mad PERSON , a man ‘ oblivious to the events and all the hubbub around him’ ; The journalist concluded by wondering whether the driver was not doing his best to ‘ make himself impossible to defend’ . The manner in which he quoted the excerpts from the records of interviews and reproduced the letters sent by the defendant to the judge pointed to the motives of the author of the impugned article : he confined himself to sensationalism , his modus operandi being exclusively geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel about this type of case . Readers of this highly biased publication would have formed an opinion and subjectively prejudged the future action to be taken by the courts regarding this case , without the least respect for the principle of presumption of innocence ( see judgment appealed against , point CARDINAL , pp . CARDINAL et seq . ) . The cantonal court concluded that this factor did not indicate that the public interest in receiving information prevailed . That court can not be criticised on that account .

NORP The appellant also submitted that the records of interviews and the letters would in any case be mentioned in subsequent public hearings . He inferred from this that preserving the confidentiality of this information could therefore not be justified by any ‘ pressing social ORG .

However , the mere possibility that the secrecy of criminal investigations might be lifted during a subsequent phase of proceedings , particularly during the trial , which is generally subject to the publicity principle , does not undermine the justification for keeping judicial investigations confidential , because the primary aim is to protect the opinion - forming and decision - making processes on the part not only of the trial court but also of the investigating authority , until the completion of this secret phase of proceedings . Moreover , far from being neutral and comprehensive , the publication in issue included comments and assessments which presented the information in issue in a particular light , without providing the opportunities for adversarial argument which are the very essence of proceedings in trial courts .

CARDINAL Lastly , the appellant did not explicitly criticise the amount of the fine imposed on him . Nor did he challenge the refusal to grant him a probationary period after which the fine would be struck ( former Article CARDINAL , point CARDINAL , in conjunction with former DATE , paragraph CARDINAL , of LAW ) under NORP law . From the angle of weighing up the interest in the interference , we might simply note that the fine imposed , the amount of which took into account a previous conviction dating back to DATE ( imposition of a LAW fine , which could be struck out after a DATE probationary period , for coercion and defamation ) , does not exceed CARDINAL the amount of the appellant ’s DATE income at the material time ( see ORG judgment , point CARDINAL , p. CARDINAL ) , and there is nothing to suggest that his freelance status at the time of the first - instance judgment led to any significant drop in his earnings . It should also be pointed out that at CHF CARDINAL,CARDINAL the amount of the fine is below the statutory maximum set out in former LAW , paragraph CARDINAL , of LAW ( as in force until DATE ) , and that this maximum amount , set by the legislature DATE , was not revised before the entry into force of the new general section of LAW , which now sets a figure of CHF MONEY ( see Article CARDINAL , paragraph CARDINAL , of LAW as in force since DATE ) . Furthermore , the sanction for the offence with which the appellant is charged did not prevent him from expressing his views , since it was imposed after the article had been published ( see PERSON v. GPE , cited above , § CARDINAL ) . That being the case , it is unclear , in view of the nature of the offence charged ( the least serious in the classification set out in LAW ) , the amount of the fine and the time of its imposition , how it could be regarded as a form of censorship .

CARDINAL NORP It follows from the foregoing that the appellant disclosed a secret within the meaning of Article CARDINAL , paragraph CARDINAL , of LAW and that he can not rely on any justifying factor in his favour . The decision appealed against does not violate federal law as interpreted in the light of the provisions of the LAW relied upon by the appellant . ”


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s CARDINAL DATE son , PERSON , was arrested by ORG on suspicion of robbery .

On DATE PERSON underwent a medical examination , which did not reveal any injuries .

On DATE the ORG ( “ the ORG ” ) remanded him in custody pending trial .

On DATE PERSON was placed in ORG ( “ the GPE ” ) .

On DATE he complained to the court that the investigator had subjected him to physical and psychological pressure in order to make him confess to a crime which he had not committed . His complaint was referred to ORG ( “ ORG Office ” ) .

At TIME on DATE PERSON was admitted to ORG , where he was diagnosed with a closed abdominal injury , rupture of the spleen , retroperitoneal haematoma , a closed chest injury , laceration ( tissue rupture ) of the right lung , left - sided pneumonia , post - traumatic anaemia , and fourth - degree haemorrhagic shock ( the most serious on a scale of CARDINAL , entailing critical blood loss of PERCENT ) .

On DATE PERSON underwent surgery twice in respect of the above - mentioned injuries and his spleen was removed .

On an unspecified date the applicant complained to the prosecuting authorities that her son had been physically assaulted in the GPE on DATE .

On DATE ORG refused to institute criminal proceedings against police officers in respect of PERSON ’s ill - treatment for lack of corpus delicti in respect of their actions .

On DATE PERSON was discharged from hospital and placed in the GPE ’s medical unit , where he remained until DATE .

On DATE ORG completed the internal investigation in respect of the applicant ’s complaint regarding the alleged ill - treatment of her son and found it to be without any basis .

On DATE the newspaper “ GPE ” , issued in the GPE region , published an article under the headline “ A bad [ police ] station ” ( « PERSON участок ORG ) about the alleged ill - treatment of the applicant ’s son in the NORP police station in DATE . The author relied , in particular , on the statements of CARDINAL of PERSON ’s cell - mates . A similar article titled “ Another incident in the NORP police station ” ( « FAC ORG РУВД » ) appeared in the internet media outlet “ FAC ” .

On DATE ORG overruled its decision of DATE and decided that further investigation was required . More specifically , PERSON had to be questioned as to who exactly had subjected him to ill - treatment in the GPE in DATE .

On DATE the investigator also questioned the applicant ’s son . PERSON contended that on CARDINAL DATE , when he was arrested , police officers had hit him in the stomach . He further stated that the investigator dealing with his case had also hit him in the stomach once in DATE . According to PERSON , these CARDINAL beatings had necessitated his urgent medical treatment on DATE . PERSON said that he did not understand why his mother had stated that he had been subjected to ill - treatment on DATE ( see paragraph CARDINAL above ) .

On DATE the investigator who was in charge of PERSON ’s criminal case was also questioned . He denied ever having seen PERSON in DATE , let alone having physically assaulted him .

On DATE ORG once again refused to institute criminal proceedings against the police officers in question , having found no evidence of criminal conduct . The decision not to prosecute noted that PERSON had not complained of any ill - treatment during his detention , and that his medical examination on DATE had not revealed any injuries ( see paragraph CARDINAL above ) . Following his hospitalisation on DATE , PERSON had mentioned to a doctor that he had been physically assaulted DATE , and the doctor had then stated to the investigator that PERSON ’s injuries had been sustained DATE before his admission to hospital . According to his medical file , ORG ’s injuries had originated from blows to his back with blunt objects TIME prior to his admission to hospital ( that is , during TIME CARDINAL to DATE ) . On the basis of the above information , ORG concluded that the allegation regarding PERSON ’s illtreatment was unsubstantiated .

On DATE an official of ORG ( “ ORG Office ” ) , to which the investigation had been transferred meanwhile for an unknown reason , also questioned PERSON time , he stated that he had only been ill - treated on CARDINAL DATE , but never thereafter .

On DATE CARDINAL inmates with whom PERSON had shared a cell in the GPE were also questioned . They said that he had felt unwell on TIME to CARDINAL April CARDINAL , and that an ambulance had been called for him on TIME DATE . They also submitted that nobody had been violent towards him or had put him under any psychological pressure .

On DATE the GPE ’s medical assistant ( фельдшер ) , who had been on duty at the time of the events , was questioned as part of the investigation . He stated that he had been called to cell no . CARDINAL , where PERSON had been held , at TIME on DATE . PERSON had complained of weakness , vertigo and blurred vision . He had not alleged any ill - treatment and a visual examination had not revealed any injuries . He had had low blood pressure . The medical assistant said that he had provided PERSON with the necessary medical assistance and had reported the matter to the doctor on duty . The doctor on duty at the time of the events made a similar statement .

On DATE an official from ORG questioned the ambulance paramedics who had been called to assist PERSON They did not remember the circumstances .

On DATE ORG questioned PERSON again . He stated that NORP police officers had physically assaulted him following his arrest on DATE . He considered that the sudden deterioration in his health on DATE had been the consequence of that ill - treatment .

From DATE to CARDINAL DATE a forensic medical expert evaluation of ORG medical file was carried out , with a view to clarifying exactly how and when he had sustained his injuries and how serious those injuries had been . The expert concluded that PERSON had sustained an insignificant spleen trauma DATE prior to undergoing surgery , on DATE . More specifically , he had sustained a splenic parenchyma rupture which had presented no major danger and would have healed normally . However , TIME before surgery ( at TIME on DATE ) PERSON had sustained a serious non - penetrating stomach injury resulting from a blow to the left side of his back with a blunt object . As a result , he had sustained a haemoperitoneum , a partial rupture of the diaphragm and trauma of the spleen .

On DATE the applicant ’s son signed a form of authority , authorising PERSON ( the lawyer who represented the applicant before the Court – see paragraph CARDINAL above ) to represent him in proceedings before the ORG . He did not , however , lodge an application with the ORG on that occasion . According to the applicant , her son did intend to lodge an application regarding both his ill - treatment and the investigation into that allegation .

In DATE PERSON ’s lawyer challenged the refusal to institute criminal proceedings of CARDINAL DATE ( see paragraph DATE above ) with ORG and before ORG . He submitted , in particular , that the origin of PERSON ’s injuries while he had been under the authorities’ control had never been explained .

On DATE ORG , relying on the findings of the forensic medical expert report of CARDINAL DATE ( see paragraph CARDINAL above ) , opened a criminal case in respect of unidentified individuals who had caused PERSON grievous bodily harm . The investigation was entrusted to ORG .

On DATE the ORG quashed the decision of ORG of DATE and remitted the case for additional investigation .

DATE and DATE another forensic medical expert evaluation was carried out . It confirmed the findings of the earlier expert report of CARDINAL DATE ( see paragraph CARDINAL above ) , but added that a fall could not be ruled out as a possible cause of the injuries .

On DATE ORG issued another refusal to institute criminal proceedings against the police officers in question for lack of corpus delicti in their actions .

On DATE PERSON was assigned victim status in the criminal investigation launched on DATE . On the same date the investigator of ORG questioned him . PERSON maintained his earlier version of events , namely that his ill - treatment had consisted of the following CARDINAL episodes : NORP police officers physically assaulting him following his arrest on DATE , and the investigator in charge hitting him once in the stomach at DATE .

On DATE the ORG administration sent to the investigator the list of the staff members who had been on duty during TIME to DATE . As regards the list of PERSON ’s cell - mates at the time , the administration informed the investigator that no records were kept in that regard .

On DATE PERSON , who had been transferred from the GPE to a civilian hospital and who was suffering from HIV , tuberculosis and a number of concomitant diseases , died ( see paragraphs CARDINAL - CARDINAL below ) .

On an unspecified date in DATE the applicant was granted status as PERSON ’s successor in the criminal investigation into his ill - treatment . She was represented by the same lawyer who had earlier represented PERSON

On DATE the Chief of ORG informed the applicant ’s lawyer that the investigation , which had been initiated on DATE ( see paragraph CARDINAL above ) , was ongoing .

On DATE the applicant enquired with ORG about the progress of the investigation .

NORP On DATE ORG informed her that the investigator in charge had been disciplined for his failure to respond to the above inquiry .

It is not clear whether any investigative measures were implemented DATE .

On DATE the investigator of ORG made an entry in ORG about the assault on PERSON causing grievous bodily harm . That constituted a new procedure for initiating a pre - trial investigation under LAW with effect from DATE .

DATE , and DATE , when he was a detainee in the GPE , PERSON was examined at GPE at his request . He tested positive for HIV on both occasions .

According to the information submitted by the ORG , DATE and DATE PERSON ’s health remained stable and he did not seek medical assistance .

On DATE PERSON had his lungs X - rayed and was diagnosed , for the first time , with tuberculosis of the right lung . It was unclear how advanced the tuberculosis was . According to the Government , he was prescribed preventive treatment for DATE .

On DATE PERSON ’s lawyer enquired with the management of the GPE about his client ’s condition . He asked , in particular , for clarification as to whether PERSON had been diagnosed with tuberculosis while in detention , and requested copies of the relevant documents .

On DATE the GPE deputy governor and the chief of the medical unit replied that , following a planned X - ray DATE , PERSON had been diagnosed with infiltrative tuberculosis of the right lung and had been transferred to the GPE ’s medical unit for treatment . In another letter ( dated DATE ) from the GPE management to the applicant ’s lawyer ( see also paragraph CARDINAL below ) , it was stated that on DATE PERSON was also diagnosed as having HIV , chronic gastritis , hepatitis in remission and a drug addiction . In addition , he was classed as being in recovery following the removal of his spleen .

According to an extract from PERSON ’s medical records , he was examined repeatedly by the GPE ’s doctors DATE . Each record begins with the statement that PERSON ’s complaints remained the same , without specifying of what he complained . The records of CARDINAL July and CARDINAL DATE further note that PERSON complained of weakness . Furthermore , it was recorded that PERSON had complained of periodic coughing with purulent sputum during his examinations on CARDINAL DATE and CARDINAL DATE . From DATE a deterioration in PERSON ’s health was noted . On DATE an ambulance was called for him .

As indicated in the letter sent by the ORG management on CARDINAL DATE in reply to the applicant ’s lawyer ’s inquiry of CARDINAL DATE , PERSON had an X - ray which revealed that the treatment of his tuberculosis was evolving positively . A decision was made to continue that treatment .

On DATE PERSON was taken to ORG no . CARDINAL , where the following diagnoses were made : infiltrative tuberculosis of the right lung , HIV in an unclear phase , meningitis caused by HIV , chronic hepatitis and gastritis in remission . PERSON was also classed as being in recovery following the removal of his spleen .

On DATE PERSON died in the hospital .

In a letter of CARDINAL DATE to the applicant ’s lawyer the GPE management noted that they had previously asked ORG , which was dealing with the criminal case against PERSON , to either accelerate the examination of that case or release PERSON on health grounds . However , they had not received any reply .

On DATE the investigator of ORG inspected PERSON ’s body in the hospital . According to the report on “ the inspection of the scene of the incident ” , there was no indication of a violent death .

On DATE , the applicant asked the police to transfer the body to a mortuary , with a view to establishing the cause of death .

According to PERSON ’s death certificate , which was issued on DATE , his death had been caused by acute heart failure , HIV and multiple concomitant illnesses .

The autopsy report , which was also issued on DATE , specified that the immediate causes of death had been a brain tumour , pulmonary and heart failure resulting from “ express autointoxication following cryptococcal meningoencephalitis , macrofocal overwhelming subtotal bilateral pneumonia and focal pulmonary tuberculosis of a person suffering from HIV and drug addiction ” . The report also noted that PERSON had had “ shock kidneys ” , cachexia , oropharyngeal candidiasis , and albuminous degeneration of the tissues of the kidneys , cardiac muscle and liver .

The applicant made a complaint to the prosecuting authorities regarding her son ’s premature death and requested an investigation .

On DATE ORG refused to open a criminal investigation into the matter , having concluded that there was no indication of a criminal offence .

On DATE ORG overruled that decision on the grounds that it was based on a superficial investigation .

On DATE the investigator once again refused to open a criminal case in relation to PERSON ’s death . Relying on the scene inspection report of CARDINAL DATE and the death certificate of DATE ( see paragraphs CARDINAL and DATE above ) , he considered that there was no third - party involvement in the death .

On DATE the applicant complained to ORG about the ineffectiveness of the investigation . In particular , she submitted that the adequacy and appropriateness of the medical care provided for her son had never been assessed . She noted that there had been no medical monitoring or treatment of PERSON as regards his HIV . Furthermore , while the HIV diagnosis presupposed a high risk of tuberculosis , PERSON had not had an X - ray until DATE after he had tested positive for HIV . The applicant also complained that the intervals between the X - ray sessions had been unreasonably long . Thus , after his X - ray on DATE PERSON had subsequently not had an X - ray until CARDINAL DATE , whereas a repeat X - ray should have been performed within a DATE time period . Furthermore , although PERSON ’s treatment for tuberculosis had been unsuccessful , it had been continued , and his resistance to the medications prescribed had never been verified . Lastly , the applicant complained that the authorities had not provided her with all the information concerning her son ’s health while he had still been alive , despite the numerous inquiries made by her lawyer . In particular , she had only found out about her son ’s HIV after his death .

On DATE ORG forwarded the above complaint to ORG .

On DATE ORG wrote to the applicant saying that her complaint concerning her son ’s death and the allegedly inadequate medical care he had received had already been investigated . As a result , it had been decided on DATE that there were no grounds for opening a criminal case ( see paragraph CARDINAL above ) . It remained open to the applicant to challenge that decision .

There is no information in the case file about any subsequent developments .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE . At the time of lodging his application , he was detained in FAC . He now lives in GPE .

On DATE ORG convicted the applicant of dangerous assault . It sentenced him to DATE and CARDINAL months’ imprisonment and ordered his preventive detention under LAW ( see paragraph CARDINAL below ) . The court found that the applicant had stalked his former girlfriend , terrorised her and her family with telephone calls , sudden appearances and threats against their life and limb , had finally waylaid his former girlfriend in front of her workplace and had stabbed her twice in the neck with a pair of scissors with the intention of killing her . He had stopped short of stabbing his victim to death . Endorsing the findings psychiatric expert A. had set out in his report , the court was of the view that the applicant had acted with diminished criminal responsibility as he had been in a state of affective excitement and suffered from a neurasthenic syndrome at the time of the offence . The court found that the applicant , who had previously been convicted in DATE , DATE and DATE of comparable offences including dangerous and sexual assault and rape , committed mostly against former girlfriends at the end of their relationship with him , had a propensity to commit serious violent offences and was dangerous to the public .

The applicant served his full term of imprisonment , which ended on DATE , essentially in FAC .

The applicant was not released at the end of his prison sentence but remained in factual preventive detention without a formal decision of the competent courts for the execution of the preventive detention order under LAW ( see paragraph CARDINAL below ) , because the proceedings were delayed .

On DATE ORG decided that the applicant ’s further preventive detention without a court decision ordering its execution was unlawful , and ordered its interruption . The applicant was released on DATE .

On DATE ORG ordered the execution of the applicant ’s preventive detention in accordance with LAW as it was not reasonable to expect that the applicant would commit no further unlawful acts if released . It took note , in this context , of the view expressed by psychotherapy expert PERSON , who had considered that the applicant ’s impulsive and offensive behaviour in the hearings in DATE had confirmed the finding in his report dated DATE that the applicant was still dangerous to the public .

The applicant appealed against the decision . He remained at liberty while the appeal was pending .

While he was at liberty , he found a flat and a job and voluntarily started psychotherapy treatment with a female psychologist , So . He regularly attended DATE therapy sessions with So . and did not commit any criminal offences while at liberty .

On DATE ORG upheld ORG decision . Just like ORG , it based its decision on a medical expert opinion drawn up previously by psychotherapy expert PERSON and psychologist PERSON had examined the applicant on CARDINAL occasions DATE . PERSON had performed psychological tests with the applicant in DATE . Both experts had issued their common written medical report on DATE and had supplemented it with a further medical statement answering the questions of counsel representing the applicant on DATE . The original report was moreover based on the examination of the applicant ’s prison files and a large number of investigation files , as well as on an interview with one of his fellow prison inmates .

In their written report , the experts came to the conclusion that the applicant suffered from a narcissistic and antisocial personality disorder . They were of the view that there was a very high risk that the applicant would reoffend because of his personality structure and could be expected to commit serious criminal offences mainly directed against potential female GPE physical and sexual integrity . The applicant had continually committed new offences while on probation , so that his probation had been revoked on CARDINAL occasions . He had mostly committed crimes against the physical and sexual integrity of women and usually at the end of his relationships , when he had been unable to accept that his girlfriend had left him . Therapeutic treatment had not been successful so far .

The court endorsed the findings of the psychiatric experts . It ruled that although the applicant had not committed any offences during DATE at liberty , and although he had voluntarily and regularly undergone psychological treatment during DATE , there was no reason to believe that he would abstain from reoffending . In the past the applicant had already abstained from committing further offences for longer periods . Situations similar to those in which the applicant had previously committed offences , especially against the physical and sexual integrity of his female partners , at the end of relationships , were likely to arise and to escalate again just as in the past .

On DATE the applicant returned voluntarily to FAC for the continuation of his preventive detention .

On DATE ORG declined to consider the constitutional complaint lodged by the applicant against ORG and ORG decision on the execution of the preventive detention order ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE an application ( no . CARDINAL ) lodged with this ORG in this context was declared inadmissible by a Single Judge in a procedure pursuant to LAW .

On DATE ORG decided in its first periodic review proceedings , in accordance with Articles CARDINALd § CARDINAL and CARDINALe § § CARDINAL and CARDINAL of LAW in their then relevant version ( see paragraph CARDINAL below ) , that the applicant ’s preventive detention was to continue . It found that it was not reasonable to expect the applicant to commit no further unlawful acts on his release .

The court heard the prison authorities which , in their written statement of DATE , submitted that the applicant was not willing to work on his problems and refused any therapeutic treatment in the detention centre . The court also heard the applicant on DATE . It further based its decision to extend the applicant ’s preventive detention on the opinion of psychotherapy expert PERSON and psychologist PERSON of DATE , supplemented on DATE ( see paragraph CARDINAL above ) . It had regard to the fact that the applicant had been convicted CARDINAL times since DATE , including CARDINAL convictions for violent crimes .

ORG further dismissed the applicant ’s request for a new psychiatric expert opinion . It found that Article CARDINAL § CARDINAL , read in conjunction with LAW of LAW ( see paragraph CARDINAL below ) , only required a new psychiatric expert report as a basis for a periodic review decision if the court was considering releasing a detainee from preventive detention on probation , in order to ensure that he was no longer a danger to the public . The court held that , in accordance with the case - law of ORG ( see decision of DATE , file no . CARDINAL BvR CARDINAL/CARDINAL ) and of ORG ( see decision of DATE , file no . VerfGH CARDINAL/CARDINAL ) it was otherwise within the discretion of the court assessing the need to extend the preventive detention order to decide whether a new expert opinion was necessary . As a rule , an expert opinion would be necessary if the detainee suffered from psychiatric anomalies that demanded a psychiatric expert ’s assessment in order to be able to predict the danger he represented for the public . Otherwise , a new psychiatric expert report was generally not necessary unless special new circumstances demanded a new examination of the detainee .

The court found that , in accordance with the legal standards described , there was no necessity to seek a new expert opinion . It referred to the arguments given in ORG decision of CARDINAL DATE , adding that there had been no significant changes since then . The applicant had refused to undergo therapeutic treatment within the detention centre since he had been returned to preventive detention . His DATE did not warrant a different conclusion as regards the danger he represented in the circumstances of his case . The written expert opinion of GPE DATE , supplemented on DATE and explained by PERSON at CARDINAL hearings , lasting a total of TIME , before ORG in DATE , was therefore still recent enough .

The court was , however , of the view that the applicant should be allowed to continue his therapy with the external psychologist So . , which he had not been authorised to pursue since his renewed preventive detention . The prison authorities should allow him to continue and organise escorted short - term leave for therapy sessions with his psychologist outside the detention centre .

On DATE ORG dismissed the applicant ’s appeal . The court considered that releasing the applicant on probation on the condition that he underwent therapeutic treatment outside the detention centre would be irresponsible . There were no convincing and verifiable indications that the applicant had tackled his offences or the flaws in his character that had led to them . DATE he had spent at liberty during the interruption of his preventive detention did not prove otherwise , although he had not reoffended during that period of time . The applicant had already abstained from committing offences for longer periods of time in the past , but had nevertheless repeatedly committed serious offences against the physical integrity of his female partners when they had ended their relationship with him . Having regard also to the personality disorders leading to his dangerousness , the period of DATE at liberty was therefore too short to prove that the applicant was no longer dangerous . In this regard , the court referred to the reasoning in its decision of CARDINAL DATE and the expert opinion of PERCENT PERSON on which that decision was based ( see paragraphs CARDINAL - CARDINAL above ) .

The court further recognised that the applicant had voluntarily undergone psychological treatment once per week with the psychologist So . while at liberty . However , it considered that there was no proof of the success of this treatment . Instead , the impulsive and offensive way in which the applicant treated other people , notably those working in the detention centre , showed that his attitude and his character had not changed and that he was still unwilling to cooperate .

NORP Moreover the court found that , although the prison authorities had , without giving proper reasons , refused to grant the applicant escorted shortterm leave from prison , especially short - term leave for the purpose of meeting his external therapist So . , such deficiencies in the execution of the preventive detention did not justify the applicant ’s release . The court recognised that prison leave was necessary in order to enable the applicant , in the long run , to prove his capacity to live at liberty again without committing further offences . However , the court was of the view that , even if the applicant had been granted the necessary leave since his readmission into preventive detention , the period passed since then would have been too short to prove that he was no longer dangerous . Therefore , the continuation of the applicant ’s detention was not yet excessive .

ORG was moreover of the view that ORG decision not to commission a new medical expert opinion was lawful and did not breach its duty to establish the relevant facts . As explained above , a new psychiatric expert would not be confronted with a significantly different situation to the CARDINAL B. and PERSON had found when they prepared their expert report . The applicant ’s refusal to cooperate and to accept further psychological treatment within the detention centre showed that the therapy with So . had not significantly changed his character and behaviour .

On DATE ORG declined to consider the applicant ’s constitutional complaint against the decisions of ORG and ORG , in which the applicant had alleged breaches of his constitutional rights to liberty and to a fair trial ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE , upon the applicant ’s appeal , ORG , in a separate decision , quashed the prison authorities’ and ORG decision refusing the applicant short - term leave to continue his psychotherapy treatment with So . as from DATE . The court ordered the prison authorities to grant the applicant escorted shortterm leave DATE in order to undergo further psychotherapy treatment with the external psychologist , So .

The applicant was enabled to attend psychotherapy sessions with So . until his relationship of trust with the psychologist came to an end in DATE . On DATE the GPE prison authorities thereupon suspended the applicant ’s prison leave , finding that the applicant had repeatedly threatened So . On DATE ORG upheld that decision . It found that there was a risk that the applicant would use the prison leave to commit further offences , seeing that his dispute with So . resembled the situation arising in the applicant ’s past relationships with women prior to his committing serious offences against them .

The applicant ’s subsequent requests to be granted access to treatment with the external psychiatric expert PERSON in a GPE clinic were turned down by the prison authorities , confirmed by ORG . ORG quashed these decisions on DATE and CARDINAL DATE and ordered the prison authorities to reconsider the applicant ’s requests in view of the court ’s findings . In its decision of CARDINAL DATE ORG found that , as it had explained in its decision of DATE , the applicant could not be obliged to undergo therapy in prison . The applicant resumed external psychotherapy in DATE .

On CARDINAL DATE ORG issued its decision in the fresh periodic review proceedings . It held that the execution of the preventive detention was to be suspended on probation as from DATE , ordered the applicant ’s probationary supervision for DATE and ruled , inter alia , that the applicant was to avoid any contact with his former external psychologist So . and her family , as he had started to stalk her and threaten her with e - mails and telephone calls .

The court , endorsing the findings in a new external psychiatric expert opinion issued by PERSON , held that although the probability that the applicant would reoffend at liberty was still high , it would be possible to release the applicant on probation after a preliminary period of DATE if the pre - operational phase was mastered by the applicant without further problems . As the prison authorities had ignored and boycotted the court ’s orders to grant the applicant access to external psychological treatment for DATE in a way the court had never seen before and which it found to be unconstitutional , the applicant ’s interest in being at liberty now outweighed the public interest .

On DATE ORG upheld that decision on appeal . It found that the applicant ’s immediate release was not to be ordered owing to the danger he represented . Referring to a report drawn up by expert NORP in DATE , it stressed in that context that the fact that the applicant had not reoffended while at liberty in DATE was not conclusive of his not representing a danger . The applicant had previously committed offences in the context of relationships with women . However , he had not had such a relationship during the time he was at liberty . Furthermore , he did not have a right to choose freely his therapist .

The applicant was released on parole on DATE .


CASE OF MANOLE AND "ROMANIAN FARMERS DIRECT" v. ROMANIA

Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);No violation of Article 11 - Freedom of assembly and association

Iulia Motoc;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

Mr PERSON , the first applicant , was born in DATE and lives in NORP , GPE .

By decision of DATE the first applicant , a farmer , and CARDINAL other persons meeting in constituent assembly decided to form a trade union entitled “ Agricultural trade union ORG ” . The first applicant was elected President of the new trade union .

On DATE the first applicant applied to ORG seeking the registration of the trade union which he represented , with a view to conferring legal personality on it . He enclosed with his request the statutes of the trade union and the relevant authority form presented to him by ORG , as notarised on DATE .

According to those statutes , the applicant trade union ’s main purpose was to defend the interests of its members , that is to say farmers and persons providing services for farmers , including transport facilities . The first applicant described that purpose as follows :

“ The NORP ORG trade union emerged from the desire to help NORP farmers move on from subsistence farming to agriculture as practised in ORG , where the production of rural farms is directed towards the market rather than self - sufficiency , as is currently the case in our country , [ in order to ] provide farmers with a decent standard of living .

Our trade union has set itself the aim of organising local centres ( CARDINAL adjacent municipalities ) in all the counties of GPE with a view to providing legal information , accountancy advice and judicial assistance to individual farmers ....

We believe that it would be advantageous if as many farmers as possible could come together to think and act in unison in order to ensure the success of our agricultural activities .... ”

By judgment of DATE the district court , sitting in single - judge formation ( Judge PERSON ) , declared the request for registration of the trade union inadmissible on the grounds that only employees ( persoanele încadrate în muncă ) and civil servants could set up trade unions .

On appeal on points of law lodged by the applicant trade union , represented by the first applicant , that judgment was quashed by decision of ORG on DATE . That court held that the action had been wrongly declared inadmissible and that the district court should have examined the merits of the case .

By judgment of DATE ORG , sitting in the same single - judge formation , rejected the request as ill - founded on the grounds that under LAW . CARDINAL/CARDINAL on trade unions ( ORG sindicatelor ) , farmers could not set up trade unions but could only join pre - existing unions .

NORP The applicant trade union lodged an appeal on points of law , submitting , first of all , that the court which had tried the case after invalidation had been the same which had delivered the invalidated judgment of DATE , and secondly , that LAW guaranteeing trade union rights had been infringed .

By decision of CARDINAL DATE the county court accepted the applicant trade union ’s appeal on points of law insofar as it concerned the make - up of the first - instance trial court , and , assessing the merits of the case , rejected the trade union ’s application for the registration of the trade union . In doing so the court observed that only employees holding a contract of employment and civil servants could set up trade unions , to the exclusion of farmers and other self - employed persons , who could only join pre - existing trade unions .

By a handwritten authority form dated DATE , the first applicant , acting in his own name and on behalf of the applicant trade union – in his capacity as the latter ’s representative – appointed PERSON counsel to represent them before the ORG . That authority was signed by both the first applicant and PERSON .

The authority may be translated as follows :

“ I , the undersigned PERSON , born on DATE in the municipality of ... , in my capacity as President of the ORG trade union ‘ ORG Direct’ and as legal representative of that trade union , appoint as counsel to defend our case before ORG , a lawyer practising in GPE , GPE . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant served his prison sentence in the closed and semi - open sections of GPE prison .

In the period from DATE to CARDINAL DATE and from CARDINAL DATE to CARDINAL DATE he was held in the closed section : for DATE in cell CARDINAL , measuring QUANTITY ( not including a separate QUANTITY sanitary facility ) shared with CARDINAL other inmates and with QUANTITY of personal space and for DATE in cell CARDINAL measuring QUANTITY ( not including a separate QUANTITY sanitary facility ) shared with CARDINAL other inmates and with QUANTITY of personal space .

In the period DATE and DATE he was held in the semi - open section for DATE in cell CARDINAL , measuring QUANTITY ( not including a separate QUANTITY sanitary facility ) shared with CARDINAL other inmates and with QUANTITY of personal space .

As regards the general characteristics of the cells in the closed and semi - open sections , material conditions inside the cells , sanitary conditions and health care , see the judgment in ORG and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § § DATE , DATE .

As to the out - of - cell time in the closed section , the ORG found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities , most of which were to take place in the recreation room . There was , however , CARDINAL ORG - metre recreation room per floor , which was to be used by CARDINAL inmates at most ( NORP and Others § DATE ) .

As to the out - of - cell time in the semi - open section , the ORG submitted that the cell doors in the semi - open section of the prison were unlocked , except from TIME ( on DATE and DATE from TIME ) until TIME ( on DATE , DATE and during holidays until TIME ) . During this time prisoners could move freely in the corridor ( QUANTITY ) , living quarters of co - prisoners or in the indoor or outdoor exercise areas , in accordance with prison rules . The Government contended that this regime had been in place for DATE .

As regards the cell temperature , the data provided by the Government showed that the average temperature in the cells in TIME ( TIME ) in DATE and DATE had been approximately CARDINAL , exceeding CARDINAL on DATE .


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants are NORP nationals who , at the material time , lived in various districts of GPE . They are close relatives of individuals who disappeared after being unlawfully detained by servicemen during special operations . In each of the applications , the events concerned took place in areas under the full control of the NORP federal forces . The applicants have had no news of their missing relatives since the alleged arrests .

The applicants reported the abductions to lawenforcement bodies and official investigations were opened ; however , the proceedings were repeatedly suspended and resumed , and have remained pending for DATE without achieving any tangible results . The investigations have consisted mainly of requests for information and formal requests for operational - search measures to be carried out by counterparts in various parts of GPE and other regions of LOC . The requests received either negative responses or none at all .

From the documents submitted , it appears that the relevant ORG authorities were unable to identify the ORG servicemen allegedly involved in the arrests or abductions .

In their observations , the Government did not challenge the description of the circumstances of the abductions as presented by the applicants ; however , they stated that there was no evidence to prove beyond reasonable doubt that ORG agents had been involved in the incidents .

Summaries of the facts in respect of each individual application are set out below . Each account is based on statements provided by the applicants and their relatives and/or neighbours to both the ORG and domestic investigative authorities . The personal details of the applicants and their missing relatives , and some other key facts , are summarised in the Appendix I.

The applicant , ORG , was born in DATE and lives in LOC in the Urus - Martan district of GPE . She is the sister of PERSON PERSON , who was born in DATE .

On DATE , during the daytime , Mr PERSON and his friend , PERSON PERSON , were at the applicant ’s house in PERSON when a group of CARDINAL armed servicemen from LAW ( Отдел милиции особого назначения ( ОМОН ) ) ( hereinafter “ the LAW ” ) comprised of servicemen from LOC arrived at the settlement in several vehicles . Some of them were wearing balaclavas . They cordoned off the area and ordered the residents to stay inside . CARDINAL servicemen broke into the applicant ’s house and searched it . Then they beat up the applicant ’s brother and his friend , pulled their T - shirts over their heads , put them into ORG - type minivans and took them to the ORG military commander ’s office . The applicant and a number of local residents witnessed the events .

The Perm OMON unit was stationed on the LOC of an orphanage in the vicinity of the applicant ’s house . At the material time , CARDINAL brothers of the LOC family were in charge of the ORG unit . It appears that they were involved in the abduction as they were not wearing masks and could therefore be identified by the applicant . The following day the military commander ’s office accepted a food package for PERSON , but DATE the servicemen denied that he had ever been detained on their LOC .

The applicant has not seen Mr PERSON since the abduction on DATE .

The above account is based on witness statements provided by the applicant and copies of documents from the investigation file furnished by the Government .

From the documents furnished by the applicant and CARDINAL pages of documents from criminal case no . CARDINAL submitted by the Government , information about the ensuing official investigation can be summarised as follows .

On DATE Mr PERSON ’s father , PERSON ORG , reported the abduction to the ORG military commander ’s office and the ORG military prosecutor ’s office , stating that his son had allegedly been taken to the ORG military commander ’s office with PERSON PERSON , and that the CARDINAL men had been detained as the latter had had no identity documents on him .

On or around CARDINAL DATE the abduction report was forwarded to the Urus - Martan temporary police department ( Временный отдел внутренних дел ( ORG ) ) ( hereinafter “ NORP ” ) and from there to the Urus - Martan district prosecutor ’s office .

On DATE the Urus - Martan district prosecutor ’s office returned the complaint to the PERSON stating that it had been submitted “ prematurely ” .

On DATE investigators from the PERSON refused to initiate criminal proceedings into the abduction .

On DATE the Urus - Martan district prosecutor ’s office overruled the refusal and opened criminal case no . CARDINAL . The decision stated that the applicant ’s brother had been detained “ during a special operation , the lawfulness of which has not been confirmed ” .

From the documents submitted , it appears that DATE and DATE the investigation was suspended and no investigative steps were taken . The applicant was not informed thereof .

It appears that on an unspecified date in DATE or DATE the investigation was resumed at the request of the applicant and on DATE she was granted victim status in the criminal case .

On DATE the investigation was suspended . The applicant was informed thereof .

On DATE the applicant complained to ORG that the investigation into the abduction was protracted and asked for it to be resumed .

On DATE the court rejected the applicant ’s complaint , as the investigation had been resumed on DATE .

On DATE the investigation was again suspended . The applicant was informed thereof .

From the documents submitted , it appears that the investigation is still pending .

The applicant , PERSON , was born in DATE and lives in PERSON , GPE . She is the wife of Mr PERSON , who was born in DATE .

At the material time , Mr PERSON worked as a driver for ORG ( ORG производственно-технологической комплектации ( УПТК ) ) based on the premises of the main military base of the NORP federal troops in GPE , GPE . On TIME , on his last day of work , he went there with the applicant to the military base to collect a DATE ’s salary arrears . The couple arrived at the checkpoint at the entrance to the base at TIME The applicant ’s husband went inside , while she was told to wait for him at the entrance .

The applicant spent DATE waiting for her husband but he never came out . In the evening she had to return home . She spent DATE at the checkpoint waiting for him but to no avail . On DATE she managed to speak to a woman from the admissions office who issued entrance passes to the military base . She confirmed that on CARDINAL DATE she had issued a pass for PERSON . She had also made CARDINAL for him for DATE but he had not picked it up , which meant that he must have remained inside and not left the LOC . The applicant ’s husband has been missing ever since .

The above account is based on statements provided by the applicant and copies of documents from the investigation file .

The Government submitted copies of a small number of documents from criminal case file no . DATE opened into the disappearance of Mr Babuyev , covering the period DATE . The relevant information may be summarised as follows .

On DATE the applicant reported her husband ’s disappearance at the military base to various authorities . Her statements concerning the circumstances of the incident were similar to the account she submitted to the ORG .

On DATE the PERSON city prosecutor ’s office initiated a criminal investigation into the events , under LAW ( kidnapping ) . The case file was given the number DATE . The relevant parts of the decision read as follows :

“ ... On DATE [ PERSON ] went to the military settlement of GPE in PERSON to collect his salary arrears ; other employees of [ the department ] saw [ him ] on the premises ... [ He ] did not exit the premises and did not return home ... ”

On DATE the applicant was granted victim status in the criminal case .

On DATE the military prosecutor ’s office of military unit no . CARDINAL informed the applicant that further to her complaints , they had conducted a prosecutor ’s inquiry into her husband ’s disappearance which had not established the involvement of military servicemen in the incident .

On DATE the investigation was suspended . The applicant was not informed thereof .

On an unspecified date in DATE and on CARDINAL DATE the applicant reported her husband ’s unlawful arrest and subsequent disappearance to ORG office and requested its assistance in the search for him .

On DATE ORG office informed the applicant that their inquiry had not established the involvement of military servicemen in her husband ’s disappearance .

On DATE LOC declared Mr PERSON missing at the request of the applicant .

On an unspecified date DATE investigators replied to requests by the applicant for information by providing her with a statement to the effect that the investigation into her husband ’s abduction was in progress but his whereabouts had not yet been established .

On DATE and then on DATE the applicant asked the investigators to inform her of the progress of the investigation and for access the case file . No replies were given to these requests .

On DATE the investigation was resumed at the request of the applicant . From the documents submitted , it appears that it is still pending .

The applicants are Mr PERSON , who was born in DATE ( “ the first applicant ” ) and PERSON ( also spelled PERSON ) , who was born in DATE ( “ the second applicant ” ) . The applicants , who live in FAC in the Urus - Martan district of GPE , are the brother and niece of Mr PERSON ( “ Mr Kagermanov ” ) , who was born in DATE .

The applicants’ family home consisted of CARDINAL dwellings with a shared courtyard . Mr PERSON lived alone in a separate dwelling . At the material time , PERSON was under curfew . At TIME on CARDINAL DATE the first applicant learnt from a family member that PERSON PERSON had been abducted TIME by a group of armed servicemen , who had arrived at his home in a LOC lorry and broken down the door . The neighbours had heard the abductors driving off in the direction of ORG . The applicant thought that his brother had been taken by ORG servicemen , as at the time many young men had been abducted in a similar manner during curfew hours . In addition , local residents had seen servicemen driving armoured personnel carriers ( APCs ) in the vicinity that night .

TIME the applicants found NORP lorry tyre tracks and footprints of military boots in the snow next to Mr PERSON dwelling .

At TIME CARDINAL NORP servicemen in several APCs and LOC lorries arrived at the PERSON family home . They blew up Mr PERSON ’s household small oil refinery in his backyard and searched the premises . According to the applicants , the servicemen had carried out a sweeping - up operation in the area and had searched other houses with oil refineries .

The applicants have not seen Mr PERSON since DATE .

The Government did not furnish any documents from the investigation file . From the documents submitted by the applicants , the steps taken by the investigative authorities may be summarised as follows .

On DATE Mr PERSON ’s mother , PERSON , reported her son ’s abduction by military servicemen to the Urus - Martan district prosecutor ’s office .

On DATE the Urus - Martan district prosecutor ’s office opened criminal case no . DATE .

On unspecified dates in DATE investigators questioned the applicants , who both stated they had discovered that Mr PERSON had disappeared at TIME on DATE . They had found the entrance to his home broken down , footprints of military boots , his belongings scattered around and his broken watch indicating TIME on the floor . The applicants further stated that at TIME a group of CARDINAL NORP military servicemen in several APCs and LOC lorries had arrived at their house , searched it and destroyed Mr PERSON ’s oil refinery .

In DATE and DATE investigators questioned the applicants and their family members . The statements received were similar to the account furnished by the applicants to the ORG .

On DATE the investigation was suspended . The applicants were not informed thereof .

On DATE the second applicant requested access to the investigation file . Her request was refused by the investigators on DATE .

On an unspecified date DATE she requested victim status in the criminal case . On DATE the investigators granted this request and questioned her . Her statement was similar to the account she submitted to the ORG .

On DATE the investigators questioned the first applicant , whose statement was similar to the account he submitted to the ORG .

On various dates in DATE the investigators also questioned the applicants’ relatives and neighbours , PERSON , PERSON , Mr PERSON and PERSON , whose statements were similar to those of the applicants . No new information was obtained .

On DATE the investigators examined the crime scene . No evidence was collected .

On DATE the investigation was suspended . The applicants were informed thereof .

On DATE the second applicant complained to ORG that the investigation had been ineffective and requested access to the investigation file .

On DATE the second applicant ’s complaint was partially allowed by ORG . It noted , inter alia , that for DATE , DATE , the proceedings had been dormant and no tangible steps had been taken by the investigators . The court instructed the investigators to provide her with access to the case file .

From the documents submitted , it appears that the investigation is still pending .

The applicant , PERSON , who was born in DATE , lives in GPE , GPE . She is the wife of Mr PERSON ( also spelled PERSON ) , who was born in DATE .

According to the applicant , her husband was an active member of illegal armed groups DATE and then DATE . During the more recent period , the applicant and her CARDINAL children lived in PERSON . In DATE and DATE NORP servicemen regularly visited their dwelling . They searched for firearms and asked the applicant questions concerning her husband ’s whereabouts . Fearing for her family ’s safety , the applicant moved to the “ GPE ” neighbourhood in LOC . In DATE her husband joined them there . On DATE servicemen in APCs took him from his home . He was released DATE .

DATE on DATE a group of armed servicemen in balaclavas broke into the applicant ’s flat in LOC . They pulled a plastic bag over Mr PERSON ’s head and took him to an unknown destination in an ORG .

DATE the servicemen returned to the applicant ’s house . They searched the premises and asked her about her husband ’s involvement in illegal armed groups . During the search they found a list of members of illegal armed groups and a number of identity documents , as well as firearms hidden in the garden .

DATE . The applicant has not seen Mr GPE since DATE . In DATE she moved to GPE .

The Government submitted copies of CARDINAL pages of documents from criminal case file no . DATE opened into the abduction of Mr GPE . The information concerning the criminal proceedings as submitted by both parties may be summarised as follows .

On DATE the GPE prosecutor ’s office forwarded the abduction report lodged by PERSON PERSON ’s father , PERSON to the NORP district department of the interior ( ORG районный отдел внутренних дел ( ORG ) ( hereinafter “ ROVD ” ) .

On DATE investigators questioned Mr PERSON , who stated that at TIME on DATE armed men in camouflage uniforms had arrived in CARDINAL APCs at their house . They had broken in and checked some identity documents . Afterwards they had taken his son outside , put him into one of the APCs and driven off .

On DATE CARDINAL of the applicant ’s neighbours ( their names were illegible on the documents submitted ) stated that on TIME , they had been woken up by the sound of women crying . They had gone outside and had seen their neighbours on the street and several APCs driving off . They had then learnt that PERSON had been abducted .

On DATE the NORP district prosecutor ’s office opened criminal case no . CARDINAL into the abduction and informed the applicant thereof .

On DATE the investigation was suspended . The applicant and her relatives were not informed thereof .

On DATE the PERSON replied to a request by the applicant for information stating , amongst other things :

“ ... in connection with the abduction of PERSON , the NORP district prosecutor ’s office opened criminal case no . CARDINAL ... the police operational search unit opened search file no . DATE and has been taking measures to search for Mr PERSON , whose whereabouts as of DATE have not yet been established [ ... ] ”

DATE . According to the applicant , on DATE she had to leave GPE out of fear for her and her children ’s lives . Since DATE she has resided in GPE .

On DATE the ORG declared Mr PERSON missing .

On DATE Mr ORG asked the investigators to provide him with copies of documents from the investigation file . His request was granted on DATE .

On DATE the ORG declared Mr PERSON dead at the request of the applicant ’s representative .

On DATE the investigation was resumed further to a complaint by the applicant ’s relatives .

On various dates in DATE and then in DATE the investigators questioned several of the applicant ’s relatives and neighbours and examined the crime scene . No new information was obtained .

On DATE the investigation was again suspended . From the documents submitted , it appears to be still pending .

The applicant , PERSON ( also spelled PERSON ) PERSON , was born in DATE and lives in PERSON , GPE . She is the wife of PERSON Ayndi ( also spelled PERSON ) PERSON , who was born in DATE .

At the material time ORG was under curfew . The applicant and her husband resided in a block of flats at CARDINAL FAC in LOC of PERSON .

At TIME on DATE a group of CARDINAL armed servicemen in camouflage uniforms and balaclavas arrived at the flats in CARDINAL grey ORG vehicles and an ORG . They broke into the applicant ’s flat , quickly searched it , dragged Mr PERSON outside , forced him into one of their vehicles and drove off through checkpoint CARDINAL in the direction of the city centre .

The applicant has not seen her husband since his abduction on CARDINAL DATE .

The above account is based on a statement provided by the applicant and copies of documents from the criminal case file .

On DATE the applicant reported her husband ’s abduction to the Staropromyslovskiy ROVD stating , amongst other things , that the abductors had arrived in CARDINAL UAZ minivans and an ORG without registration numbers .

On DATE investigators from the LOC prosecutor ’s office ( “ the prosecutor ’s office ” ) examined the crime scene . No evidence was collected .

On DATE the investigators questioned the applicant and her relatives , Mr PERSON and PERSON , whose statements concerning the incident were similar to the account the applicant submitted to the ORG .

On DATE the prosecutor ’s office opened criminal case no . DATE into the abduction of Mr PERSON .

On DATE the investigators questioned the applicant ’s mother PERSON , whose statement was similar to the account the applicant submitted to ORG .

On DATE the applicant was granted victim status in the criminal case and questioned . Her statement was similar to her earlier statement of CARDINAL DATE . In addition , she stated that she would not be able to identify any of the abductors as their faces had been covered .

On DATE the investigation was suspended for failure to identify the perpetrators . The applicant was not informed thereof .

On DATE LOC declared Mr PERSON missing .

On CARDINAL DATE the investigation was resumed .

On DATE the investigators again questioned the applicant , who reiterated her earlier statements .

On DATE the investigation was suspended again . The applicant was not informed thereof .

On DATE the Leninskiy inter - district investigations department in ORG replied to a request by the applicant for information and provided her with copies of CARDINAL documents from the investigation file .

It appears that on DATE she was again granted victim status in the criminal case at her request .

On DATE the supervising prosecutor criticised the investigators for their failure to take basic steps and ordered that the investigation be resumed . On DATE the proceedings were resumed .

On DATE the investigators again questioned Mr GPE and the applicant , who reiterated their earlier statements . In addition , the applicant stated that DATE prior to the abduction unidentified armed men had robbed her mother - in - law and had even fired several shots at her .

On DATE the investigation was suspended .

On DATE the applicant complained to ORG of Grozny that the investigation of the abduction had been ineffective and asked for the proceedings to be resumed . On DATE the court rejected the applicant ’s complaint as the investigation had been resumed DATE .

On DATE the investigation was suspended again and then resumed on DATE .

NORP The criminal proceedings are still pending .

The Government did not contest the essential facts underlying each application , but submitted that the ORG allegations were based on assumptions as there was no evidence proving beyond reasonable doubt that ORG agents had been involved in the alleged abductions , or that the applicants’ relatives were dead .

The applicants submitted that it had been established “ beyond reasonable doubt ” that the men who had taken their relatives had been ORG agents . In support of that assertion , they referred to evidence contained in their submissions and documents from the criminal investigation files disclosed by the Government . They also submitted that they had each made a prima facie case that their relatives had been abducted by ORG agents , but the essential facts underlying their complaints had not been challenged by the Government . Given the lack of any news about their relatives for a long time and the lifethreatening nature of unacknowledged detention in GPE at the relevant time , they asked the ORG to consider their relatives dead .

A summary of the principles concerning assessment of evidence and establishment of facts in disappearance cases and the life - threatening nature of such incidents may be found in ORG ( cited above , § § DATE ) .

NORP Witness statements collected by the applicant , along with documents from the investigation file furnished by the Government , confirm that her brother , PERSON , was abducted in PERSON on DATE by a group of servicemen during a special operation ( see , for example , paragraphs CARDINAL above ) . In view of all the material in its possession , the ORG finds that the applicant has presented a prima facie case that her brother was abducted by ORG agents in the circumstances set out by her .

The Government did not provide a satisfactory and convincing explanation for the events in question . They have therefore failed to discharge their burden of proof .

Bearing in mind the general principles enumerated above , the ORG finds that PERSON was taken into custody by ORG agents on DATE . Given the lack of any news about him since that date and the lifethreatening nature of such detention ( see paragraph CARDINAL above ) , it also finds that PERSON may be presumed dead following his unacknowledged detention .

Witness statements collected by the applicant , along with documents from the investigation file furnished by the Government , confirm that her husband , PERSON , was abducted in GPE on DATE by ORG servicemen ( see , for example , DATE above ) . In view of all the material in its possession , the ORG finds that the applicant has presented a prima facie case that her husband was abducted by ORG agents in the circumstances set out by her .

Bearing in mind the general principles enumerated above , the ORG finds that Mr PERSON was taken into custody by ORG agents on DATE . Given the lack of any news about him since that date and the lifethreatening nature of such detention ( see paragraph CARDINAL above ) , it also finds that Mr Babuyev may be presumed dead following his unacknowledged detention .

Witness statements collected by the applicants and copies of part of the investigation file submitted by them to the ORG confirm that their relative , PERSON , was abducted from his home in PERSON on DATE during TIME by a group of servicemen during a special operation ( see , for example , paragraphs CARDINAL and CARDINAL above ) . In view of the material in its possession , the ORG finds that the applicants have presented a prima facie case that their relative was abducted by ORG agents in the circumstances set out by them .

Bearing in mind the general principles enumerated above , the ORG finds that Mr PERSON was taken into custody by ORG agents on DATE . Given the lack of any news about him since that date and the life - threatening nature of such detention ( see paragraph CARDINAL above ) , it also finds that Mr PERSON may be presumed dead following his unacknowledged detention .

Witness statements collected by the applicant , along with a small number of documents from the investigation file furnished by the Government , confirm that her husband , PERSON , was abducted in in PERSON on DATE by a group of servicemen ( see , for example , paragraphs CARDINAL and CARDINAL above ) . In view of all the material in its possession , the ORG finds that the applicant has presented a prima facie case that her husband was abducted by ORG agents in the circumstances set out by her .

Bearing in mind the general principles enumerated above , the ORG finds that Mr PERSON was taken into custody by State agents on DATE . Given the lack of any news about him since that date and the lifethreatening nature of such detention ( see paragraph CARDINAL above ) , the ORG also finds that PERSON GPE may be presumed dead following his unacknowledged detention .

NORP Witness statements collected by the applicant , along with documents from the investigation file furnished by the Government , confirm that her husband , PERSON , was abducted in PERSON on DATE by a group of servicemen ( see , for example , paragraphs CARDINAL and CARDINAL above ) . In view of all the material in its possession , the ORG finds that the applicant has presented a prima facie case that her husband was abducted by ORG agents in the circumstances set out by her .

Bearing in mind the general principles enumerated above , the ORG finds that Mr PERSON was taken into custody by ORG agents on DATE . Given the lack of any news about him since that date and the lifethreatening nature of such detention ( see paragraph CARDINAL above ) , it also finds that Mr PERSON may be presumed dead following his unacknowledged detention .

The ORG finds that in all the cases presently before it , the ORG allegations are supported by both the witness statements collected by them and the domestic investigations . In their submissions to the authorities , the applicants maintained that their relatives had been abducted by ORG agents . The investigative authorities accepted as fact the primary versions of events presented by the applicants and took steps to check whether ORG servicemen were involved in the abductions .

In summary , the facts of all the applications contain sufficient evidence to enable the ORG to make findings about the carrying out of security operations and thus about the ORG ’s exclusive control over the detainees ( see , among many other authorities , ORG , cited above , § CARDINAL ) . The ORG ’s arguments stand in contradiction to the evidence reviewed by ORG and are insufficient to discharge them of the burden of proof which has been shifted to them in such cases .

The detention in life - threatening circumstances of Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON , together with the lack of any news about them for DATE , leads the ORG to conclude that they may be presumed dead .