IGNAOUA AND OTHERS v. THE UNITED KINGDOM

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicants , Mr PERSON ( “ the first applicant ” ) , PERSON PERSON ( “ the second applicant ” ) and Mr PERSON ( “ the third applicant ” ) , are NORP nationals , who were born in DATE respectively . They were represented before the ORG by Mr PERSON of ORG , a firm of solicitors based in GPE .

s , may be summarised as follows .

The applicants arrived in GPE on unknown dates . The first and second applicants subsequently claimed asylum on the ground that they had previously been detained and tortured by the NORP authorities and feared being subjected to similar treatment if they returned . The second applicant was granted asylum in DATE .

On DATE , while the first applicant ’s request for asylum was pending , an NORP court issued NORP Arrest Warrant ( “ EAW ” ) in respect of the applicants , under a ORG ( see paragraphs CARDINAL - CARDINAL below ) , seeking their surrender to GPE . They were accused of membership of a criminal organisation for the purposes of terrorism . They were subsequently arrested in the GPE pursuant to the EAW .

NORP By letter dated DATE , the Prosecutor to GPE stated :

“ If the GPE judicial authority agrees to extradite [ Mr PERSON ] to GPE , [ Mr PERSON ] will not be extradited to another state without the consent of GPE . The only purpose of this extradition request is to secure the surrender of [ Mr PERSON ] to GPE to stand trial for the offence alleged against him . I can confirm categorically that his extradition is not sought for the purpose of deporting him to GPE . ”

On DATE an extradition hearing took place at GPE ORG . It was accepted in the proceedings that if the applicants were returned to GPE there would be a real risk of a breach of their LAW , following this ORG ’s ruling in GPE v. GPE [ ORG ] , no . DATE . The question was whether there were substantial grounds to believe that GPE would extradite , expel or deport the applicants to GPE . The judge explained :

“ CARDINAL . I propose to deal very shortly with any further onward extradition request , or an order of expulsion from GPE that might be linked to a sentence of imprisonment following conviction ... [ T]here are recognised routes of appeal that are available to a person subject to an extradition request ( by GPE should there ever be one ) or an expulsion order ( to GPE ) to enable the highest court in GPE to make a determination as to whether or not , if such an order were allowed to proceed , the defendant ’s LAW rights would be prejudiced . That is , there is effective judicial oversight , with guaranteed rights of appeal , available to any defendant who might feel aggrieved by an order for his removal from GPE . ”

The judge considered the provisions of the NORP “ LAW ” ( see paragraphs CARDINAL below ) which governed deportation from GPE at the relevant time . He observed that notwithstanding the apparent inability under that law for a person whose expulsion had been ordered to obtain a stay of execution pending an appeal , expert evidence presented to the court had suggested that it was in practice possible to obtain a stay from ORG . However , he accepted that there was potential for a person to be deported before being able to persuade a court to suspend the process . He accordingly found that LAW failed to provide the necessary guarantees required by LAW . However , he noted that Mr PERSON was not deported prior to this Court ’s hearing in PERSON , cited above , nor had he been deported since . While some evidence from NORP lawyers showed a reluctance to accept that NORP courts were bound to ensure that the rulings they made were in accordance with the LAW , the judge rejected that aspect of their evidence . He observed that the lawyers had “ a low opinion of the competence and integrity of the NORP judiciary ” which he did not share , referring to the expert evidence submitted by the judicial authority which sought the ORG extradition . He therefore concluded :

“ CARDINAL . ( CARDINAL ) Since DATE there will have been many people in the NORP civil service giving anxious consideration to the decision in PERSON v GPE , all trying to devise a solution to the ‘ dilemma’ .

( CARDINAL ) It is highly likely new provisions will shortly be in place , and that would make this whole discussion , based as it is on the NORP law , somewhat academic .

( CARDINAL ) I am not surprised the Minister of ORG has declined to give an undertaking that the NORP law will not be applied to any of these QUANTITY men . There are many reasons why it might not be appropriate to offer such a guarantee . The lack of it does not suggest that , if extradited , the NORP law would be applied to them .

( CARDINAL ) I consider it unlikely , unless and until the circumstances allow it , the Minister of the ORG would make a deportation against any of these CARDINAL men requiring their return to GPE .

( CARDINAL ) ... I am confident , given all the activity these defendants have generated with the authorities in GPE and their situation being now so ‘ high PERSON that they would have no difficulty accessing the NORP courts , should they wish to challenge any deportation order . ”

He found no reason to suppose that any future deportation proceedings would not be in accordance with the LAW and the PERSON judgement . He did not consider that evidence of what had undoubtedly happened in the past was evidence that such an approach would be repeated in future , since PERSON would “ cause the NORP authorities to rethink its approach to this issue . ” The judge therefore held that there were no substantial grounds for believing that the applicants would be expelled from GPE to GPE .

He added that LAW on LAW was based on mutual trust and confidence between ORG Member GPE and that he was confident that the NORP authorities could be relied upon not to act contrary to the Convention .

The applicants appealed to a ORG . They argued that , if returned to GPE , there was a real risk of their onward transmission to GPE , in breach of LAW ORG .

NORP In DATE , while the case was pending before ORG , an expulsion order was made by the NORP authorities against Mr PERSON , ordering that he be expelled to GPE . He was then removed to GPE , despite Rule CARDINAL having been applied by ORG on DATE ( see PERSON v. GPE , no . CARDINAL , DATE ) . The applicants brought the matter to the attention of ORG as evidence of the inadequacy of judicial safeguards in the NORP deportation procedure .

On DATE ORG handed down its judgment in the applicants’ case . Lord PERSON , delivering the judgment of the court , noted first that the applicants accepted that the EAW was a genuine exercise of the power conferred under the relevant Framework Decision with a view to bringing criminal proceedings against the applicants in GPE . It was not a device to achieve deportation to GPE .

Pill LJ examined in some detail a number of reports concerning the procedures in place in GPE , including a DATE report by ORG Human Rights Commissioner and a DATE report by ORG . He considered carefully the submissions of the applicants and those of the judicial authority . He accepted that the DATE assurance by ORG ( see paragraph CARDINAL above ) covered all CARDINAL applicants . For essentially the same reasons as LOC , he did not consider the absence of an assurance that GPE would not seek to deport the applicants as an indication that it did not intend to fulfil its legal obligations .

Pill LJ concluded that a real risk of expulsion to GPE had not been established in the cases . He explained :

“ DATE . ... It is relevant that the extradition to GPE will be effected under LAW ... The NORP authorities are under LAW duties in any event , but the ORG Directive adds an additional dimension . It requires cooperation between judicial authorities on the basis of trust and a high level of confidence ...

CARDINAL ... [ F]or better or worse we have committed ourselves to this system . Under LAW , we can assume that the trust placed in the NORP authorities will be justified . ORG provides a safeguard and a disincentive to the NORP authorities , as with the authorities of any Member ORG , not to act in breach of LAW . LAW [ on ORG ] provides for sanctions against GPE failing to comply with the basic principles of LAW . Bilateral trust also arises . This is bilateral action premised on the existence of a high degree of confidence . Courts in a returning state would be likely to have a real sense of grievance , having regard to the contents of LAW , if a receiving state subsequently ignored its duty under LAW . The NORP government had not hitherto deported in an LAW case a person received under LAW and had not deported in the case of PERSON .

He also noted that when the NORP authorities received a person under LAW , the entire judiciary was likely to be alerted to its duties under LAW , which he said was “ certainly so ” in the LOC cases . He was not prepared to disagree with the District Judge ’s assessment of the witnesses or his rejection of ORG low opinion of the NORP judiciary . He continued :

“ DATE . It is disturbing if the evidence before the court is DATE and the court has to take it at face value DATE that the NORP executive in the case of [ PERSON ] have apparently disregarded an interim direction of the ECtHR . I can not regard that act , or the statement of a representative of ORG which is claimed also to have been made , as destroying the trust and confidence which is to be assumed in the context described . I am not prepared to hold , on the basis of a single post - PERSON case , that the NORP ORG will in the present cases ignore its duties under LAW as confirmed in GPE . ”

On the risk of further deportation by the NORP authorities , he added :

“ CARDINAL . ... The risk on return has to be assessed on present evidence , and there is no risk of deportation while the contemplated criminal proceedings and any resulting custodial sentence are extant . That being so , any risk is , to that extent , remote from the current situation .

CARDINAL The District Judge ’s optimism about NORP legislation has not yet been justified by events in the post - election period . There are , however , clear limits , in my view , to the extent to which a court assessing current risk should speculate as to events in the long term or even medium term future ... Circumstances can change . The remoteness factor ... adds weight to a conclusion that the appellants have not established a real risk of being deported to GPE within the meaning of the authorities . ”

An application for a certificate of a point of law of general public importance was dismissed by ORG on DATE .

On DATE and DATE the applicants made an application to ORG for habeas corpus to reopen their appeals , based on fresh evidence . The fresh evidence in question largely consisted of documents in the proceedings before ORG in respect of Mr PERSON . The applicants contended that the documents revealed an attitude on the part of the NORP authorities which was prepared to deport suspected terrorists irrespective of LAW risks , particularly where diplomatic assurances had been obtained from the receiving ORG .

On DATE the application was refused . Lord Justice PERSON , with whom Lord Justice PERSON agreed , considered that the new evidence did not provided a reliable guide to GPE ’s future conduct ; that there had still been CARDINAL instance of GPE deporting a person in breach of interim measures or LAW since the PERSON judgment ; that there was no evidence of any willingness to deport a person who had been extradited under an EAW so the mutual trust and confidence remained intact ; and that nothing in the fresh evidence undermined the previous finding that the applicants were genuinely wanted for trial in GPE , which made any risk of further deportation remote in any case .

ORG subsequently refused to grant permission to appeal .

Meanwhile , on DATE , the applicants made a request to ORG for interim measures pursuant to Rule CARDINAL of ORG to prevent their extradition to GPE . The request was refused by ORG DATE . The letter to the applicants explained :

“ The ORG found that it would be open to your clients to make an application against GPE , including an application under LAW , if it appeared that they would be surrendered from GPE in breach of their rights under the ORG . ”

ORG was informed of the ORG ’s decision in the following terms :

“ I write to inform you that on DATE the above applicants lodged a request for interim measures under Rule CARDINAL of ORG to prevent their extradition from GPE to GPE . They argued that if extradited , they would be at real risk of onward removal to GPE where they would be subjected to ill - treatment contrary to LAW . They relied on ORG recent ruling in GPE v. GPE [ ORG ] , no . DATE , ECHR DATE ... and further relied on the fact that in the domestic proceedings in their case , both ORG and ORG accepted that LAW of DATE ( ‘ the NORP Law’ ) failed to provide the necessary guarantees that are required by LAW . Finally , they relied on your Government ’s decision to remove Mr PERSON to GPE despite ORG Rule CARDINAL indication in his case .

On DATE the Fourth Section decided to refuse their request . The decision to do so was based on the express understanding that GPE as a ORG would abide by its obligations under LAW , CARDINAL and DATE of the LAW and in particular the obligation to respect the terms of any interim measure which the ORG might indicate in respect of GPE at the request of the applicants . The ORG also expressed its confidence that your Government would comply with their obligations under LAW of DATE ( on the NORP arrest warrant and the surrender procedures between Member GPE ) and in particular their obligation under LAW not to extradite to a third ORG a person who has been surrendered pursuant to a NORP Arrest Warrant without the consent of the competent authority of the Member ORG which surrendered the person . ”

On DATE the applicants were extradited to GPE . On CARDINAL occasions DATE and DATE , the NORP authorities deported individuals to GPE , contrary to Rule CARDINAL indications made by the President of LAW ( see GPE v. GPE , no . CARDINAL/CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , DATE ; and PERSON , no . DATE ) .

On DATE ORG acquitted the applicants of the charges for which they had been extradited . The NORP authorities subsequently issued expulsion order against them . They were taken into immigration detention . The GPE authorities issued decisions to exclude the applicants from returning to GPE and the second applicant ’s refugee status was revoked .

On DATE ORG authorised the expulsion of the applicants .

In DATE the acting President of the Second Section of the ORG decided to apply Rule CARDINAL of ORG and indicated to ORG that the applicants should not be deported to GPE until further notice .

The enforcement of the NORP expulsion orders was suspended pending the outcome of the applications before this ORG .

By a decision of DATE , the second and third applicants were released from immigration detention in DATE . They were instructed to leave GPE within DATE .

The second applicant went to GPE . On DATE he was deported from GPE to GPE . He was taken into immigration detention in GPE .

The third applicant went to GPE . Upon arrival he claimed asylum .

On DATE the Second Section of the ORG lifted the interim measures granted in favour of the second and third applicants since they were no longer at risk of expulsion to GPE .

On DATE the second applicant was released on bail in GPE . His refugee status was subsequently reinstated .

On DATE the GPE lifted the exclusion decision in respect of the third applicant . He returned to GPE .

In DATE the first applicant was released from immigration custody in GPE to await the outcome of a prosecution appeal against his acquittal and a second trial . After obtaining legal advice , he made an asylum claim in GPE . His current situation is not known .

Extradition from GPE is governed by LAW DATE ( “ the DATE LAW ) . The LAW implements the provisions of ORG ( see paragraphs CARDINAL - CARDINAL below ) .

Pursuant to section CARDINAL of the DATE Act the extradition judge must decide , before ordering extradition , whether the person ’s extradition would be compatible with the Convention . If he decides that extradition would not be compatible with the LAW , he must order the person ’s discharge .

Deportation from GPE was at the relevant time governed by LAW ( Law CARDINAL of DATE ) .

Article CARDINAL ) of LAW stated that :

“ ... [ T]he Interior Minister or , if he so delegates , the prefect , may order the expulsion of a foreigner ... where there are well - grounded reasons to believe that his presence in GPE would in some way facilitate terrorist organisations or activity , including international organisations or activity . ”

The order had to be approved by ORG .

An appeal could be lodged against the order to ORG but the appeal did not suspend the enforcement of the deportation order .

On DATE ORG CARDINAL/CARDINAL/JHA on the NORP arrest warrant and the surrender procedures between Member GPE . ORG created a simplified extradition procedure between member GPE of ORG . Member GPE are required to execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of LAW .

Recital CARDINAL of the preamble to LAW provides that no person should be removed , expelled or extradited to a ORG where there is a serious risk that he or she would be subjected to the death penalty , torture or other inhuman or degrading treatment or punishment . Article CARDINAL(CARDINAL ) confirms that ORG does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in LAW .

Under LAW ) of LAW , where a person has been extradited pursuant to an EAW , the receiving ORG may not extradite the person to a third State with without the permission of the extraditing ORG which surrendered the person .


Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

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

The applicant was born in DATE and lives in GPE .

The applicant was suspected of membership of a crime ring organised around one H. , a person widely known to have amassed criminal convictions for serious crimes ; of complicity in extortion ; and of possession of an illegal firearm .

On DATE the applicant was arrested . On DATE he was taken into initial detention on remand ( bewaring ) for DATE by order of an investigating judge of ORG ( rechtbank ) . The order included the following grounds :

“ ( post alia )

Considering in addition that it appears that there is a serious reason of public safety requiring the immediate deprivation of liberty ;

Considering in this connection :

that there is a suspicion of a [ criminal ] act which , according to the law , carries a maximum sentence of imprisonment of DATE or more and that act has caused serious upset to the legal order ( een feit waarop naar de wettelijke omschrijving een gevangenisstraf van twaalf jaren of meer is gesteld en de rechtsorde ernstig door dat feit is geschokt ) ;

that there is a serious likelihood ( dat er ernstig rekening mee moet worden gehouden ) that the suspect will commit a crime ( misdrijf ) by which the health or safety of persons will be endangered , since the framework of the suspicion encompasses the display of aggressive and unrestrained behaviour by the suspect ;

that detention on remand is necessary in reason for discovering the truth otherwise than through statements of the suspect ; ... ”

On DATE the applicant was taken into extended detention on remand ( gevangenhouding ) for DATE by order of ORG following a hearing in camera . This decision stated the following grounds :

“ considering that ORG finds , after examining the case , that the suspicion , indications and grounds which have led to the order for the suspect ’s initial detention on remand still obtain ;

considering that the existence of these grounds is borne out by the conduct , facts and circumstances stated in the order for the suspect ’s initial detention on remand , given on DATE , which ORG adopts as its own ; ... ”

ORG renewed its order for a further term of DATE on DATE . The applicant appealed against this decision ; his appeal was dismissed by ORG ( gerechtshof ) on DATE .

The order for the applicant ’s extended detention on remand was renewed periodically by ORG until its suspension .

On DATE ORG ordered the suspension ( schorsing ) of the applicant ’s detention on remand with effect from TIME DATE . The reason stated was the following :

“ ORG is of the view that the serious reasons and grounds stated in the order for extended detention on remand ( bevel tot gevangenhouding ) still exist and that Article CARDINAL of LAW ( PERSON ) is not yet applicable .

Even so , ORG considers it appropriate , in view of the circumstance that it has DATE ordered the suspension of the trial until DATE , to decide as follows as to the execution of the detention on remand .

The suspension of the trial is directly linked with the state of health of a co - suspect and ORG decision in principle ( uitgangspunt ) to pursue the proceedings against all suspects simultaneously .

That being so , and also in light of the length of the detention on remand until DATE , ORG is led to suspend the detention on remand until DATE on which the trial of the suspect will be pursued . ”

The co - suspect referred to was H. , who needed time to recover from heart surgery which he had undergone in detention before his trial could resume .

The suspension of the applicant ’s detention on remand was made subject to the following conditions :

“ CARDINAL . that the suspect not seek to evade the execution of the detention on remand order if its suspension should be terminated ;

NORP that the suspect , should he be sentenced to a custodial sentence other than [ in lieu of a fine or a community service order ] for the criminal act for which the detention on remand was ordered , not seek to evade its execution ;

that the suspect not perpetrate a new criminal act during the time in which his pre - trial detention shall be suspended ;

that the suspect attend the remainder of his trial ;

that the suspect immediately obey any summons from the police , the prosecution or the court ( politie en justitie ) ;

that the suspect not have any direct or indirect contact with ( any CARDINAL of ) his co - suspects or the witnesses ...

that the suspect hand in his passport and/or his identity card ...

that the suspect shall report in person DATE ( zich tweemaal per week dient te melden ) at times and places indicated to him by the public prosecution service ( openbaar ministerie ) . ”

On DATE the applicant submitted a request for his detention on remand to be lifted altogether ( opheffing van het bevel tot voorlopige hechtenis ) .

On DATE ORG gave a decision in the following terms :

“ This court ’s decision of CARDINAL DATE suspended the suspect ’s pre - trial detention in connection with the special circumstances mentioned in that decision , which did not concern the suspect himself , which entailed the interruption of the trial for a considerable time .

ORG has allowed the interest of the suspect in awaiting the resumption of his trial in freedom to prevail over the prosecution interest in keeping the suspect in detention on remand on the grounds stated in the order for extended detention on remand only because of that special situation and only for as long as that situation might continue . As the suspect ’s trial will resume before long and the said special situation will from then on no longer exist , there will , from then on , be no reason to allow the suspension of the suspect ’s detention on remand to continue .

ORG takes the view that the serious reasons and grounds , with the exception of the ground related to the investigations , still exist and considers that Article DATE § CARDINAL [ of LAW ] is not yet applicable . The mere fact stated by the suspect ’s counsel that since the suspect ’s liberation there has been no large - scale public protest and that the suspect has complied unreservedly ( onverkort ) with the suspension conditions do not mean that there is no longer any ‘ serious upset to the legal ORG within the meaning of Article ORG LAW under CARDINAL or the danger of an offence within the meaning of Article DATE LAW under CARDINAL .

Considering also the nature of the first - mentioned ground DATE briefly , an offence carrying a DATE sentence that has caused serious upset to the legal order DATE , ORG does not consider the arguments submitted sufficient reason to suspend the detention on remand , as is requested in the alternative as a less intrusive way of using this means of coercion ( minder bezwarende wijze van toepassing van dit dwangmiddel ) . ... ”

No appeal was possible against this decision .

The trial resumed on DATE . The applicant , through his counsel , made a request at the hearing for the detention on remand order to be lifted , or in the alternative , for the suspension to be continued . He argued that his release had not caused any public outcry .

According to the official record ( proces - verbaal ) of the hearing , ORG gave a refusal , stated by its president in the following terms :

“ ORG refers to its decision of DATE . At the time , the medical situation of the co - suspect PERSON , ORG desire to consider the cases together , and the fairly long duration of the detention on remand led to the decision to suspend the detention on remand until such time as the trial would resume .

As soon as these reasons cease to apply ORG must consider the situation afresh .

This does not mean that ORG will look back to see how well things have gone and what ripples your release has caused ( CARDINAL rumoer er over uw vrijlating is ontstaan ) , but that it will consider whether the serious reasons and grounds still exist . It takes the view that such is the case .

As regards the alternative request , ORG takes the view that the prosecution interest would not be served in sufficient measure if you could , within the framework of a suspension of your detention on remand , await the outcome of your criminal case in freedom . Your personal interest in awaiting the determination of your case in freedom does not outweigh the prosecution interest . Your detention on remand should therefore continue , given also that there is no question at the present time of applying Article CARDINAL of LAW .

The president stresses that ORG will continue to consider ex officio whether it is necessary for the detention on remand to continue , and whether there may be grounds to order a variant as regards the modalities of its execution .

ORG dismisses both the principal and the alternative requests . ”

The applicant was taken back into detention on remand on DATE .

On DATE the applicant ’s counsel submitted a further request for the lifting or , in the alternative , the suspension of the detention on remand order . This too was refused .

On DATE ORG lifted the applicant ’s detention on remand . The decision was in the following terms :

“ That ORG , sitting in camera , has come to take the view that serious reasons and grounds referred to in the order for extended detention on remand still exist , but that at this point LAW leads ORG to take the appertaining decision . ”

On DATE ORG convicted the applicant and sentenced him to CARDINAL months’ imprisonment .

NORP The applicant appealed . On DATE ORG quashed the first - instance judgment on technical grounds . Convicting the applicant afresh , it sentenced him to CARDINAL months’ imprisonment , DATE of which was suspended .

The applicant lodged an appeal on points of law ( cassatie ) with ORG , which dismissed the appeal on DATE .


CASE OF HELDENBURG v. THE CZECH REPUBLIC

Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicants sent CARDINAL letters to the ORG in total : on DATE , on DATE and DATE , and on CARDINAL and DATE . Each of the letters contained information concerning their claims for just satisfaction and their friendly - settlement negotiations , and specifically the sums that the Government had offered to them in a letter of DATE . In the letter of CARDINAL DATE , the applicants repeated the statements they had made in their letter of DATE and compared the sum offered by the Government with that in the case of PERSON v. GPE ( no . MONEY , DATE ( just satisfaction ) ) . They also transmitted to the ORG the content of the ORG ’s letters on friendly - settlement negotiations held on DATE and DATE and DATE .

By a letter of CARDINAL DATE the applicants , invoking ORG , asked ORG about the method used to calculate the sum offered to them in the friendly settlement . On DATE the applicants requested that ORG review its previous response under that LAW . They attached ORG letter of DATE sent to them in the context of the friendly - settlement negotiations . They once again asked about the method used to calculate the sum offered to them for the friendly settlement .

On DATE the applicants lodged an application to reopen the original proceedings before ORG .


Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

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

The applicant was born in DATE and is serving his prison sentence in LOC . Before his arrest he lived with his partner PERSON . in a privately owned house located in LOC of GPE .

NORP The police received intelligence information that a group of people were detaining a man in a privately owned house in PERSON , and were illegally selling apartments owned by third parties .

On DATE police officers PERSON , T. , and PERSON entered the applicant ’s house and asked whether or not he had any firearms . The applicant showed them a gun and some ammunition which a certain GPE had brought round to his house DATE . The police took the applicant to the police station . The applicant ’s arrest was recorded on video . Before the ORG the applicant stated , without providing any further details , that during and after his arrest police officers PERSON , T. , and PERSON had subjected him to physical and psychological ill - treatment .

According to the ORG ’s version of events , on DATE the applicant voluntarily , in the presence of investigator PERSON . , gave a written statement saying that from DATE to DATE he had kept a certain Mr N. in his house at the request of ORG . and PERSON . In DATE . and PERSON . brought PERSON . to his house and asked to keep them in the basement . The applicant agreed in return for payment . In DATE PERSON and PERSON . died in the basement because of cold . The applicant buried them in his backyard and thoroughly cleaned the basement .

NORP In his first letter to ORG , the applicant stated , without providing further details , that police officers PERSON and PERSON and investigator PERSON . had forced him into making the above self - incriminating statement by means of physical and psychological pressure . In his application form , the applicant stated that he had not written the above statement and did not know who had written it .

On DATE , during reconstruction of events which was conducted by investigator PERSON . and recorded on video , the applicant showed where he had buried PERSON and PERSON . , and the police sent their bodies for forensic examination . The experts established that the victims had died of cold in DATE .

On DATE investigator PERSON . ordered the applicant ’s detention , and instituted criminal proceedings against him on suspicion of having illegally stored a firearm and concealed the deprivation of liberty and death of CARDINAL people . The applicant ’s defence rights were explained to him , and he expressed a wish to have a lawyer .

On DATE investigator PERSON . appointed a lawyer , NORP , under legal aid scheme to act as the applicant ’s defence counsel . Upon being questioned by PERSON . on CARDINAL and DATE in the presence of that lawyer , the applicant confirmed his previous statements . He also said that he had been aware that GPE and PERSON . had been put in his basement in order to prevent them from hindering the illegal sale of their apartments .

On DATE the Dniprovskyy District Court of GPE ordered the applicant ’s detention pending trial . On DATE a medical doctor examined the applicant and found no injuries on his body . The applicant did not raise any complaints of ill - treatment or his health condition .

On DATE investigator PERSON . charged the applicant with murdering PERSON . and ORG

On DATE the applicant was questioned in the presence of lawyer NORP and confirmed his previous statements .

On DATE the applicant had a formal confrontation with Kr . in the presence of NORP The applicant confirmed his previous statements .

On DATE investigator PERSON . appointed another lawyer , PERSON , under legal aid scheme as the applicant ’s defence counsel instead of NORP The latter was no longer able to perform his duties as a defence lawyer because of illness .

On DATE the applicant was questioned in the presence of lawyer PERSON and denied all the statements he had given earlier . He stated that he had given self - incriminating statements previously because he had been in a state of “ shock ” .

On DATE investigator PERSON . instituted criminal proceedings against the applicant for having participated in the fraudulent sale of the apartments belonging to ORG . and ORG

On an unspecified date the applicant complained to PERSON . that during and after his arrest he had been ill - treated by police officers PERSON , T. , and S. It is unclear whether the applicant provided any details about such ill - treatment because a copy of the complaint available to the ORG is unreadable .

On DATE investigator PERSON . questioned PERSON , NORP , and PERSON , who denied that they had put the applicant under any pressure .

On DATE PERSON . refused to institute a criminal investigation into the applicant ’s allegations of ill - treatment and the applicant did not appeal against that decision . A copy of the decision is available to the ORG , but is unreadable . On the same date PERSON . refused the applicant ’s request to have a formal confrontation with his girlfriend , PERSON . DATE , the applicant absconded from the detention facility where he was being held , but was found by the police and brought back to the facility on DATE .

On DATE , the police instituted criminal proceedings against the applicant for absconding .

On an unspecified date the police questioned PERSON . , who worked as a doctor in a hospital in the town of NORP . PERSON . said that ORG had been admitted to the hospital in the DATE . ORG had told PERSON . that he had been the victim of fraud , and that his apartment in GPE had been sold without his knowledge or consent .

On an unspecified date the police questioned Ru . , who said that in DATE he had sold his house to a woman called PERSON . N. had lived in that house and had told Ru . that he had been the victim of fraud .

The applicant asked the investigator if he could have a formal confrontation with a certain PERSON . , but this request was refused .

On DATE the investigator appointed another lawyer , ORG , to act as the applicant ’s defence counsel under legal aid scheme instead of lawyer PERSON The reason for that decision remains unknown . On DATE the pre - trial investigation was completed , and the applicant studied all the material in the criminal file .

The indictment stated that a group of people , including ORG . , had asked the applicant to keep PERSON in his house while ORG ’s apartment had been sold without his knowledge or consent . The applicant had agreed in return for payment , and had kept ORG in his house for DATE . After that , the same group of people had asked the applicant to keep PERSON and PERSON . in his basement in order to prevent them from hindering illegal sale of their apartments . ORG and PERSON . had died of cold in the basement , and the applicant had buried them in his yard . The apartments of ORG and ORG had been sold while they had been kept in the applicant ’s house . The apartment belonging to ORG . had been sold before she had been brought to the applicant ’s basement . According to the indictment , by holding ORG , ORG , and PERSON . in his house , the applicant , acting jointly with others , participated in fraud entailing the illegal sale of the ORG apartments .

On DATE a TV channel transmitted a programme called “ FAC ” . According to the applicant , in that programme an investigator dealing with his criminal case spoke about his arrest and “ persuaded the public ” that the applicant was guilty as charged . Neither a recording of that programme , nor any further information about its contents was made available to the ORG .

On DATE ORG , composed of CARDINAL professional judges and CARDINAL lay judges and acting as the first - instance court in the applicant ’s case , commenced the trial .

On DATE the court appointed PERSON . as the applicant ’s lawyer under legal aid scheme instead of lawyer PERSON grounds for that decision remain unknown .

Before the court , the applicant stated that when he had been detained by the police “ his head had not been working ” because he had been drunk . After the arrest , he had drunk some vodka given to him by the police , and that was why he did not remember what he had said or done from CARDINAL to DATE . He “ was not sure ” that he had written the self - incriminating statement on DATE . Investigator PERSON . had promised to charge him with only the offence of concealment if he admitted that he had kept PERSON and PERSON . in his basement . Actually , PERSON , PERSON . , and ORG had voluntarily stayed in his house and none of them had been forcefully held in the basement . In DATE PERSON . and PERSON had drunk too much vodka , had fallen asleep in CARDINAL of the rooms of his house , and had died of cold . He did not know that the GPE apartments had been sold without their consent . He had been afraid of the police and for that reason he had not reported the deaths of GPE and PERSON . and had buried them in his yard . After his arrest the police officers had not beaten him .

The court questioned investigator PERSON . in the applicant ’s presence and the latter asked him questions . PERSON . stated that the applicant had not been drunk on DATE of his arrest and the police had not given him any alcohol from DATE . PERSON . denied that he had subjected the applicant to any pressure or promised to charge him with only the offence of concealment .

The court questioned experts who had examined the bodies of GPE and PERSON . and the applicant ’s lawyer asked them questions . The experts stated that they could not exclude the possibility that PERSON and PERSON . had died of cold while they had been asleep in one of the rooms of the applicant ’s house . They said that it was also possible that they had died in the basement .

On DATE Ro . was questioned by the court in the applicant ’s presence and stated that he had seen ORG , still alive , in the applicant ’s basement , and had heard how PERSON had asked the applicant to release him . Later , PERSON . had seen PERSON ’s dead body in the applicant ’s basement . Ro . had met PERSON in the applicant ’s house on several occasions , and ORG had told him that a group of people intended to “ sell ” him , and were keeping him in the applicant ’s house . The applicant asked PERSON . questions during the hearing and received answers .

Upon being questioned by the court , ORG stated that in DATE certain “ PERSON ” and “ Volodya ” had taken some of his documents , had brought him to the applicant ’s house and had left him there until DATE . The applicant had not allowed him to leave the house and had told ORG that he had had a gun . While ORG had been staying in the applicant ’s house he had observed the applicant , PERSON , PERSON , and PERSON . , and had concluded that they had been acting as an organised group and had intended to sell his apartment without his consent . In DATE PERSON had moved PERSON to the house which she had bought from Ru . In DATE PERSON and PERSON had placed ORG in a hospital in the town of NORP . From there , ORG had called his relatives in GPE and had learned that his apartment in GPE had been sold . He had then returned to GPE and had complained to the police . When ORG had returned to the building where his apartment was located , the neighbours had told him that several people had been moving his furniture out of the apartment . They had described CARDINAL of those people and ORG had understood that it had been the applicant . The applicant was present during ORG ’s questioning by the court and asked him questions .

On DATE the court questioned the applicant ’s girlfriend , PERSON . , in the applicant ’s presence . She stated that ORG had been living in the applicant ’s house for DATE because he had been “ having a rest ” there . She further stated that a man and a woman had been locked in the basement of the applicant ’s house against their will . The people who had brought ORG to the applicant ’s house had instructed PERSON . not to allow him to leave the house and not to talk to him about the apartment . She had been told that ORG ’s apartment was being sold in accordance with his wishes , but she had understood that , in fact , he had not known that the apartment was being sold . Once , the applicant had brought various pieces of furniture to the house and had explained PERSON . that the furniture belonged to PERSON . had visited the applicant and had brought him food and money for feeding ORG , PERSON . , and ORG

On DATE the applicant asked the court to recall PERSON . as witness so that he could question her again . That request was granted , however , PERSON . did not appear before the court because the police could not find her at her permanent place of residence .

Kr . stated before the court that he had brought ORG , a man and a woman to the applicant ’s house , where they had voluntarily stayed . In the DATE the applicant had informed ORG . that the man and the woman had died in CARDINAL of the rooms of his house and he had moved their bodies to the basement . Kr . had helped the applicant to carry CARDINAL dead bodies from the basement to the yard and to bury them .

The applicant asked the court if he could call and question Pl . and Ru . , because , according to him , their statements contradicted those of PERSON The request to call PERSON . was granted but PERSON . refused to appear before the court stating that he was too busy with his work in the NORP hospital . The request to call and question Ru . was not granted by the court . The applicant requested ( unsuccessfully ) that the court order a forensic examination of his basement , such an examination being aimed at establishing whether or not PERSON and PERSON . had indeed spent DATE there .

On DATE ORG convicted the applicant of having forcefully held ORG , ORG , and PERSON . in his house , an action which led to the deaths of ORG and PERSON . The court also found the applicant guilty of absconding from detention facility , illegal storage of firearms and participating in the fraudulent sale of the apartments belonging to ORG and ORG The applicant was sentenced to DATE of imprisonment . On the same date the lawyer PERSON . stopped representing the applicant for unknown reasons . In his observations submitted in reply to those of the Government , the applicant stated that he had unsuccessfully lodged requests for the appointment of a lawyer to represent him before ORG . The case file does not contain copies of any such requests .

On DATE the applicant appealed against his convictions . He stated that the trial had not been objective or fair , and that the first - instance court had misinterpreted the facts of the case , and had refused to call witnesses proposed by him . Ru . and PERSON . had not been questioned at a court hearing , although their statements contradicted those of ORG , while the statements of PERSON . and PERSON . contained contradictory and false information . His request for examination of his basement had also been refused .

On DATE ORG upheld the applicant ’s convictions and sentence , having found no irregularities in the first - instance court ’s decision .

On DATE the applicant sent his first letter to ORG . On DATE he submitted a duly signed and completed application form . On DATE and CARDINAL DATE the ORG asked the applicant to provide a copy of his cassation appeal , and copies of his complaints concerning the alleged ill - treatment by the police . The applicant asked ORG to send those documents to him , but on DATE that request was refused on the ground that the law did not empower the applicant to obtain copies of case documents after the conclusion of criminal proceedings .

On DATE ORG sent the applicant the copies which he had requested ( see paragraph CARDINAL above ) .

In DATE the applicant requested the same court to send him various materials from his case file , in particular , all the courts’ decisions , reports of medical experts and copies of all the statements and requests which the applicant had made during the criminal proceedings . The applicant stated , without elaborating further , that he needed those documents to “ substantiate his complaints ” before the ORG . On DATE ORG refused the applicant ’s request on the same grounds as on DATE .

Before the ORG the applicant stated that the services provided to him by his lawyers had been of low quality . They were not interested in his case because he did not have any money to pay them .

According to the applicant , the conditions of his detention at the pre - trial detention facility ( ORG ) in which he was detained for CARDINAL periods DATE and DATE were inhuman and degrading .


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6-1 - Criminal charge;Fair hearing)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

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

On DATE , at TIME , the corpse of PERSON . , the applicant ’s wife , from whom he was separated , was discovered with multiple stab wounds .

Later on CARDINAL DATE , at TIME , the police apprehended and questioned the applicant . His questioning was documented as that of a witness . The applicant confessed to the murder of PERSON .

The applicant described the circumstances in which that confession was given as follows . He had been taken to FAC , where the police had threatened him with a view to extracting a confession . As the applicant had refused to confess , they had handcuffed his hands behind his back , pulled a black cap over his head , covering his eyes , and had taken him somewhere downstairs . The applicant had been made to sit on a chair and his feet had been tied to the chair legs . The applicant had felt something touching his head behind the ears and something being pressed against his temples , and as his body started to shake and jerk realised that electric shocks were being administered to him . This had been repeated several times . The applicant had fallen off the chair . Thereafter a police officer had unzipped the applicant ’s trousers and attached electric wires to his genitals . After several electric shocks had been administered to his genitals , the applicant had agreed to confess to the incriminated murder . After saying that he could not remember certain details , more electric shocks had been administered to him . CARDINAL of the police officers involved in the ill - treatment had complained to the applicant that the latter had ruined his birthday celebration and had expressed his determination to obtain a confession from him .

According to the ORG ’s account of the events , the applicant had not suffered any ill - treatment and had confessed to the murder of his own free will .

On TIME “ voluntary surrender to the police ” was documented , and he was questioned again , this time as a suspect . He signed a report confirming that his right to legal assistance had been explained to him . As noted in the questioning report , at first the applicant had expressed the wish to be represented by a lawyer , but had later decided to waive his right to legal assistance . He stated during the questioning that his waiver had not resulted from any ill - treatment .

On DATE an expert from the ORG examined the applicant on the investigator ’s instruction with a view to establishing whether he had any injuries , if so , what their location and nature were , and finally whether those injuries could have been caused by a struggle with the victim .

With effect from CARDINAL DATE , the applicant was represented by lawyer PERSON , who had been contracted by his sister . He was questioned as a suspect in the presence of his lawyer and maintained his confession . He further maintained it during the reconstruction of the crime conducted on DATE with the participation of his lawyer .

On DATE the expert who had examined the applicant on CARDINAL DATE completed the examination report . It documented a bruise on the applicant ’s left shoulder blade , a bruise on the left side of his torso , a bruise beneath the right shoulder blade , a bruise on the left shoulder and another bruise in the upper part of the left forearm , a bruise on the left wrist , a bruise on the back of the right hand and on the right wrist , and an abrasion and a bruise on the left ear . The injuries in question were assessed as having originated DATE prior to the examination from blows inflicted by blunt objects with a limited surface , and by falling against a blunt surface . They were assessed as insignificant . In addition , the expert reported CARDINAL abrasions behind the applicant ’s right ear , which could have originated from blunt hard objects with a limited surface and a slightly sharp edge ( such as nails ) . The age of these sores was assessed DATE prior to the examination . Some older bruises ( DATE ) were also discovered .

On DATE the applicant was again questioned in the presence of his lawyer . He maintained his confession . As regards his injuries , he explained that he had sustained them while working on a construction site and during his fight with PERSON . The applicant stated that the police had not ill - treated him .

On DATE the ORG remanded the applicant in custody pending trial . During the hearing he repeated his confession and did not lodge any complaints .

Still on DATE , CARDINAL DATE , the applicant was examined by a panel of doctors in GPE . They found him to be in good health .

With effect from CARDINAL DATE the applicant was represented by lawyer T. instead of lawyer PERSON immediately retracted his confession and complained of his ill - treatment to the GPE town prosecutor ’s office . The applicant submitted that he had incriminated himself as a result of coercion and that he had not committed the crime in question . He alleged that he had sustained electric shocks at the hands of the police and stated that no other ill - treatment had been used on him . As to his bruises , the applicant noted that they could have been caused by his falling to the floor whilst tied to a chair . He further explained that even when represented by lawyer PERSON , he had been afraid to tell the truth and had repeated his confession as the lawyer had recommended .

On DATE the applicant was questioned in the presence of his lawyer T. While maintaining the complaint concerning his ill - treatment , he submitted that his ear had been injured earlier , prior to his encounter with the police .

On DATE an additional forensic medical examination report was delivered in respect of the applicant . The question before the expert was whether the applicant had any injuries demonstrating that electric shocks had been administered to him on CARDINAL DATE . According to the report , the applicant had CARDINAL superficial wounds to his genitals , which had been inflicted DATE before the examination . The expert found it impossible to establish whether those wounds had originated from electric shocks . However , he stated that it was equally impossible to exclude that possibility .

On DATE the prosecutor questioned the forensic medical expert who had examined the applicant on DATE and DATE ( see paragraphs CARDINAL , CARDINAL and DATE above ) . She submitted , in particular , that the bruises discovered on his wrists on DATE could have been caused by handcuffs . The expert also noted that the applicant had not complained before DATE that electric shocks had been administered to him . It was not possible to state with precision when the wounds on his genitals could have been inflicted . Their healing time could vary significantly depending on individual characteristics . Overall , the expert considered it improbable that the applicant might have sustained those injuries on CARDINAL DATE and in the circumstances described by him .

On DATE the prosecutor also questioned the dermatologist who had participated in the examination of the applicant on CARDINAL DATE ( see paragraph CARDINAL above ) . The doctor stated that she had examined the applicant ’s genitals and that no wounds or other signs of ill - treatment had been discovered . She also noted that the applicant had not raised any complaints .

During the period between DATE and DATE the prosecution authorities refused on CARDINAL occasions to institute criminal proceedings against the police officers involved in the alleged ill - treatment of the applicant . CARDINAL of those rulings were quashed for the incompleteness and superficiality of the investigation . As to the sixth ruling , of DATE , it is not clear whether it was eventually quashed . The report of CARDINAL DATE was mentioned in CARDINAL ruling , that of DATE . The prosecutor , however , concluded that it could not be regarded as sufficient evidence that electric shocks had been administered to the applicant .

On DATE the ORG found the applicant guilty of the premeditated murder of PERSON . and sentenced him to thirteen years’ imprisonment . It relied , in particular , on the applicant ’s “ surrender to the police ” and subsequent self - incriminating statements . As to his allegation of ill - treatment by the police , it was dismissed as unsubstantiated .

NORP The applicant appealed . He submitted that he had incriminated himself under duress and pointed out certain discrepancies in the evidence .

On DATE ORG ( “ the NORP Regional Court ” ) upheld the first - instance court ’s judgment .

The applicant lodged an appeal on points of law , in which he maintained the arguments advanced earlier in his appeal .

On DATE ORG quashed the ruling of DATE and remitted the case for fresh examination by the appellate court . It stated that ORG had not sufficiently addressed the applicant ’s arguments . ORG also criticised the lower courts for formalistic examination of the applicant ’s allegations of ill - treatment . It stated that no evaluation had been made of the medical evidence in the case file , according to which it could not be ruled out that his injuries had been sustained in the circumstances as described by him .

On DATE the ORG quashed the judgment of DATE and remitted the case to ORG for additional investigation . It referred to the issues pointed out by ORG .

On DATE the ORG pronounced a new verdict , the operative part of which was identical to that of DATE . As before , the court relied on the applicant ’s initial confessions , including that of CARDINAL DATE , which was documented as his “ voluntary surrender to the police ” . The court dismissed all the defence arguments , considering them to be nothing more than the applicant ’s attempts to avoid criminal liability . As to his motives for the murder , the court considered them to have been his jealousy and his wish to reunite with PERSON . Allegations of aggressive behaviour towards the victim in the past had been confirmed by several witnesses . Lastly , the applicant ’s allegation about having suffered electric shocks was rejected as unsubstantiated . The court noted in that regard that the applicant had made his confessions in the presence of his lawyer PERSON

The applicant submitted an appeal , and later an appeal on points of law , reiterating his earlier argumentation .

ORG and ORG upheld the judgment of DATE on CARDINAL DATE and DATE respectively .


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE . He is the brother of the late GPE , also a NORP national , who was born in DATE and applied for asylum in GPE in DATE .

On DATE , ORG ( Straflandesgericht ) convicted GPE of drug trafficking and sentenced him to CARDINAL months’ imprisonment . PERSON began serving his sentence at FAC ( GPE ) . On DATE he was transferred to FAC .

On DATE ORG ) dismissed PERSON ’s asylum application and ordered his expulsion to the GPE . An appeal lodged by PERSON was dismissed by ORG ( Bundesasylamt ) on DATE . He did not appeal against this decision and it became legally binding on DATE .

On DATE the Linz ORG issued an order for GPE to be placed in detention with a view to his expulsion .

On DATE PERSON was conditionally released from prison and directly transferred to the GPE police detention centre ( Polizeianhaltezentrum – hereinafter “ the detention centre ” ) .

Upon his admission to the detention centre , GPE was examined by a police doctor ( Polizeiarzt ) , who noted that GPE was in a good general state and was fit for detention . His weight was recorded at QUANTITY and his height at QUANTITY . Communication between the authorities and GPE took place in LANGUAGE .

On DATE the police doctor , while conducting a routine examination which all detainees have to undergo at DATE intervals , again noted that GPE ’s state of health was good and recorded his weight at QUANTITY .

On DATE GPE went on hunger strike . On DATE he informed the authorities thereof . ORG Austria ( ORG ) , a non - governmental organisation ( NGO ) who had already been counselling him since DATE of his admission to the detention centre , came to talk to him . On DATE PERSON was subject to an initial hunger - strike examination ( LOC ) . PERSON was handed an information pamphlet on hunger strikes ( in LANGUAGE ) and was also orally informed by the public medical officer of the possible consequences of a hunger strike . A medical hunger - strike protocol ( PERSON ) was filled out , in which his state of health was described as follows :

“ Musculature in a good , well - trained state , pronounced muscles of the upper arm , CARDINAL - pack like someone who practices athletic sports , appears vital , overall . ”

On the hunger - strike protocol it was noted that at the outset of his hunger strike , GPE had weighed CARDINAL kg . On the basis of this , GPE ’s “ critical weight ” was calculated at QUANTITY ( see paragraph CARDINAL below ) . Under the heading “ reasons given for hunger strike ” , it was noted that GPE “ absolutely wanted to be transferred back to cell no . CARDINAL ” . He had been placed in a different cell because he and his cellmates had allegedly tried to escape from cell no . CARDINAL .

Daily health checks of GPE were subsequently carried out , during which his weight was checked , his blood pressure was taken and his oxygen saturation level was measured . Until DATE , no anomalies were detected .

On DATE the public medical officer noted that GPE ’s tongue was slightly dry , and on DATE that his lips were “ barky ” ( borkig ) . Further , there were occasional comments on the hunger - strike form to the effect that GPE resisted examination and was “ malingering ” ( simuliert ) – for example , he had “ pretended to fall ” , “ refused to be examined ” , “ needed to be carried by other detainees ” , and “ tilted over from [ his ] chair in an ostentatious manner ” .

After examining GPE during TIME of DATE , PERSON , the police doctor in charge , noted the following :

“ Pretends to be weak , has to be physically supported by CARDINAL detainees – therefore weight check not possible . Dry tongue , barky lips . I request a medical assessment by a specialist . Possibly blood test , ionogram . ”

On DATE at TIME , GPE was taken to ORG ) for examination and an assessment of whether he was fit enough for further detention . Because GPE resisted the examination and kicked out at a nurse , his hands and feet had to be shackled by the police officers who had accompanied him to the hospital . According to a report drawn up by the treating doctor on DATE , it was “ not possible to assess the intake of liquids ” , “ communication [ was ] difficult ” because GPE did not speak LANGUAGE , he had “ dry lips ” and had his eyes “ constantly closed ” , but “ walking [ was ] possible if [ he was ] supported ” . The hospital further noted that if his general condition worsened , he would have to be force - fed and taken to a psychiatric ward , because he “ lashed out from time to time ” . Taking his blood for a blood test had been difficult and risky ; nevertheless , with the support of the CARDINAL police officers , who secured GPE in a chair in the examination room , the doctor nonetheless managed to take a small amount of blood . After consulting the senior doctor , the treating doctor formally confirmed GPE ’s fitness for detention and noted the police doctor ’s telephone number in order to contact him after obtaining the results of the blood test .

PERSON was subsequently taken back to the detention centre and at TIME was placed alone in a security cell ( ORG ) because of his behaviour at the hospital . His shackles were removed . The security cell did not contain a water outlet , but PERSON could request a water bottle at any time . A police officer checked on GPE TIME . At TIME , GPE , who was lying on the bed , reacted to the police officer ’s presence by lifting his head . When the officer next checked , at TIME , he was not breathing anymore and had no pulse . At TIME he was declared dead by an emergency doctor who had been immediately called to the scene . The presumed time of death was TIME His weight was recorded at QUANTITY . At TIME the blood test results from the hospital examination ( see paragraph CARDINAL above ) were produced . They indicated that GPE had been dehydrated and that he should have been hydrated intravenously and placed in intensive care .

In a report of CARDINAL DATE the doctor from the hospital noted that GPE had been uncooperative during his examination . It had been virtually impossible to take a blood sample as the patient had resisted strongly . At that time nothing had indicated that GPE ’s physical condition could become life - threatening . In a statement given on DATE the doctor described PERSON as not having been weak at all , rather , he had been physically strong and had steadily resisted treatment with all his might ( nach ORG ) , using the whole of his body and kicking out with his legs . After examination of his tongue , pulse , respiration , heartbeat and skin , he had observed GPE ’s dry lips , but had seen none of the other usual signs of dehydration or other abnormalities . He further stated that even as an experienced emergency unit doctor , a rapid and fatal development of GPE ’s situation had not at all been foreseeable by him .

On DATE , the day of GPE ’s death , the PERSON public prosecutor ’s office ( DATE hereinafter “ the public prosecutor ” ) instituted a criminal investigation against “ unknown offenders ” and requested ORG ( PERSON ) to conduct a judicial investigation . The investigating judge ordered that an autopsy be conducted by a sworn and judicially certified expert ( beeideter und gerichtlich zertifizierter PERSON ) ; the autopsy was conducted on DATE . On DATE , the investigating judge , in response to a request made by the public prosecutor , delivered a decision ordering the seizure of the blood samples taken from GPE , together with the pertinent examination report .

On DATE ORG submitted a detailed report on the circumstances of GPE ’s death .

On DATE the public prosecutor requested ORG at ORG ( PERSON für interne ORG für GPE – hereinafter the “ ORG ” ) for it to carry out an investigation . The request included that interviews be conducted with : the CARDINAL police officers who had accompanied GPE to the hospital on DATE of his death ; the police doctor who had examined GPE on DATE ; the doctor at ORG who had examined GPE ; the police officers who had been checking on GPE when he was placed in the security cell ; and GPE ’s cellmate .

On DATE the public prosecutor added to the case file a note regarding a telephone conversation between him and PERSON , the expert who had conducted the autopsy , regarding the preliminary findings of that autopsy .

The ORG subsequently conducted an investigation at the detention centre ’s medical service , procured documents from the detention centre , and produced written records of the requested interviews ( see paragraph CARDINAL above ) . The ORG ’s report was submitted to the public prosecutor on DATE .

On DATE the investigating judge complied with a request lodged by the public prosecutor for the inclusion in the case file of the results of the investigation up until that date , as well as for GPE ’s medical history to be obtained from the detention centre , and for these documents to be transmitted to the expert PERSON It was further decided that the scale used to weigh GPE at the detention centre be seized and sent for technical examination .

On DATE the ORG submitted a report containing the results of the supplementary investigation .

On DATE , after being supplied with all pertinent documents by the ORG , ORG ( Menschenrechtsbeirat – hereinafter “ the ORG ” DATE an independent monitoring body established in DATE at ORG ) issued a report on GPE ’s death . In that report , ORG considered several points to be problematic : that GPE , after his visit to ORG on DATE , had been further monitored only by police officers , rather than by medical professionals ; that no interpreter had been present during the said hospital visit ; that a blood sample had been taken from GPE against his will ; and that the calculation of GPE ’s critical weight had been questionable . The issues of GPE ’s possible dehydration and carrying sickle cell disease had not been addressed in the report , as it had been drawn up before the delivery of the final autopsy report by PERSON ( see paragraph CARDINAL below ) .

On DATE the applicant , who was represented by counsel , joined the criminal proceedings as a private party .

By an order of DATE the investigating judge urged the expert to submit his report .

On DATE , the forensic expert who had conducted the autopsy , submitted his final autopsy report ( dated DATE ) , as well as his expert report on GPE ’s death , to ORG . He stated in the autopsy report that GPE ’s body had not shown signs of “ significantly acute malnutrition ” , nor had there been signs of “ classic dehydration ” .

In the more detailed expert report , PERSON stated that GPE ’s body had not shown signs of any injuries ; therefore , death caused by the use of force could be excluded . PERSON had been slim , but had not appeared malnourished . His body had weighed QUANTITY ; his height had been QUANTITY . No typical external signs of dehydration had been visible , except for the lips appearing to be slightly dry . The results of the internal investigation had recorded a thickening of the blood , which indicated a possible alternation to the blood while GPE had still been alive caused by a lack of hydration . PERSON noted that a hunger strike alone could not lead to a thickening of the blood , as long as enough fluids were consumed . As concerns the hunger strike , PERSON stated that it was likely that GPE had not eaten solid food for DATE , but that it was unlikely that he had engaged in a long - term total hunger strike as the large intestine had still been filled with an abundance of stool along its entire length .

PERSON further stated that neither GPE ’s external appearance nor the medical reports produced until DATE had indicated a lifethreatening situation , although there had been a significant reduction in his weight . Rather , it was more likely that a shift in the electrolyte system had commenced over a period of several days , as indicated by the results of the blood test conducted by ORG on DATE . A post - mortem examination of GPE ’s blood ( conducted in the course of the autopsy ) had shown that he had been a carrier of sickle cell trait ( PERSON ) . PERSON explained that sickle cell disease ( PERSON ) was an inherited red blood cell disorder ; while red blood cells ( containing normal haemoglobin ) were disc - shaped , sickle haemoglobin could form stiff rods within the cell , changing it into a sickle shape . PERSON added that the disease was rare among the white population , occurring mostly among black people . Unlike in the case of people suffering from sickle cell disease , in GPE ’s blood the trait had been present in the heterozygous form , which is why the disease had remained undetected during his lifetime . In cases like GPE ’s , symptoms of sickle cell disease only manifested themselves if there were further damaging external factors , such as dehydration or a lack of oxygen .

PERSON concluded that the cause of GPE ’s death had been dehydration , combined with the fact that he had been a carrier of sickle cell trait , which had caused a shift in the electrolyte system and had ultimately caused his heart to stop beating . Neither the authorities nor GPE himself had been aware that he had been a carrier of sickle cell trait . PERSON stated that GPE ’s death could only have been prevented if he had been tested earlier for sickle cell trait , or if he had been aware that he was a carrier thereof . However , the hunger - strike protocol had not indicated any necessity for a blood test in that respect . The test results from the hospital on DATE of GPE ’s death would have given reason for further tests . However , the results had only been produced after GPE ’s death .

On DATE the public prosecutor made a note in the criminal file ( PERSON ) about a conversation with PERSON The doctor had expressed the opinion that with hindsight PERSON ’s extraordinarily aggressive behaviour at the hospital on DATE of his death had resembled a delirious state caused by advanced dehydration and the consequent disintegration of his blood cells .

On DATE the public prosecutor decided to discontinue the criminal investigation into the death of GPE , as no sufficient evidence could be found to warrant criminal proceedings . The applicant was informed that he had the right to ask ORG ( Ratskammer ) of ORG to conduct a preliminary investigation . However , he was also informed that he would have to bear the full costs of the criminal proceedings should the Council Chamber grant his request but the proceedings did not result in a criminal conviction . This decision was served on the applicant ’s counsel on DATE . The applicant did not request that a preliminary investigation be instituted .

On DATE the applicant submitted the decision of CARDINAL DATE issued by ORG ( PERSON DATE hereinafter “ the ORG ” ) ( see paragraph CARDINAL below ) to the public prosecutor and requested him to investigate further . On DATE the public prosecutor replied that the documents submitted had already been made available to him , but that they could not change his assessment of the procedural results obtained so far , since every aspect of the legal question to be answered had already been clarified by PERSON autopsy report and his comprehensive expert report .

On DATE the applicant requested the ORG to review the lawfulness of GPE ’s detention ( LOC ) and at the same time lodged a complaint about the conditions of his detention ( Maßnahmenbeschwerde ) . He submitted in particular that GPE should not have continued to be kept in detention because he had no longer been fit to be detained on account of his hunger strike . As regards the conditions of GPE ’s detention , he submitted that the medical treatment of GPE had not been in conformity with section CARDINAL ) of the Detention Ordinance ( Anhalteordnung – see paragraph CARDINAL below ) . He furthermore claimed that his brother had been placed in a security cell , without access to water , on DATE of his death , in contravention of section CARDINAL(CARDINAL ) of the Detention Ordinance .

On DATE the competent member of the ORG held a hearing during which he examined as witnesses the applicant , a cellmate of GPE , CARDINAL of the police doctors who had examined GPE during his hunger strike , and the police officers who had been in charge of examining detainees on DATE of GPE ’s death .

GPE ’s former cellmate , PERSON , stated that they had gone on hunger strike together to protest the duration of their detention , and that they had not been treated correctly by the police officers ; however , he did not specify how that treatment had not been correct . He said that he did not remember the exact day on which they had begun their hunger strike , but that they had not eaten or drunk anything at all for DATE . PERSON stated that he had had the impression that GPE had been “ terribly weak ” during DATE before his death .

According to the witness statements by employees of ORG GPE who had visited GPE on several occasions , PERSON had not raised any allegations of ill - treatment during their visits . In fact , with the exception of his former cellmate , all other witnesses who had been in contact with PERSON until his death had also stated during the ORG hearing that he had not appeared to be ill or weak , but that on the contrary , even on DATE of his death he had seemed athletic and strong ; which had been corroborated by photographs taken of his dead body and its description by PERSON in the autopsy report ( see paragraph CARDINAL above ) .

One of the police doctors , PERSON , gave evidence regarding , inter alia , the reason why the calculation of the critical weight of a detainee on hunger strike was based on his or her weight at the outset of the hunger strike , and not the weight recorded upon admission to the detention centre . He stated that detainees usually lost weight slightly during their detention , but that it was also possible for them to gain weight . He acknowledged that he had not even checked PERSON ’s initial weight , as the QUANTITY recorded on DATE after GPE had announced his hunger strike had in principle amounted to a normal weight , given his height . Dr PERSON furthermore stated that on DATE PERSON had walked into the examination room without support . DATE , GPE had showed signs of dehydration and had come to the examination room supported by CARDINAL police officers . PERSON stated that he had accordingly ordered him to be examined at the hospital .

PERSON , the police officer who had accompanied GPE to and from the hospital on DATE of his death , stated that the reason for GPE ’s placement in solitary confinement had been DATE following GPE ’s behaviour at the hospital – he and the other officer in charge had feared that GPE might harm himself or others . PERSON confirmed that there had been no water outlet in the security cell , but that GPE could have requested a water bottle at any time by ringing a bell .

B. , the police officer who had been in charge of checking on GPE while he was being held in the security cell , stated that he had received an order to do so every TIME . During the checks , he had had to make sure that the detainee reacted when spoken to . When PERSON had checked on GPE at TIME , the latter had moved his head . At DATE at TIME , he had showed no reaction and had subsequently been pronounced dead by the emergency doctor , who had immediately been called to the scene .

During the ORG hearing on DATE the applicant presented an undated and unsigned CARDINAL - page statement by PERSON ORG , whom he had engaged himself and who was a general practitioner in PERSON with a focus on nutritional medicine . Dr PERSON , who had not examined GPE ’s body , had based his report on the autopsy report and expert report issued by PERSON , the report of the ORG ( see paragraph CARDINAL above ) and the report by ORG , and had come to the following opinion . On DATE , the day on which GPE had been taken into detention with a view to his expulsion , he had weighed QUANTITY . On DATE , DATE on which GPE had announced that he was on hunger strike , he had had a body weight of QUANTITY . The police doctor had made a mistake in taking the latter as the normal weight of GPE for the purposes of calculating his critical body weight . The doctor had not taken into account the fact that PERSON had already lost QUANTITY CARDINAL September CARDINAL , meaning that GPE must have already started his hunger strike before he had officially announced it . From DATE until DATE of his death on DATE , GPE had lost a further QUANTITY in body weight . However , the doctor had used GPE ’s weight on DATE ( namely QUANTITY ) as a starting point , and had established his critical weight as QUANTITY , which in PERSON view was incorrect . The police doctor should have based his calculations on how much PERSON had weighed when he had arrived at the detention centre . If he had , the correct critical weight would have been determined at QUANTITY , PERCENT . Instead , GPE at the time of his death had already lost PERCENT of his weight in fluids . For an adult person a loss of even PERCENT in fluids constituted a life - threatening situation . PERSON assumed that GPE had died of dehydration resulting from the erroneous calculation of his body weight . He did not deal with the question of how far the sickle cell trait present in GPE ’s blood had played a role in his death , nor did he provide any scientific source for his calculations . Dr PERSON ’s opinion was later not supported by any of the official experts .

The applicant asked the ORG that the second police doctor in charge at the detention centre on DATE of GPE ’s death be questioned , and that another expert report be obtained in order to refute the expert report issued by PERSON ( see paragraphs CARDINAL above ) . The ORG refused these requests .

The ORG , at the end of the hearing of DATE , ruled that GPE ’s detention pending his expulsion had been unlawful and that the conditions of detention during his hunger strike had violated GPE ’s right under LAW to protection against ill - treatment . Concerning the cause of GPE ’s death , the ORG reiterated the findings of the autopsy report and the expert report attached thereto ( see paragraphs CARDINAL above ) . The ORG argued that the ORG authorities had not fulfilled their role of guarantor of the applicant ’s rights under LAW and CARDINAL of the Convention . It found that given the frequency of sickle cell disease among people from sub - Saharan Africa , the ORG was under an obligation to offer a test for sickle cell disease to all detainees from that specific geographic area , and in particular to those on hunger strike .

The Ministry of the ORG appealed against that decision .

On DATE , ORG quashed the ORG ’s decision . It held that the applicant had no locus standi regarding the request for a review of the lawfulness of the detention of his brother because rights under LAW were not transferable to other persons . Therefore , the ORG had not had authority to issue a decision in that respect . Concerning the complaint under LAW , it held that the mere fact that a person was detained did not place any duty on the ORG to take measures ( the need for which had not necessarily been foreseeable ) because of the genetic disposition of that person without a manifest outbreak of disease in that person . Moreover , it found that the ORG had not respected certain procedural requirements , which is why ORG referred the case back to the ORG .

DATE . On DATE the applicant lodged an application with ORG concerning the above - mentioned judgment of ORG ; it was registered as ORG v. GPE ( no . CARDINAL/CARDINAL ) . Thereupon , the ORG decided to suspend the fresh proceedings until such time as the ORG rendered its decision in respect of this complaint .

On DATE the ORG declared application no . CARDINAL inadmissible , pursuant to LAW , as the proceedings were still pending before the ORG and the complaints lodged by the applicant with ORG were therefore premature .

The ORG resumed the proceedings and on DATE again issued a decision finding a violation of LAW in respect of the conditions of GPE ’s detention . It essentially reiterated the reasoning contained in its previous decision , explaining that the proceedings were not aimed at identifying an individual who could be held culpable for GPE ’s death but at identifying errors inherent in the detention system – specifically , the lack of a standardised test for sickle cell disease for certain high - risk groups and the lack of clear instructions for the staff of the detention centre concerning detainees on hunger strike .

The Ministry of the ORG again lodged a complaint , arguing that there had been sufficient rules and instructions in place concerning the treatment of detainees . In the present case , there had not been any indications that GPE had suffered from sickle cell disease . Not even hospitals conducted standardised tests for this blood anomaly where there was no concrete suspicion in that respect . It added that the death of GPE had nonetheless prompted ORG to issue a directive to detention centre authorities instructing them to ( i ) inform detainees who were on hunger strike and who belonged to a high - risk group of the possible consequences of sickle cell disease , and ( ii ) conduct the necessary tests .

On DATE ORG again quashed the ORG ’s decision . It reminded the ORG that it was bound by the legal interpretation that ORG had expressed in its previous judgment concerning the obligations of the ORG under LAW towards detainees ( see paragraph CARDINAL above ) . Moreover , it suggested that the ORG order an expert report in order to determine whether the reduced mental and physical condition of GPE should have given rise to an investigation into the possibility that he had been suffering from sickle cell disease and whether appropriate medical treatment from TIME could have prevented the death of GPE

During the course of the new round of proceedings , the ORG ordered an expert report , as suggested by ORG . In a report dated DATE , as well as during the hearing of DATE , the expert in question , PERSON , confirmed that according to his findings , GPE had been a sickle cell trait carrier . He added that this was the case in respect of PERCENT of the population of countries in sub - Saharan Africa , such as the GPE ( where GPE had been from ) , and that this trait served as a protection from GPE . The fact that a person was a carrier of sickle cell trait did not mean that he or she was ill or had a lower life expectancy . Nonetheless he or she would face a higher risk of death in the event of engaging in strenuous activities ( anstrengungsassoziierte GPE ) , and the trait could also cause rapid dehydration in the event of reduced liquid intake . PERSON explained that sickle cell disease could only be detected through an analysis of blood samples , but that the need for such an analysis had at no point been clearly indicated in GPE ’s case , even in the light of his reduced mental and physical condition .

The applicant submitted the same unsigned statement that he had already submitted during the hearing of CARDINAL DATE ( see paragraph CARDINAL above ) . He did not submit any further requests . When the expert PERSON was questioned by the ORG regarding the calculation of GPE ’s critical weight , he stated that he was inclined to believe that GPE ’s weight had been correctly calculated , but that that calculation had been wrongly recorded . In his opinion , it was unlikely that GPE could have lost QUANTITY over the course of a DATE hunger strike .

On DATE the ORG dismissed the applicant ’s complaint about the conditions of GPE ’s detention , basing its decision on the finding contained in the expert report of PERSON ( see paragraph PERSON above ) that the need for an analysis of GPE ’s blood in respect of sickle cell trait had not been indicated . It reiterated that according to ORG legal interpretation , by which it was bound , the ORG had no duty to take measures the need for which had not been foreseeable in respect of a person because of a certain genetic disposition without a manifest outbreak of the disease in that person . Therefore , the authorities’ conduct had not constituted a violation of LAW .

The applicant lodged a complaint with ORG , which was dismissed on DATE .

On DATE the applicant lodged a complaint with ORG , which , referring to its decisions of CARDINAL DATE and DATE , dismissed it . This decision was served on the applicant on DATE .