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

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

The applicant was born in DATE and is currently detained .

On TIME a house was robbed and CARDINAL individuals were murdered in LOC of LOC . On DATE criminal proceedings were instituted in this respect .

According to the applicant , on DATE he was arrested in GPE ; the reasons for his arrest were not explained to him , no record of the arrest was drawn up , and there was a delay in charging him . He remained in detention thereafter . On DATE , the applicant was taken to ORG headquarters , where he was allegedly beaten up by police officers from the NORP Regional Police . According to the applicant , he had been handcuffed and remained so during TIME .

On DATE the applicant was interviewed in GPE by an officer of the NORP Regional Police concerning the circumstances of his business trip to LOC from DATE . According to a written explanation signed by the applicant , he denied any involvement in the murder .

According to the applicant , on DATE he was transferred to the Ivanivka police station , where he was allegedly subjected to beatings and psychological pressure by police officers with a view to obtaining a confession .

According to the arrest report drawn up by PERSON , an investigator from the GPE regional prosecutor ’s office , the applicant was arrested on DATE as a suspect in the criminal case . The applicant refused to sign the report . On DATE PERSON apprised the applicant of his right to defence and his right not to incriminate himself . According to a decision issued by PERSON on DATE , the applicant wished to be represented by PERSON , who was formally appointed as his lawyer . Thereafter , the applicant was questioned by ORG in his lawyer ’s presence and confessed to the robbery and murder of CARDINAL persons . According to the applicant , he was in fact questioned on DATE and the record of his questioning was backdated to DATE . The applicant further maintained that the lawyer had left the interview in protest against the applicant ’s poor state of health , but the lawyer ’s signature was added to the record of the questioning afterwards .

On DATE the applicant made a written confession in the Ivanivka police station ; his lawyer was not present .

On DATE another arrest report was drawn up by an officer on duty at the Ivanivka police station . It stated that the applicant had been placed under arrest on suspicion of murder . On DATE ORG ordered the applicant ’s pre - trial detention . His lawyer was not present .

According to a statement from the applicant ’s wife , on DATE the lawyer PERSON informed her by telephone that her husband , who had been arrested in GPE on DATE , was in Ivanivka .

On DATE the applicant was transferred to the GPE temporary detention facility ( ізолятор тимчасового тримання , “ the ORG ” ) . According to the applicant , the ORG had initially refused to admit him because of his injuries and a medical officer arranged for him to attend the local hospital for a medical examination . At the hospital a general surgeon and a neurosurgeon examined the applicant and issued a medical certificate stating that he had bruising on his shoulders and hips , and extensive bruising on his head and face , but that there was no indication of brain damage . Subsequently , the applicant was taken back to the ORG but the medical officer sent him back to the hospital for an additional examination , as not all the injuries on his body had been recorded . However , the hospital doctors refused to issue a new certificate .

On an unspecified date the applicant was transferred from the ORG to the GPE pre - trial detention centre ( слідчий ізолятор , “ the GPE ” ) .

On DATE the investigator charged the applicant and a Mr GPE with the robbery and murder of CARDINAL persons .

On DATE , at the applicant ’s request , lawyer PERSON was replaced by lawyer PERSON

On DATE the applicant complained to investigator ORG that the police officers had beaten him and put psychological pressure on him in order to force him to confess .

NORP In response to a request from the investigator PERSON , on DATE the ORG informed him about the injuries observed on the applicant on DATE and about the disagreement as to their full extent which had occurred on DATE .

On DATE investigator ORG refused to institute criminal proceedings into the above complaint for want of proof against the police officers . According to the investigator ’s decision , it was impossible to establish the circumstances in which the applicant had sustained his injuries . The investigator relied on a certificate from the GPE , according to which at the time of the applicant ’s admission to the GPE he had had no injuries , and on the ORG records of DATE describing the applicant ’s injuries . The investigator stated that despite this information from the ORG , the applicant had not raised any complaints during his questioning at the ORG . The decision was included in the applicant ’s criminal case file .

On DATE the applicant and his representative studied the criminal case file in its entirety .

On DATE the applicant refused to continue to be represented by lawyer PERSON and was given time to find a new lawyer .

On DATE the applicant wrote to the deputy prosecutor of the Odessa Region arguing that the decision of DATE had been based on an error and asking that his case be examined impartially and carefully . The applicant alleged that the ORG had originally refused to admit him because of his injuries and had agreed to admit him only after he had presented a written explanation of his injuries to the ORG medical officer .

On DATE the applicant concluded a contract with Mr PERSON , who represented him in the proceedings thereafter .

NORP Following remittal of the applicant ’s criminal case for an additional investigation , on DATE it was transferred to ORG for trial . According to the applicant , he had been allowed to study only part of the case file material .

In the course of the trial the applicant and PERSON retracted all their confessions , which they claimed had been given under duress , and asserted their innocence . The applicant raised the complaint that he had been illtreated . ORG questioned the investigator PERSON , who stated that the injuries recorded at the ORG could have been inflicted on the applicant in the course of arrest .

On DATE ORG found the applicant and his co - defendant ORG guilty of murder and sentenced them to life imprisonment with confiscation of their property . The court based their conviction , among other things , on the testimony of PERSON , who had seen the applicant and PERSON before and after the murder , on fingerprints from ORG found at the scene of crime , on the confessions made by the applicant and GPE in the presence of their lawyers , and on the applicant ’s written confession of DATE made in the absence of his lawyer . Commenting on the applicant ’s complaint of ill - treatment , the court also took into account the investigator ’s decision of DATE . It thus found that there was no evidence that the applicant ’s confession had been obtained under duress and rejected his complaint as unsubstantiated .

The applicant and his lawyer appealed in cassation , complaining , inter alia , of the applicant ’s alleged ill - treatment in police custody , as a result of which he had confessed .

On DATE ORG upheld the applicant ’s conviction . It noted that his complaint of ill - treatment had been thoroughly examined by ORG and had been lawfully rejected as unsubstantiated . It also mentioned that the applicant ’s guilt had been proved by his confession , among other things .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant was born in DATE and lives in GPE .

He was formerly a shareholder in CARDINAL private companies , O. and PERSON , which were liquidated on the basis of decisions by other shareholders . Accordingly , the local authorities struck the companies out of the list of legal entities . The applicant instituted several sets of court proceedings in that regard .

On DATE the applicant instituted proceedings in ORG of Dnipro ( “ the ORG ” ) against the local council and CARDINAL private persons , challenging the company ’s liquidation , claiming back his shares and seeking compensation . The applicant made changes to his claims on a number of occasions .

In the course of the proceedings , CARDINAL of the approximately CARDINAL hearings were adjourned at the request of CARDINAL or more of the parties , or owing to their failure to appear . DATE and DATE no hearings were held pending the outcome of appeals in cassation against a procedural decision by CARDINAL or other of the defendant parties . DATE courts at CARDINAL levels of jurisdiction examined the question of whether the case should be considered within the framework of civil or commercial proceedings . Eventually , it was decided that the case should be examined under the rules of civil procedure and examination on the merits resumed in DATE .

Overall , the proceedings lasted for DATE , the final decision being taken by ORG on DATE . That court upheld decisions of ORG of DATE and of ORG ( “ the ORG ” ) of DATE rejecting the applicant ’s claims as unsubstantiated . The courts found that there had been no violation of the applicant ’s rights as a shareholder of O.

In DATE the applicant brought a civil claim with ORG against the local council and a number of private persons , challenging the liquidation of company PERSON and the authorities’ decisions in that regard . He also sought the restoration of the company as a legal entity , recovery of his shareholding and an order to declare the minutes of the NORP general assembly invalid .

On DATE , the court decided , in the applicant ’s presence , to leave his claim without examination , finding that it concerned essentially the same issue as CARDINAL which it had examined in proceedings concerning the applicant ’s administrative claim ( see paragraph CARDINAL and QUANTITY below ) .

On DATE the applicant lodged a statement of intent with ORG to appeal against the decision of DATE . On DATE he lodged an appeal , stating , inter alia , that that decision had been incorrect , as his administrative claim had concerned only a part of the issues raised in the civil claim .

On DATE ORG left the applicant ’s appeal without examination , finding that the statement of intent to appeal had been lodged outside the DATE time - limit envisaged by LAW ( see paragraph CARDINAL below ) . According to the appeal decision , the time - limit in question had started to run from the date of the pronouncement of the contested decision .

On DATE ORG dismissed the applicant ’s appeal in cassation , finding no fault on the part of the lower courts .

NORP In DATE the applicant brought an administrative claim in ORG against the head of the local council , seeking the annulment of the decision striking PERSON out of the list of legal entities .

On DATE the court , having examined the case pursuant to ORG of DATE , rejected the applicant ’s claim as unsubstantiated , finding that the contested decision had been lawful . The court further noted that the applicant had made allegations of the unlawfulness of the ORG decision to liquidate the company , which could not be examined in the framework of administrative proceedings . It also noted that the applicant ’s claim had been brought out of time , though it did not consider it necessary to reject it on that ground .

On DATE ORG upheld the decision of CARDINAL DATE .

On DATE ORG quashed the decisions of the lower courts and terminated the proceedings . It found that the claim should not have been examined within the framework of administrative proceedings , as it essentially concerned a property dispute . ORG noted that the applicant ’s claim could be heard under LAW .


Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

NORP The applicant , Ms Nada Čoko , is a NORP national , who was born in DATE and lives in GPE . She was represented before the Court by Mr Ž. Čogelja and ORG , advocates practising in GPE .

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

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

On DATE the applicant was dismissed from her employment at company B.

On DATE she brought a civil action in ORG ( PERSON ) , seeking to have the company ’s decision to dismiss her reversed . Company B. had CARDINAL representatives in the proceedings , PERSON and PERSON

By a judgment of CARDINAL DATE ( hereafter “ the principal judgment ” ) ORG ruled for the applicant and ordered her reinstatement .

By a judgment of DATE the ORG ( PERSON u PERSON ) dismissed an appeal by the defendant company and upheld the principal judgment . The applicant ’s representative was served with a copy of the second - instance judgment of the Šibenik ORG on CARDINAL DATE . PERSON was served with a copy of it on DATE and PERSON on DATE .

On DATE the ORG stamped the applicant ’s copy of the principal judgment with certificates of finality and enforceability . Those certificates indicated that the judgment had become ( a ) final on DATE and ( b ) enforceable on DATE .

On DATE the defendant company applied to ORG seeking to have the certificate of the enforceability of the principal judgment set aside . In so doing it argued that the certificate wrongly indicated that the judgment in question had become enforceable on DATE whereas it had actually become enforceable earlier . That error was due to the fact that ORG , when determining the date of enforceability , had mistakenly taken into account the date on which judgment had been served on PERSON instead of the date on which it had been served on PERSON

On DATE the ORG set aside the certificate of enforceability of DATE . ORG held that , as the principal judgment had been served on PERSON on DATE , it had therefore already become enforceable on DATE , after the DATE grace period for voluntary compliance had expired ( see paragraphs CARDINAL below ) . The relevant part of the decision reads as follows :

“ The certificate of enforceability of the [ principal ] judgment of ORG ... is hereby set aside .

The judgment ... became final on DATE , the date of the judgment of the Šibenik ORG ... , by which the defendant ’s appeal was dismissed .

The judgment of the Šibenik ORG ... was served on CARDINAL of CARDINAL representatives of the defendant on DATE , meaning that the DATE time - limit for voluntary compliance with the final judgment began on DATE , after the expiry of which the judgment became enforceable .

The fact that the second - instance judgment was served on the second defendant ’s representative on DATE has no significance for the enforceability of [ that ] judgment ...

Since this court has linked the issuance of the certificate of enforceability to the date of service on the defendant ’s second representative ... without bearing in mind that the defendant was duly served through the first representative ... the certificate of enforceability is hereby set aside . ”

On DATE the applicant appealed against that decision , arguing that since DATE , the date on which the principal judgment had been served on her , she had made DATE enquires about the enforceability of the judgment with ORG , but had only been able to obtain a certificate of enforceability on DATE . The applicant also argued that this date should not be changed , even if only the date on which the principal judgment was served on the first of the defendant ’s CARDINAL representatives was taken into account , as the time - limit had been properly calculated from the date on which the acknowledgement of acceptance of service had been returned to ORG .

On DATE the ORG dismissed the applicant ’s appeal and upheld the first - instance decision . It held that the principal judgment had indeed been served on PERSON on DATE and had become enforceable DATE .

On DATE the applicant lodged a constitutional complaint arguing that the decisions of ORG and ORG had deprived her of the ability to have the final judgment entitling her to reinstatement enforced , as they had retroactively created a situation in which her application for enforcement had been lodged outside of the DATE statutory time - limit provided in section QUANTITY of LAW ( see paragraph CARDINAL below ) . The applicant complained about the significant gap between the date when the defendant ’s first representative PERSON had signed the acknowledgement of acceptance of service and the date when he had returned it to ORG .

On DATE ORG ( Ustavni sud PERSON ) declared the applicant ’s constitutional complaint inadmissible because the contested decisions were not susceptible to constitutional review as they could not be regarded as decisions referred to in section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) against which a constitutional complaint could be lodged .

Meanwhile , on DATE the applicant applied for enforcement of the principal judgment to ORG . She also sought payment of salary arrears in the period DATE and DATE .

By a decision of CARDINAL DATE ORG issued a writ of execution ( rješenje o ovrsi ) ordering the defendant company to reinstate the applicant within DATE . It however dismissed her claim for salary arrears .

Both the applicant and the defendant company appealed against that decision . In its appeal , the defendant company claimed that the applicant had failed to comply with the DATE statutory time - limit for seeking the enforcement set forth in section CARDINAL of LAW ( see paragraph CARDINAL below ) because she had been served with the second - instance judgment of DATE already on DATE but had applied for enforcement only on DATE ( see paragraphs QUANTITY above ) .

On DATE the ORG dismissed the defendant company ’s appeal . It found that the applicant had applied for the enforcement of the principal judgment on DATE that judgment had become enforceable and thus complied with the statutory time - limit provided in section CARDINAL of LAW ( see paragraphs CARDINAL above and paragraph CARDINAL below ) . At the same time , the court allowed the applicant ’s appeal and quashed the part of the first - instance decision dismissing the applicant ’s claim for salary arrears and remitted the case .

In the resumed enforcement proceedings , ORG held hearings on DATE and DATE . These hearings were adjourned after the defendant company asked the court to wait for a decision on its application to have the certificate of enforceability of the principal judgment set aside ( see paragraph CARDINAL above ) . Another hearing was held on DATE . It was adjourned due to the possibility of the parties reaching an out - of - court settlement . At a hearing held on DATE the court decided to forward the entire case file to its President with a view to deciding on the defendant company ’s application to set aside the certificate of enforceability .

By a decision of CARDINAL DATE ORG , relying on section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) discontinued the enforcement proceedings because a certificate of enforceability had in the meantime been set aside ( see paragraphs CARDINAL above ) . The applicant did not appeal against that decision .

NORP The relevant part of LAW on LAW ( PERSON o PERSON , ORG no . CARDINAL/CARDINAL of DATE – “ the LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE ) , which entered into force on DATE , reads as follows :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the decision of a ORG authority , local or regional government , or a legal person invested with public authority , on his or her rights or obligations , or as regards a suspicion or accusation of a criminal offence , has violated his or her human rights or fundamental freedoms , or the right to local or regional government , guaranteed by LAW ( “ constitutional right ” ) ...

NORP If another legal remedy is available in respect of the violation of the constitutional rights [ complained of ] , the constitutional complaint may be lodged only after this remedy has been exhausted .

NORP In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law [ revizija ] is available , remedies shall be considered exhausted only after the decision on these legal remedies has been given . ”

The relevant part of LAW ( Zakon o parničnom postupku , ORG of ORG no . CARDINAL with subsequent amendments , and ORG no . CARDINAL/CARDINAL with subsequent amendments ) , which has been in force since DATE , provides as follows :

Section CARDINAL

“ If a party has several legal representatives or agents , it shall be sufficient to serve a decision on CARDINAL of them . ”

Section CARDINAL(CARDINAL )

“ A judgment which can no longer be contested by an appeal shall become final where it decides on the plaintiff ’s claim or on a counter - claim . ”

Section CARDINAL(CARDINAL )

“ A judgment shall not take effect in respect of the parties until DATE it is served on them . ”

Section CARDINAL provides for a time - limit within which a judgment debtor can voluntarily comply with ( execute ) the judgment ( paricijski rok – “ the grace period ” ) . The lodging of an appeal suspends the running of the grace period . The provision reads as follows :

“ When a judgment debtor has been ordered to do something by the judgment , the court shall set a time - limit for performance .

Unless special legislation provides otherwise , the time - limit for performance shall be DATE . However , if the performance does not entail payment of money the court may set a longer time - limit . ...

The time - limit for performance shall start running on DATE after the service of a copy of the judgment on the judgment debtor . ”

Section CARDINAL provides that in employment disputes the grace period is DATE .

The relevant part of LAW of DATE ( Ovršni zakon , ORG , no . CARDINAL with subsequent amendments ) , which was in force between CARDINAL DATE and DATE , at the material time provided as follows :

Enforceability of a [ court ] decision

Section PERSON )

“ A court decision ordering [ the judgment debtor ] to give or do something shall be enforceable if it has become final and if the time - limit for voluntary performance [ that is , the grace period – paricijski rok ] has expired . The time - limit for voluntary performance runs from the date the decision is served on the enforcement debtor [ the judgment debtor ] , unless the law provides otherwise . ”

Certificate of enforceability

Section CARDINAL(CARDINAL ) and ( CARDINAL )

“ ( CARDINAL ) If an application for enforcement is lodged with a court which did not decide on the claim at first instance , the application must be accompanied by the original or a copy of the enforcement title having the certificate of enforceability ...

( CARDINAL ) A certificate of enforceability shall be issued by the court or [ other ] authority which adjudicated on the claim at first instance . ”

( CARDINAL ) Any certificate of enforceability that was issued without the necessary statutory requirements shall be set aside by the court or [ other ] authority by a decision , upon request or of its own motion . ”

Section CARDINAL(CARDINAL ) , as in force at the material time , provided that the enforcement court was not entitled to dismiss of its own motion an application for enforcement based on a court judgment which , by the time the application was being decided upon , had become final but had not yet become enforceable . Section CARDINAL ) read as follows :

“ The court shall not of its own motion declare inadmissible an application for enforcement based on a final judicial decision [ notably , a judgment ] , in - court settlement or notarial deed solely on the ground that those documents have not been stamped with a certificate of enforceability or because [ they ] have not become enforceable at the time the application for enforcement is being decided upon ... ”

Section CARDINAL(CARDINAL ) of LAW , as in force at the material time , stated grounds on the basis of which the enforcement court could discontinue the enforcement . That provision read as follows :

“ Unless this LAW provides otherwise , the court shall of its own motion discontinue enforcement proceedings if the enforcement title was finally quashed , reversed , annulled , repealed or otherwise deprived of its effect , or if the certificate of enforceability was set aside . ”

Chapter CARDINAL of LAW regulated the enforcement of judgments ordering the reinstatement of employees . The relevant provision of that LAW read as follows :

The time - limit for lodging an application for enforcement

Section CARDINAL

“ An application for enforcement [ on the basis of an enforcement title ordering an employer to reinstate an employee ... ] may be lodged within a time - limit of DATE from the date the enforcement creditor acquires the right to lodge such application . ”

NORP legal scholars have expressed the opinion that setting aside the certificate of enforceability did not automatically lead to discontinuation of the enforcement proceedings , as the text of section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL above ) appeared to suggest . This was especially so in the situations such as the one referred to in section CARDINAL ) of the same Act , namely , where the judgment sought to be enforced had become final but had not yet become enforceable ( see paragraph CARDINAL above ) . In such situations the enforcement court was not entitled to discontinue the enforcement proceedings . In particular ( see PERSON , GPE : Građansko ovršno pravo [ Civil Enforcement Law ] , ORG novine , GPE , DATE , p. CARDINAL ) :

“ If the certificate of enforceability was set aside on the grounds which do not prevent [ the enforcement creditor from ] seeking enforcement without such certificate ( section CARDINAL(CARDINAL ) [ of LAW ] ) , the fact that the certificate of enforceability was set aside can not be a ground for discontinuation of the [ enforcement ] proceedings . ”

As regards the issue how the time - limit provided for in section CARDINAL of LAW ( see paragraph CARDINAL above ) was to be calculated the same author expressed the following view ( see PERSON , GPE : CARDINAL . , p. CARDINAL ) :

“ The time - limit [ in question ] should in principle be calculated from the moment the enforcement title [ for example , a judgment ] becomes enforceable . However , given that the enforcement creditor has to exercise his or her right within that time - limit , the moment when that time - limit starts to run has to correspond to the moment when the enforcement creditor learns that [ the judgment sought to be enforced ] has become enforceable . CARDINAL often has to wait some time to find out whether and [ , if so ] when the enforcement debtor [ the judgment debtor ] has received the first - instance [ judgment ] and whether he or she has appealed against it [ , and if so ] when the second - instance [ judgment ] dismissing the appeal and upholding the first - instance judgment was served on the enforcement debtor and when the grace period for voluntary compliance which started to run from the service of that [ second - instance judgment ] expired . Therefore , it should be understood that DATE time - limit should start to run from DATE the court was able to issue the certificate of enforceability .

Given that the court is not entitled to declare inadmissible of its own motion an application for enforcement based on a final court judgment ... simply because [ the judgment sought to be enforced ] has not been stamped with a certificate of enforceability at the time the application for enforcement is being decided upon , or to dismiss such application because the judgment to be enforced has not become enforceable ( section CARDINAL ) [ of LAW ] , it should be understood that the employee would be entitled to apply for enforcement even before [ the judgment sought to be enforced ] became enforceable ... ”


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

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

On DATE criminal proceedings were brought against the applicant and CARDINAL other person in connection with a traffic accident which had resulted in death of a child .

On DATE ORG in GPE convicted the applicant for endangering public traffic and sentenced him and his co - accused to DATE and CARDINAL months’ imprisonment .

On an unspecified date in DATE ORG in GPE quashed this judgment and remitted case back to ORG .

On DATE ORG adopted a new judgment and again convicted the applicant and his co - accused . But the court reduced the sentence to DATE and CARDINAL months’ imprisonment .

On DATE the ORG further reduced the sentence of the applicant ’s co - accused , but upheld the judgment of ORG in respect of the applicant .

The applicant ’s subsequent appeal against the judgment of ORG was rejected on DATE .

Following that rejection , on an unspecified date in DATE , the applicant lodged a further appeal on points of law ( zahtjev za ispitivanje zakonitosti pravosnažne presude ) with ORG .

On DATE ORG rejected this appeal .

On DATE the applicant lodged an action for fair redress ( tužba za pravično zadovoljenje ) with ORG , complaining about the overall length of criminal proceedings . It was rejected on DATE .

On DATE ORG rejected the applicant ’s ultimate appeal .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive 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 was at the material time serving a prison sentence in FAC no . CARDINAL .

On DATE the applicant was arrested on suspicion of having robbed an individual of his vehicle , his mobile phone , and a sum of money while armed . He was placed under investigation DATE and questioned twice . He protested his innocence , providing an alibi , and said that he had cancer and was undergoing treatment at an oncology clinic . The applicant was identified by the victims . Maintaining his innocence , he refused to sign the record of the identification procedure .

During questioning on DATE , the applicant repeated his alibi and complained about his state of health . On DATE he was charged with theft and armed robbery ( Articles CARDINAL and CARDINAL of the Criminal Code respectively ) .

On DATE ORG granted an application by the prosecutor to place the applicant in pre - trial detention for DATE . On CARDINAL DATE the decision was upheld by ORG , despite the applicant ’s submission that he was ill and would not attempt to evade justice . The applicant was placed in FAC no . CARDINAL .

On DATE the applicant was found guilty of the charges and sentenced to CARDINAL years’ imprisonment by the court of first instance .

The applicant appealed to ORG . After examining the witness statements in the light of the other evidence , ORG found that the applicant ’s alibi lacked credibility . By a judgment of DATE , it amended the judgment of DATE in the part concerning the classification of the offences , but upheld the applicant ’s conviction and prison sentence .

ORG of GPE dismissed an appeal on points of law by the applicant on an unidentified date .

In DATE the applicant had an operation to remove a malignant tumour from his right testicle . He subsequently had chemotherapy on a sporadic basis . As the illness then returned , he had another operation in DATE . According to a medical certificate dated DATE , the applicant also suffered from chronic hepatitis C ( ORG ) .

Shortly after being placed in detention , on DATE , the applicant was transferred to the prison hospital . After confirming the diagnosis of chronic ORG and that he had been recently treated for cancer of the right testicle , doctors recommended he have a consultation with an oncologist and a special medical examination . On DATE the head of the surgical unit wrote to the prison hospital ’s acting head doctor , informing her that the applicant needed to be examined by a urological oncologist at ORG ( “ the ORG ” ) . He noted that the applicant was ready to bear all the costs himself . In DATE doctors again recommended he be seen by an oncologist specialising in urology . The case file shows that the applicant was not transferred to the ORG or examined by an oncologist . He stayed at the prison hospital until DATE and , according to his medical records , he was provided with treatment for his symptoms , which consisted of pain medication .

After several prison transfers and given that his health was still unsatisfactory , the applicant returned to the prison hospital on DATE . On DATE an oncologist concluded after examining the applicant that the cancer had returned and that he also had pain in his left testicle . He had lost weight and the chronic ORG had worsened .

On DATE , at the request of the applicant ’s defence , a group of independent experts submitted a report on his health . They diagnosed him with cancer of the right testicle at stage CARDINAL B in clinical group ORG . The experts considered that given the degree of the tumour ’s malignancy the applicant ’s state of health could be considered as potentially serious . The rest of the tumour would have to be removed and the applicant given an intensive course of chemotherapy in conditions of stability . He would have to undergo check - ups every three months for DATE .

On DATE the applicant was sent back to GPE Prison no . CARDINAL . The authorities refused a request for his return to the prison hospital sent by his lawyer to the director of the prisons department of ORG , the prison governor and other authorities .

On DATE the applicant was sent to the ORG for a course of chemotherapy . On DATE , before being discharged , the oncologist recommended that the applicant return after DATE for a check - up and more chemotherapy . At the same time , in view of the further progress of the disease , he recommended that the applicant be placed under permanent medical supervision in the prison hospital .

The applicant was put in the prison hospital from CARDINAL to DATE , receiving treatment for his symptoms . On DATE he was moved from the prison hospital to FAC no . CARDINAL . Contrary to the oncologist ’s recommendations , the prison administration did not send the applicant back to the ORG after DATE .

On DATE the applicant ’s lawyer lodged a complaint with ORG , drawing the judge ’s attention to his client ’s poor health , caused by a lack of adequate treatment which , in his view , could lead to his death . He complained in particular about the fact that the applicant had not been able to attend intensive chemotherapy sessions , despite ORG recommendations . The lawyer asked ORG to order an expert report to reassess his client ’s state of health , determine whether the prison hospital was able to provide him with the necessary treatment and whether the conditions of his detention could have a negative impact on his health . It also had to establish whether the applicant ’s life would be put at risk if the authorities failed to place him in a specialist clinic .

On DATE , ORG , having received an objection from the prosecutor , rejected the lawyer ’s request and decided to summon the oncologist who had signed the recommendation of DATE .

On DATE the applicant was placed in the prison hospital . On DATE his doctor concluded that the applicant required a transfer to the ORG for more chemotherapy . The doctor subsequently reiterated his recommendation , however , it was in vain as no transfer followed . By DATE the applicant ’s condition had deteriorated . According to his medical records , he suffered constant pain and regularly received strong painkillers . The doctor in charge noted on a regular basis in the medical record that the applicant needed to be transferred to the ORG urgently .

In the meantime , in the context of the criminal proceedings conducted against the applicant , ORG ordered that he be examined at the ORG .

On DATE , the applicant was admitted to the ORG , where he stayed until DATE in order to undergo a course of chemotherapy . At the same time a report concerning his medical condition was issued , which confirmed the diagnosis of cancer of the right testicle at stage CARDINAL B in clinical group ORG . The experts held that the results of the chemotherapy meant that the applicant ’s state of ill health could not be described as serious . Nevertheless , given the malignancy of the tumour the cancer could return . Consequently , several chemotherapy sessions were necessary to consolidate the success of the previous treatment . In addition , the applicant needed check - ups in a specialist clinic DATE .

He was then returned to the prison hospital on DATE , with a recommendation for another course of chemotherapy after DATE . In DATE the doctor in charge of his case repeatedly noted in his medical records that he required chemotherapy . The medical file shows that only treatment for his symptoms was available at that time .

On DATE the applicant returned to the ORG for chemotherapy . On DATE he was transferred back to the prison hospital with a recommendation for regular DATE medical tests . On DATE he was sent to ORG no . CARDINAL and given a recommendation for an examination after DATE . No record of his medical care at FAC no . CARDINAL and the subsequent DATE , if any , has been submitted to the ORG .

On DATE the applicant was transferred to the prison hospital , where he had various medical tests and had a consultation with an oncologist and a chemotherapy specialist . The latter concluded that there was no need for continued chemotherapy and noted that the applicant was due to return to the prison hospital for another check - up within DATE . As for the applicant ’s ORG , a liver function test had helped establish that the amount of bilirubin was within the norm and that no antiviral treatment was required at that stage . On DATE the applicant complained about being discharged from the prison hospital and of a lack of adequate medical care , particularly for his ORG . He stated that the chemotherapy had had an adverse effect on his liver and that he required urgent care in that regard . Notwithstanding his complaint , on DATE he was transferred to ORG no . CARDINAL .

The applicant submitted that he had borne the costs of his stays in hospital and treatment with the support of his family . According to the invoices in the case file , CARDINAL NORP laris ( MONEY ( ORG ) ) were spent on his treatment at the ORG . The applicant also submitted a certificate which stated that in the framework of a state - funded programme to combat cancer he had benefitted from a PERCENT reduction in the cost of treatment and a PERCENT reduction in the cost of diagnostic tests . Without those reductions , the family would not have been able to pay for his treatment .

On DATE the ORG , acting under LAW , indicated to the Government that the applicant should be placed in the prison hospital , where he could be provided with adequate medical treatment for his cancer and chronic ORG . The Government were also directed to ensure that the applicant was provided with all the relevant medical tests before commencing antiviral treatment and that his treatment be determined in consultation with an oncologist .

The applicant was transferred to the prison hospital DATE . On DATE , he was taken to a specialist civilian medical institution , where he underwent a tomography scan , which revealed a cyst - like lump . Doctors recommended a cancer marker blood test and an examination by an oncologist . Upon his return to the prison hospital , on DATE , the applicant had a consultation with a chemotherapy specialist , who concluded that he required several liver tests in view of his ORG diagnosis and further chemotherapy . The applicant was immediately offered chemotherapy at the prison hospital under the surveillance of an oncologist and a chemotherapy expert . However , he rejected that offer and on DATE requested a transfer to a specialist medical establishment . In that connection , the applicant argued that the conditions at the prison hospital were not appropriate for chemotherapy and that the relevant specialists were not present on a permanent basis to monitor his condition .

On CARDINAL DATE a medical panel at the prison hospital , including an oncologist , chemotherapy doctor and a liver specialist , concluded that treating both of the applicant ’s diseases simultaneously was not advisable . They concluded that chemotherapy was the priority and that the antiviral treatment should be postponed . On DATE the applicant was again offered chemotherapy at the prison hospital , but he refused and requested a transfer to the ORG . In reply to his request , by a letter of DATE , the head of social services at the prisons department asked the applicant to substantiate his request and explain the reasons for his dissatisfaction with the prison hospital . The applicant noted in a letter of CARDINAL DATE that the prison hospital , inter alia , did not employ a chemotherapy specialist who was present on a DATE basis and that he would therefore be left without DATE medical supervision there .

According to the medical file , the applicant on CARDINAL DATE again had a consultation with a chemotherapy doctor . Whilst confirming the need for chemotherapy , the doctor also noted that the applicant required various liver tests before antiviral treatment could commence .

In a letter of DATE the head of social services stated that the prison hospital was adequately equipped to provide the applicant with chemotherapy under the supervision of relevant specialists . He noted that several other inmates had had such treatment at the prison hospital and there was therefore no need to transfer the applicant to a specialist civilian hospital .

The Government informed the ORG in a letter of DATE about the applicant ’s refusal to have chemotherapy in the prison hospital . Treating it as obstructive behaviour and referring to the associated health risks , the ORG asked the ORG to provide them with any further indications at its earliest convenience .

On DATE and DATE the applicant asked the ORG , under Rule DATE , to indicate to the Government to transfer him to the ORG for chemotherapy . He reiterated his argument concerning the inadequacy of the equipment at the prison hospital for providing the requisite treatment for his cancer . In support , he noted that CARDINAL of the CARDINAL prisoners who had had chemotherapy at the prison hospital had passed away .

On DATE the ORG , acting under LAW , requested that the Government transfer the applicant to the ORG for more chemotherapy . On DATE the applicant was transferred to the ORG , where he had a tomography scan , which showed that there had been no progression of his retroperitoneal lymphadenopathy in the abdominal cavity and that tumour markers were within normal limits . At the same time the scan revealed changes in his left lung and doctors recommended that he have a further examination . Following additional medical tests the applicant was diagnosed with tuberculosis ( “ TB ” ) in the left lung . On DATE he had a resection of the upper part of the left lung . On discharge from the ORG in DATE , it was noted that his condition was stable but that he required specialist treatment in a tuberculosis unit . The need for DATE oncological check - ups was also noted .

On DATE the applicant had a consultation with a liver specialist , who noted a low level of pathological activity in the applicant ’s ORG and prescribed treatment with various hepatoprotectors . At the same time he was offered anti - TB treatment within the ORG programme ( Directly Observed Treatment , GPE – the treatment strategy for the detection and cure of GPE recommended by ORG ) , which he refused . On DATE and then on DATE the applicant also had ORG tests . The results showed no replication of the hepatitis and accordingly no need for antiviral treatment . The applicant was prescribed continued treatment with various hepatoprotectors .

Over DATE the applicant was kept mainly in the prison hospital , except for short periods in DATE , and DATE and DATE , when he was transferred to the ORG and other civilian hospitals for check - ups . The medical records show that over that time the applicant was kept under constant medical supervision , having regular laboratory tests and examinations ( blood and urine tests , ultrasound examinations , several tomography scans , determination of cancer markers , and bacteriological sputum tests ) , and having repeated consultations with medical specialists , including an oncologist , urologist , and an infection specialist . The medical file also shows that DATE and DATE the applicant underwent a comprehensive forensic examination at ORG . As a result his diagnosis was defined as follows : cancer of the right testicle at the first stage in clinical group III in a postchemotherapy and post - resection period . The applicant ’s condition was described as satisfactory , with the experts noting no hepatological pathology , inactive tuberculosis bacteria and no progression of the cancer .

On DATE the ORG updated the ORG on the treatment provided to the applicant for his various diseases . When submitting the applicant ’s complete medical file for DATE , the ORG maintained that the applicant ’s diseases were not showing any signs of progression . They submitted that they had taken all the necessary measures for the protection of the applicant ’s health in prison and asked the ORG to lift the interim measure indicated on DATE .

By a letter of DATE , the applicant objected to being discharged from the prison hospital . He stated that the medical evidence submitted by the Government did not support the assertion that he did not require further medical treatment . He also noted that he had never been provided with any treatment for his chronic ORG and that his health would again deteriorate if he was transferred to FAC no . CARDINAL .

In the light of the information provided by the parties , ORG DATE decided to lift the interim measures previously indicated on DATE and DATE under Rule DATE .

The applicant was detained in GPE Prison no . CARDINAL between DATE and DATE , including several transfers to the prison hospital . According to the applicant , the conditions of his detention in FAC no . CARDINAL were appalling . He was kept in an overcrowded cell , where he had to take turns to sleep , getting a maximum TIME of sleep a day . The sanitary and hygiene conditions in the cell were bad and he was not allowed to have DATE outdoor exercise .

The applicant mainly spent DATE in FAC no . CARDINAL and the prison hospital . According to the applicant , the food provided in those establishments was so poor that his family had to regularly supply him with food at their own expense . Furthermore , he was deprived of basic items of hygiene , such as toilet paper , soap and bed linen .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

Until DATE the applicant was married to PERSON and was living with her in a state - owned flat which had been provided to PERSON ’s parents . The applicant was registered as living in that flat .

In DATE the applicant and PERSON divorced and the applicant moved in with his new partner , PERSON At that time he did not apply for deregistration from the flat which he had occupied with his former wife . Later PERSON privatised that flat , and the applicant lost occupational right to it .

B. occupied a room in a CARDINAL - room communal flat under a social tenancy agreement . The other CARDINAL rooms were occupied by her neighbours . The applicant and PERSON lived together in that room for the following DATE . They never married and the applicant was not registered as living in the room .

In DATE B. died and her neighbours locked the applicant out of the flat . The local housing authority informed the applicant that he had to vacate the room , since he had no legal right to occupy it .

On DATE the applicant instituted court proceedings against the local administration , seeking recognition of his right to occupy the room as B. ’s family member . He submitted that he and PERSON had been living in the room as husband and wife since DATE , but that after her death her neighbours had locked him out of the room . He considered that despite the fact that he had not been married to PERSON and had not been registered as living in the room , he should be regarded as a member of her family who had acquired the right to occupy her room . In particular , he raised the following arguments :

- he had shared a common household with B. ;

- he had paid for the maintenance of the room ;

- he had assumed the cost of B. ’s burial ;

- he had no other housing : he could not return to the flat of his former wife PERSON since she had become the owner of that flat and lived there with her new family ;

- on DATE he had asked the authorities to deregister him from the flat of his former wife PERSON ;

- since his eviction , he had been obliged to live in the school in which he was working as a night watchman .

The local administration submitted that the applicant had not been registered as living in PERSON ’s room , he was not a member of PERSON ’s family and , therefore , he had not acquired any right to occupy her room .

B. ’s neighbours were invited to participate in the proceedings as third parties . They confirmed that DATE the applicant had lived in the room with PERSON and had provided her with financial support . However , they considered that PERSON ’s room should be allocated to them and not to the applicant , since there were CARDINAL of them living in CARDINAL rooms and they needed to upgrade their living conditions .

On DATE ORG ( “ the ORG ” ) of GPE granted the applicant ’s claim with reference to Articles CARDINAL and CARDINAL of LAW ( see Relevant domestic law and practice below ) . ORG established , in particular , that DATE the applicant had cohabited with B. in the room in question , had shared a common household with her and had been removed from the register at his previous place of residence . ORG considered that the above circumstances should be regarded as exceptional within the meaning of LAW and that the applicant should therefore be regarded as a member of PERSON ’s family who had acquired the right to reside in the room previously occupied by her .

NORP The local administration did not appeal against the judgment of CARDINAL DATE .

The third parties appealed against that judgment to ORG ( “ the ORG ” ) . They submitted that PERSON had on several occasions chased the applicant away . She had not applied to the authorities with a request to register him as living in her room , and had not asked that his name be added to the social tenancy agreement as a member of her family . The applicant had not paid any utility charges for the room and had been registered as living elsewhere until PERSON ’s death .

On DATE ORG quashed the judgment of CARDINAL DATE and dismissed the applicant ’s claims . The relevant part of the decision of CARDINAL DATE reads as follows :

“ When granting the claims of PERSON . N. [ the applicant ] , the court [ ORG ] proceeded from the premise that there existed exceptional circumstances allowing it to recognise him as a member of ORG ’s [ B. ’s ] family in accordance with LAW .

ORG [ of ORG ] can not agree with such a decision .

The court [ ORG ] established on the basis of the plaintiff ’s and witnesses’ submissions that the plaintiff had lived together with ORG [ B. ] since DATE and had shared a common household with her .

The above circumstances are not in themselves exceptional , in particular given that no irrefutable evidence had been submitted to the court to prove that Ms Brazhnikova L. P. had let PERSON live in the flat as a family member rather than as a temporary resident . Throughout the period in which he lived together with ORG , the plaintiff had been registered as living in house no . CARDINAL , GPE street in the village of ORG in the NORP district . He asked to be removed from the register on DATE after the death of ORG and just before applying to the court .

the court to recognise Mr PERSON . N. as a family member of the social tenant ORG as well as acknowledging his right to occupy the flat in question . It follows that the court judgment should be quashed and a new decision should be taken dismissing those claims . ”

On DATE a judge of ORG ( “ the Supreme Court ” ) refused to refer the applicant ’s application for supervisory review of the decision of DATE to ORG of ORG for examination , finding no grounds for such review and relying on the principle of legal certainty .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Dmitry Dedov;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in DATE and is detained in PERSON , GPE .

On DATE the applicant was arrested on suspicion of large - scale embezzlement .

On DATE he was formally charged with the crime .

On DATE the ORG of GPE remanded the applicant in custody pending investigation . The judge found that ( CARDINAL ) the applicant was suspected of a serious crime , ( CARDINAL ) his involvement in embezzlement was confirmed by the evidential material in the case file , ( CARDINAL ) he might put pressure on witnesses or ( CARDINAL ) he might interfere with investigation .

On DATE the Zavodskoy ORG of GPE extended the applicant ’s pre - trial detention . The court referred to the gravity of the charges and reiterated that the applicant might threaten witnesses or interfere with investigation . It also observed that the applicant might reoffend or abscond .

On DATE ORG upheld the detention order of DATE on appeal .

The applicant remained in custody pending investigation and trial until his release on DATE .

On DATE the applicant was found guilty of the charge .


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

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

The applicant was born in DATE . According to the most recently available information , in DATE the applicant was released from detention having served his sentence . He did not inform the Court of his current whereabouts .

According to the available medical documents , the applicant has been using drugs since DATE . In DATE the applicant was diagnosed with hepatitis C and hepatic cirrhosis . The applicant has been HIV - positive since DATE . In DATE he also had tuberculosis .

In DATE the applicant was taken into custody and placed in ORG слідчий ізолятор ) ( “ the GPE ” ) . On DATE ORG , GPE , sentenced the applicant to CARDINAL years’ imprisonment for drug - related offences and theft . On DATE the applicant was transferred to serve his sentence in ORG . CARDINAL . In DATE the applicant was diagnosed HIV - positive at clinical stage CARDINAL . On CARDINAL DATE the applicant ’s MONEY cell count was CARDINAL ( PERCENT ) . On DATE the ORG released him from serving the remainder of his sentence in view of his poor state of health .

On DATE the applicant was registered for regular medical checks at ORG .

On DATE ORG sentenced the applicant to CARDINAL years’ imprisonment for theft .

On DATE the applicant was placed in the Kyiv SIZO . On arrival the applicant was examined by medical staff and had CARDINAL chest Xrays . It was recommended that the applicant consult a tuberculosis specialist .

On DATE the applicant was examined by a tuberculosis specialist and diagnosed with post - tuberculosis residual changes in the right lung .

On DATE ( relevant documents contain both dates ) the applicant was placed in the GPE medical ward . He stayed there until DATE with the following diagnoses : acute haemorrhoidal bleeding , haemorrhoids , chronic multiple drug use , HIV at clinical stage CARDINAL , oropharyngeal candidiasis , chronic secondary candidiasis , acute enterocolitis , chronic hepatitis , residual post - tuberculosis changes , liver cell failure , and other conditions . The applicant was prescribed various medication .

According to the ORG , the applicant was examined by doctors in the GPE medical ward on numerous occasions . In particular , on DATE the applicant was examined by a surgeon and was examined by a general practitioner on the following dates : on CARDINAL , DATE , DATE and CARDINAL DATE with complaints of fever and weakness ; on CARDINAL and DATE with complaints of fever and weakness ; on DATE with complaints of coughing with sputum , sweating , general weakness and fever ; on CARDINAL , CARDINAL , DATE , DATE , DATE and CARDINAL DATE ; on CARDINAL and DATE ; on CARDINAL , DATE , DATE , DATE and DATE ; on CARDINAL , DATE , DATE , DATE and CARDINAL DATE ; and on CARDINAL , DATE , DATE , DATE and DATE .

On the majority of those occasions it was decided to continue the prescribed treatment .

In addition to the above consultations , DATE and DATE the applicant received the following medical care : on DATE the applicant had a chest X - ray and it was recommended that he see a tuberculosis specialist . Subsequently the applicant was examined and diagnosed with post - tuberculosis residual changes in the right lung . On DATE he had another consultation with a tuberculosis specialist ; on DATE the applicant was examined by an infection diseases specialist and diagnosed , inter alia , with HIV at clinical stage CARDINAL . It was also suspected that the applicant had had a tuberculosis relapse , so an additional X - ray was recommended ; on DATE the applicant had an X - ray . On DATE a tuberculosis specialist examined the applicant and concluded that there were no signs of active tuberculosis .

DATE and DATE , according to the test results , the applicant ’s CDCARDINAL + cell count dropped from CARDINAL ( PERCENT ) to CARDINAL ( PERCENT ) .

Meanwhile , on DATE ORG of Appeal quashed the decision of DATE in the applicant ’s criminal case and remitted the case for a fresh court examination . On DATE ORG , GPE , found the applicant guilty of drug - related offences and theft , and sentenced him to CARDINAL years’ imprisonment .

On DATE the applicant was examined in ORG . DATE the applicant was examined by a tuberculosis specialist and diagnosed with tuberculosis . The applicant was prescribed anti - tuberculosis treatment .

On DATE the applicant ’s CDCARDINAL + cell count was CARDINAL .

On DATE and DATE and CARDINAL DATE the applicant was examined by a general practitioner . The prescribed treatment was continued .

On DATE the applicant requested under Rule CARDINAL of ORG that the respondent Government be asked to secure an appropriate medical examination and treatment for him which , according to the applicant , was impossible in the Kyiv SIZO . On DATE the ORG refused the applicant ’s request .

On DATE it was recommended by a tuberculosis specialist that the applicant be transferred to a specialised tuberculosis hospital .

On DATE the applicant was transferred to ORG . CARDINAL ( PERSON виправна колонія № CARDINAL ) . He arrived there on DATE and was placed in a specialised tuberculosis hospital . Upon arrival the applicant complained of a cough with mucopurulent sputum , pain in the chest and armpits , headache , and abdominal pain and distension . It was concluded that the applicant ’s state of health was of medium severity . He underwent various blood , urine and sputum tests , X - rays and ultrasound examinations . On CARDINAL and CARDINAL DATE the applicant was examined by an otolaryngologist , a psychiatrist and a general practitioner . The applicant was diagnosed with tuberculosis , HIV , encephalopathy , chronic hepatitis and other diseases . The applicant was prescribed anti - tuberculosis treatment .

The Government provided a detailed description of the examinations , prescriptions and treatment the applicant received in the hospital DATE . It included numerous X - rays , ultrasound examinations , blood , urine and sputum tests , examinations by hospital doctors and external specialists : a tuberculosis specialist ( on DATE and DATE ) , an otolaryngologist ( on DATE : the applicant was diagnosed with otitis ) , a psychiatrist ( on CARDINAL DATE : the applicant was diagnosed with opium narcotic addiction in remission ) ; a dentist ( DATE ) , a general practitioner ( on CARDINAL , DATE , DATE , DATE and DATE ; on CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE and DATE ; on CARDINAL , DATE and DATE ; on CARDINAL , DATE , DATE , DATE and DATE ; and on CARDINAL , DATE and DATE ) ; a surgeon ( on DATE ) ; a dermatologist ( on DATE ) ; an infectious diseases specialist from ORG , who prescribed antiretroviral therapy ( “ ART ” ) for the applicant ( DATE ) ; and a neuropathologist ( on CARDINAL DATE ) .

On DATE the applicant started the ART .

On DATE a tuberculosis specialist from ORG concluded that the applicant ’s anti - tuberculosis treatment had been effective .

On DATE the applicant was discharged from the hospital with the diagnosis of , inter alia , post - tuberculosis residual changes , HIV ( clinical stage CARDINAL ) , chronic hepatitis in unstable remission , and chronic thrombophlebitis . The applicant was transferred to FAC . CARDINAL ( GPE виправна колонія № CARDINAL ) since his state of health had improved . He was provided with ART medication for DATE .

According to the parties , while in the hospital the applicant also received various medication from his relatives .

The applicant spent the majority of the time DATE and DATE in FAC . On DATE the applicant ’s CDCARDINAL + cell count was CARDINAL ( PERCENT ) .

On DATE the applicant was released , having served his sentence .


CASE OF MAKHLYAGIN AND BELYAYEV v. RUSSIA

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

The applicants , PERSON and Mr PERSON , were born in DATE and DATE respectively and were held in different detention facilities . The ORG officials opened and/or inspected letters that the applicants exchanged with the ORG .

From DATE until DATE the applicant , detained in a correctional colony , lodged several letters with ORG . All of them were accompanied by cover letters from a chief officer of the colony summarising the content of the applicant ’s letters . Some letters also bore the colony ’s registration stamps .

The applicant lodged a claim , alleging that the colony ’s staff had impeded his correspondence with the ORG . On DATE the ORG of Nizhniy Tagil dismissed his claim

The applicant lodged an appeal with ORG . On DATE the ORG rejected his appeal , stating that it should be lodged through the first - instance court . The regional court also noted that the applicant could request that the time - limit in respect of the appeal be re - set .

On DATE the applicant lodged his appeal with the firstinstance court . Instead of requesting that the time - limit in respect of his appeal be re - set the applicant asked the court to restore his case to the list of pending cases . On CARDINAL DATE ORG refused to examine the appeal as belated .

The applicant appealed against this decision . However , he once again lodged his appeal with ORG instead of the first - instance court . His appeal statement did not contain a request for the missed timelimit to be re - set . ORG dismissed the applicant ’s appeal .

On DATE the applicant received a letter from the ORG ; the letter was opened by a member of the remand prison staff .

The applicant lodged a claim for compensation . By a final decision of DATE ORG dismissed his claim . The court stated that NORP law did not prohibit the opening of incoming correspondence from the ORG .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , first Mr J. ORG and , subsequently , PERSON , both of ORG .

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

On an unspecified date the applicant ’s mother was granted , by way of an administrative decision , the right to a protected lease of an apartment located in a building owned by the PERSON municipality . The applicant had lived in this apartment since DATE . It appears that he moved out in DATE following his marriage ( see paragraph CARDINAL below ) .

NORP In DATE the applicant ’s father signed a tenancy agreement with the municipality , which replaced the earlier administrative decision . The agreement stipulated that other tenants would be the applicant , his mother and his brother .

In DATE the applicant ’s brother and father , who apparently had both been in conflict with the applicant , instituted proceedings to strike out the registration of the applicant ’s permanent residence in the apartment on the ground that he did not live there . According to the applicant , in those proceedings his mother confirmed that he has been living in the apartment . On DATE the Mayor of ORG refused the request .

The applicant ’s father died on an unspecified date .

On DATE the applicant ’s mother died . The applicant ’s brother was recognised as a successor to the tenancy agreement .

The applicant requested that the municipality recognise him also as a successor to the tenancy agreement . This was refused by a letter of DATE on the ground that the applicant did not comply with the requirement for such a succession set out in section CARDINAL of ORG DATE ( “ the DATE LAW ) since he had not lived in the apartment . At the same time the municipal housing administration instituted proceedings to strike out the registration of his permanent residence in the apartment .

On DATE the municipal administration reiterated their refusal to sign a tenancy agreement with the applicant .

On an unspecified date in DATE the applicant was allegedly forced to leave the apartment due to the aggressive behaviour of his brother .

The Government submitted that according to the Mayor of ORG ’s internal inquiry the applicant had not been living in the flat for DATE . They contended that this fact had been confirmed by the applicant during his interview before ORG on DATE .

In consequence of the above - mentioned internal inquiry , on DATE the Mayor of PERSON gave a decision striking out the registration of the applicant ’s permanent residence in the apartment . The Mayor , having regard to the evidence of CARDINAL residents of the building and the applicant ’s brother , established that the applicant had not been living in the apartment for DATE . The applicant confirmed this fact , but stated that he had been prevented from occupying the flat by his brother . On DATE the Governor of GPE upheld the Mayor ’s decision . He noted that the applicant had not attempted to use legal remedies to recover the occupation of the apartment . The applicant appealed . On DATE ORG dismissed his appeal . It emphasised that the act of registration was solely a technical act confirming the fact of residence in the flat and did not concern the right to a given dwelling .

On DATE the applicant brought an action against the municipality , claiming that he should be recognised as a successor to the tenancy agreement after his mother ’s death . On DATE the ORG gave a judgment in default , allowing his claim . The municipality lodged an objection against that judgment .

On DATE the ORG upheld the judgment in default and confirmed that the applicant was the successor in respect of the tenancy agreement . Neither party filed an appeal against that judgment .

On DATE the applicant requested the PERSON municipality to take steps to make the judgment operational by concluding a tenancy agreement with him .

In a letter of DATE the municipality stated the following :

“ In reply to your letter and with reference to the attached judgment of DATE , I should inform you that under that judgment you became your mother ’s successor in respect of the tenancy agreement , but that it is impossible to sign such an agreement with you .

This is so because an internal enquiry showed that you had not been living in that apartment on a permanent basis . This has already resulted in the decision of the Mayor striking out the registration of your permanent residence in the apartment .

Consequently , pursuant to LAW of DATE on the protection of the rights of tenants , housing resources of municipalities and amendments to LAW , the municipal office hereby gives DATE notice in respect of the agreement which you obtained under the judgment referred to above , the agreement expiring on DATE . The factual basis for the termination of the agreement is the fact that you have not been living in this apartment for a period longer than DATE . ”

On DATE the applicant lodged an action with the ORG in which he sought a declaration under LAW that a tenancy agreement existed between him and the municipality .

On DATE the court gave a judgment in default and allowed the applicant ’s claim . The municipality filed an objection to that judgment . On DATE the ORG upheld the judgment in default . It appears that subsequently the judgment became final and enforceable .

On DATE the applicant requested the ORG municipality to sign a tenancy agreement with him , having regard to the final judgment of CARDINAL DATE . He also requested the municipality to evict his brother from the apartment .

On DATE the municipality informed the applicant that it recognised him as a tenant in accordance with the judgment of CARDINAL DATE . It further informed the applicant about the significant rent arrears in respect of the apartment and set a time - limit to pay them . The applicant ’s brother was also requested to clear the rent arrears as a joint tenant .

The applicant replied that on DATE the municipality had refused to recognise him a successor to the tenancy and that subsequently the registration of his permanent residence in the apartment had been struck out . In those circumstances the applicant could not occupy the apartment . He requested the municipality to seek payment of rent arrears from his brother who had been the sole occupant of the apartment .

On DATE the municipality informed the applicant that it had initiated the procedure with a view to terminating the tenancy agreement since the rent arrears had not been paid . On DATE it informed the applicant that it did not have legal means to reinstate his possession of the apartment . On DATE the municipality terminated the tenancy agreement with the applicant and his brother with effect from DATE .

On DATE and DATE the municipality again confirmed that the applicant and his brother were the lawful tenants . It underlined that there were no obstacles to the applicant ’s use of the apartment occupied by his brother in the absence of a written tenancy agreement . The signing of the written agreement had been postponed until the time when the applicant and his brother cleared the rent arrears .

On DATE the applicant requested the Mayor of ORG to authorise the registration of his permanent residence in the apartment . On CARDINAL DATE the request was dismissed on the grounds that the applicant had not lived in the apartment for DATE . That decision was upheld on appeal .

On DATE the municipality filed an action against the applicant and his brother with the Wrocław ORG , seeking payment of rent arrears . On DATE the court issued an order for payment against the applicant and his brother . The applicant filed an objection to the order . The municipality submitted in the proceedings that it was the applicant ’s brother who had refused to allow the applicant ’s access to the apartment . The municipality had no legal means to resolve the family conflict and it was up to the applicant to institute proceedings for repossession .

On DATE the ORG dismissed the municipality ’s action against the applicant . It found that the municipality had consistently obstructed the applicant in taking possession of the apartment . The court noted firstly that the municipality had struck out the registration of his permanent residence in the apartment which had had adverse effects on the applicant ’s ability to occupy the apartment . The applicant ’s brother had used the lack of the applicant ’s registration as a pretext not to let the applicant into the apartment . Secondly , the municipality had not recognised the applicant as the successor to the lease and thus had forced him to assert his rights in court proceedings . Thirdly , the municipality had refused to confirm in writing the conditions of the tenancy agreement . Consequently , the applicant had not known his obligations as a tenant , in particular as regards the amount of his rent . The court found that since the municipality had not respected its obligations under the tenancy agreement towards the applicant it was not entitled to claim rent from him .

The municipality appealed . On DATE the ORG dismissed the appeal .

On DATE the municipality filed an action with the Wrocław ORG against the applicant and his brother , seeking their eviction . On DATE the ORG gave judgment . It ordered the applicant ’s brother to vacate the flat and ruled that the municipality was under an obligation to provide him with social housing .

The court dismissed the action against the applicant . It noted that the applicant ’s right to the lease of the flat had been confirmed in its final judgment of DATE . The court further noted that in accordance with the final judgment of ORG of DATE the applicant had not been obliged to pay the rent arrears . The court found invalid the municipality ’s notice of termination of the tenancy agreement issued on the grounds of the failure to pay the rent arrears and confirmed the applicant ’s right to use the flat . The municipality did not appeal .

On CARDINAL DATE the municipality summoned the applicant to sign an appendix to the tenancy agreement to the apartment , specifying him as a tenant .

On an unspecified date the applicant complained to the municipality about its failure to provide social housing to his brother in accordance with the Wrocław Śródmieście District Court ’s judgment of DATE . In its reply of DATE the municipality informed the applicant that it did not question his right to the lease of the apartment and did not refrain from confirming the lease in writing . In any event , the applicant was informed that his right to the apartment did not depend on the written confirmation thereof . With regard to the eviction of his brother , the municipality informed the applicant that due to a significant number of eviction judgments and the limited stock of municipal social housing it could not immediately satisfy his request to have his brother evicted .

In his reply of DATE , the applicant informed the municipality that he decided to refrain from signing the agreement for the duration of the proceedings before the ORG .

On DATE the applicant brought an action against the municipality in ORG . He sought compensation for rendering him long - term homeless in connection with the municipality ’s failure to enforce CARDINAL final judgments . The applicant submitted that he had succeeded to the tenancy agreement after his mother ’s death on DATE . He had been expelled from the flat by his brother who was an alcoholic . Subsequently , the municipality had struck out the registration of his permanent residence in the apartment and refused to sign a tenancy agreement with him . The applicant claimed that as a result he could not find employment for a period exceeding ten years .

On DATE ORG dismissed the applicant ’s action . It found that the applicant had failed to demonstrate that he had suffered the alleged damage , namely the long - term homelessness and the lack of employment as a result of the municipality ’s actions . With regard to the alleged homelessness , the court noted that the applicant had succeeded to the tenancy agreement after his mother ’s death . The municipality had initially refused to confirm the content of the tenancy agreement and had struck out the registration of his permanent residence in the disputed apartment . However , it did not result from these circumstances that the applicant had become homeless . The court noted that the applicant had not demonstrated that he had been homeless in the period of DATE preceding the lodging of his action . The court established that the applicant had moved out of the flat in DATE after his marriage . Initially , he had lived with his wife at his parents - in - law and subsequently in an apartment located at FAC . After DATE he had moved out following a conflict with his wife . Subsequently , he had rented flats , lived at his sister and at an allotment . The applicant had not attempted to move into the apartment at issue for DATE on account of the conflict with his brother . Currently , he was living in a garden hut owned by his son - in - law . The court concluded then that the applicant had not been a homeless person at the relevant time .

With regard to his alleged unemployment , the court established that up until DATE the applicant had run a transportation firm . Subsequently , he had worked as a security guard and helped his son - in - law with the latter ’s business . He had registered as an unemployed only on DATE and had lost the right to an unemployment benefit on DATE . Having regard to the above , the court found that the applicant had been able to rent a flat or a room in order to avoid the alleged homelessness . In addition , besides his brother , the applicant had other close family , including his wife , CARDINAL adult children and QUANTITY sisters .

The court also found that regardless of the issue of damage , the applicant had not proved that the municipality had acted unlawfully in his case . It noted that the applicant had been deprived of the possibility of living in the apartment at issue after his GPE death because of the conflict with his brother . The applicant admitted this in the proceedings . The applicant had reproached the municipality for having struck out the registration of his permanent residence in the apartment ; however , the court observed that this decision had been upheld on appeal as having been made in accordance with the law . In addition , the court noted that the applicant had not been living in the apartment for DATE . The allegation that the municipality had not signed a tenancy agreement with the applicant had been also unjustified . The court noted that the applicant had succeeded to the tenancy agreement after the death of his mother by operation of the law . The lack of written confirmation of the applicant ’s tenancy agreement had had no effect on the existence of the applicant ’s right to the apartment . In any event , the municipality had invited the applicant to sign the relevant agreement but the applicant had so far not responded to the invitation .

Lastly , the court found that the applicant had not established a causal link between the actions of the municipality and his situation in DATE . In particular , the municipality could not be held responsible for the applicant ’s situation , such as the conflict with his brother as well as the applicant ’s marital problems and the moving out of the flat which he had shared for DATE with his wife .

The applicant appealed .

On DATE ORG dismissed the applicant ’s appeal . It accepted the facts as established by ORG .

ORG confirmed that the applicant had not demonstrated that the municipality had acted unlawfully . It noted that the applicant had blamed the municipality for its inactivity in making the apartment available to the applicant . However , the tenancy agreement in respect of the disputed apartment had been in the name of the applicant and his brother , while it was only the latter who had been the sole occupant of the apartment . ORG noted that the municipality had had no powers to compel the applicant ’s brother to allow the applicant ’s access to and use of the apartment . It further noted that if the applicant ’s brother had prevented him from occupying the apartment to which he had been entitled under the tenancy agreement , the applicant should have directed his claims against the brother and not against the municipality .

DATE to DATE housing matters were subject to a high degree of state control under successive provisions of housing legislation . The most important characteristic of this system , a so - called “ special lease scheme ” , was that a lease was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant . Under these protected tenancies , the tenants paid a controlled rent and the owners could not terminate the lease by giving notice to the tenant . The special lease scheme was also applicable to houses owned , until DATE , by ORG , and after the reform of the local administration , by the municipalities .

The “ special lease scheme ” was abolished under LAW of DATE ( LOC o najmie lokali mieszkalnych i dodatkach mieszkaniowych ) , ( “ the DATE LAW ) which entered into force on DATE . However , the special lease scheme ( protected lease ) was still applicable to tenants who were allocated their apartments on the basis of administrative decisions .

Under transitional provisions of the DATE Law , lease agreements which had originated in administrative decisions given in the past under the special lease scheme were to be regarded as contractual leases concluded for an indefinite period and governed by the provisions of the DATE Law . The CARDINAL Act maintained , albeit with slight modifications of wording , the rules concerning the protection of tenants against termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease .

Section CARDINAL(CARDINAL ) of the DATE Act read :

“ CARDINAL . In the event of a tenant ’s death , his or her descendants , ascendants , adult siblings , adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation , shall , on condition that they lived in the tenant ’s household until his or her death , succeed to the tenancy agreement and acquire the tenant ’s rights and obligations connected with [ the lease of ] the flat , unless they relinquish that right to the landlord . This provision shall not apply to persons who , when the [ original ] tenant died , had title to another residential dwelling .

NORP In cases where there is no successor to the tenancy agreement , or where the successors have relinquished their right , the lease shall expire . ”

In DATE parliament adopted a new law governing housing matters and relations between landlords and tenants . The Act of DATE on the protection of the rights of tenants , housing resources of municipalities and on amendments to LAW ( LOC o ochronie praw lokatorów , mieszkaniowym zasobie gminy i o zmianie LOC cywilnego ) ( “ the DATE Act ” ) entered into force on DATE . It repealed LAW .

Under LAW ( CARDINAL ) CARDINAL of that Act , the owner of apartment may give DATE notice on the lease agreement if the tenant has not been living in that apartment for DATE .


CASE OF EUGENIA AND DOINA DUCA v. THE REPUBLIC OF MOLDOVA

Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos

NORP The case originated in an application ( no . CARDINAL/CARDINAL ) against GPE lodged with ORG under LAW ( “ the LAW ) by CARDINAL NORP nationals , PERSON and PERSON ( “ the applicants ” ) , on DATE .

NORP In a judgment delivered on DATE ( “ the principal judgment ” ) , the ORG held that there was a breach of LAW and LAW No . CARDINAL to the Convention on account of the upholding by ORG on DATE of a revision request against a final judgment of DATE , in breach of the principle of legal certainty ( PERSON and Doina PERSON v. GPE , no . CARDINAL , DATE ) . As a result of that quashing the second applicant lost all of her shares ( PERCENT ) in her company .

NORP Since the question of the application of LAW was not ready for decision , the ORG reserved it and invited the ORG and the applicants to submit , within DATE on which the judgment became final in accordance with Article CARDINAL § CARDINAL of the Convention , their written observations on that issue and , in particular , to notify the ORG of any agreement they might reach .

The applicants and the Government each submitted observations in respect of the just satisfaction .

In the meantime , after the adoption of the principal judgment by ORG , ORG reviewed its judgment of DATE and quashed it on DATE . ORG also awarded the applicants compensation of MDL CARDINAL ( the equivalent of ORG CARDINAL,CARDINAL ) for the non - pecuniary damage suffered as a result of the abusive quashing of the judgment of DATE .

The judge elected in respect of GPE , withdrew from sitting in the case ( Rule CARDINAL of the Rules of Court ) after it had been notified to the Government . On DATE , the Government , pursuant to Rule CARDINAL § CARDINAL ( a ) , informed the ORG that they were content to appoint in his stead another elected judge and left the choice of appointee to the President of the ORG . On DATE , the President of the Fourth Section appointed Judge PERSON to sit in the case . This decision was confirmed by the President of ORG after Judge PERSON , the judge elected in respect of GPE , also withdrew from sitting in the case .