Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in the town of GPE Novgorod .

On DATE ORG of LOC of the town of GPE examined the applicant ’s medical condition . Having declared him fit , they conscripted him into the army . The applicant was given the rank of junior sergeant and sent to preparatory ORG no . CARDINAL , located in the town of PERSON in LOC .

DATE , on CARDINAL DATE , he was transferred to ORG no . CARDINAL of the town of GPE of LOC .

The applicant submitted that personal relations among the servicemen of the unit were tense and violent . The applicant had panicked and decided to escape .

On DATE the applicant and junior sergeant PERSON ran away from the unit .

The command of the unit launched a search operation to find the fugitives .

On TIME CARDINAL DATE deputy commander major PERSON and captain PERSON located and apprehended the applicant and junior sergeant PERSON close to the nearby village of ORG .

According to the applicant , on their way back to the unit NORP and PERSON had threatened to execute or drown them . The threats had frightened the applicant to such an extent that he decided to escape again .

During a stopover the applicant made another attempt to escape . Shortly thereafter he was caught in a nearby swamp . The escorting officers stripped him of his clothes and put him in the cargo compartment of a military truck which brought both fugitives back to the unit .

On DATE the applicant and ORG were brought before battalion commander PERSON . , who lined up the battalion . The applicant and PERSON ‒ allegedly stripped naked ‒ were made to stand in front of the other servicemen . It does not appear that there were any female service personnel present on this occasion . The Government submitted that the applicant and PERSON had been wearing military briefs . The battalion commander publicly condemned and reprimanded them .

Thereafter the applicant was brought to the commander ’s office and was asked to prepare an explanatory note concerning the events of DATE .

The applicant stated that after he had drafted the explanatory note , the commander had ordered company commander lieutenant PERSON to load a machine gun with bullets , go outside and execute the applicant . The applicant was taken outside and placed up against a wall . Captain PERSON . aimed a machine gun at him . The applicant pleaded for mercy and promised “ to become the best sergeant in the unit ” , whereupon PERSON . brought him back into the commander ’s office . At this moment the applicant heard a machine gun being discharged and thought that PERSON had just been executed .

NORP Some time later the battalion commander ordered officer PERSON to dress the applicant in a military protection suit . The suit consisted of a mask , protective cloak , rubberized stockings and gloves and was unsuitable for continuous use in hot weather . The applicant ’s fellow servicemen then shaved his head and warrant officer PERSON painted a CARDINAL - pointed star on his head using brilliant green antiseptic . A fellow serviceman then delivered a few blows to the applicant ’s body and head with an army belt buckle . Then another soldier put a leash around his neck and walked him around the training ground . The applicant was also threatened with sexual violence if he ever decided to escape again .

According to the applicant , the following night after lights - out junior sergeant PERSON and private soldier PERSON had removed the leash from his neck , attached him to a pole in the centre of the tent which served as their sleeping quarters , and made him read aloud the sergeant ’s military manual , using a lighter and a pocket lamp for light . At TIME the applicant was further intimidated by PERSON , who told him that his friends in the town of PERSON would find and rape him when his military service was over .

The applicant stated that TIME he was again ordered to put on the military protection suit , the collar and the leash and escorted by junior sergeant PERSON . for breakfast dressed in this way . He was then taken to the battalion commander . The applicant had asked him for permission to take off the suit , the collar and the leash . The commander said he could do so as soon as he had washed the star off his head . For TIME the applicant washed his head in a river flowing nearby , using only his hands and the sand .

On DATE ‒ surveillance of the applicant having been relaxed ‒ he escaped and , this time , reached his family in the town of PERSON .

According to the applicant , after his escape , the battalion commander PERSON . had ordered his fellow servicemen to keep silent about the ill - treatment .

On DATE the applicant complained of his ill - treatment to the Soldiers’ ORG of ORG ( « PERSON областной комитет солдатских матерей PERSON ) .

On DATE the applicant complained to ORG of ORG ( “ ORG Office ” ) about his ill - treatment in ORG . In his claim he provided an account of the alleged events , stating that his fellow servicemen ORG . , PERSON . , PERSON . , PERSON . , PERSON . and ORG . could confirm the facts of his ill - treatment and “ hazing ” .

NORP ORG opened a preliminary inquiry into his allegations and held that the applicant should be transferred to another military unit pending the outcome of the proceedings .

On DATE ORG ordered an expert psychiatric examination of the applicant .

The expert examination of the applicant was conducted DATE in ORG No . CARDINAL of the GPE LOC .

On DATE ORG of ORG diagnosed the applicant with “ a personality disorder of the emotional unstable type , with variable amelioration , contracted during his military service ” and held that he was “ fit with restrictions ” for military service .

Owing to the above diagnosis , the applicant was prematurely discharged from the army .

ORG joined the inquiry proceedings into the applicant ’s complaints of CARDINAL DATE with the inquiry into similar complaints by junior sergeant PERSON dated DATE . The case was then sent for investigation to ORG of FAC ( “ ORG Office ” ) .

On DATE an investigator of ORG issued a refusal to open a criminal case . In this decision it referred to statements given by the alleged perpetrators , including the battalion commander PERSON . , deputy commanding officer major PERSON , captain PERSON , lieutenant PERSON , captain PERSON . , warrant officer PERSON and junior sergeant PERSON . , and to the statements of other servicemen who had been questioned concerning the applicant ’s allegations . The refusal reads :

“ In the course of the inquiry carried out into [ the applicant ’s ] request , the investigating authorities have established the following :

Junior sergeant [ ORG ] claimed that the complaints of CARDINAL DATE and DATE concerning ill - treatment were false . No acts of ill - treatment against him or [ the applicant ] had taken place either in the period under examination ( CARDINAL and DATE ) or during their military service in the [ Military Unit ] . He did not see any injuries such as scratches , bruises or haematomas on [ the applicant ’s ] body . According to junior sergeant [ ORG ] , [ the applicant ] gave the false statements so as to avoid criminal liability for the unauthorised leave from the [ Military Unit ] on DATE . In private conversations [ the applicant ] had often remarked that he did not want to serve in the army . The simulation of psychiatric problems and the false statements about illtreatment are in the junior sergeant ’s opinion no more than a means of avoiding military service . During questioning the latter also stated that [ the applicant ] had no psychiatric problems and that during his military service he had not shown signs of any unusual behaviour .

Junior sergeant [ ORG ] also stated that on DATE during his stay in hospital he had been contacted by [ CARDINAL ] representatives of a NORP NGO , “ ORG ” ( “ FAC право ” ) . They showed him [ the applicant ’s ] statements of DATE and promised to assist with his transfer to a military unit in his place of residence in exchange for giving similar statements capable of confirming [ the applicant ’s ] allegations . As he very much wanted to perform his military service close to his home in GPE , he accepted their offer . Later he realised that it was a mistake , because he had no intention of slandering anybody . He explained that all the facts mentioned in his [ complaints ] of DATE were false . Neither he nor [ the applicant ] had been ill - treated by their fellow servicemen . To confirm his statements he presented the business card which the [ NGO representative ] had given to him ...

The battalion commander [ ORG . ] stated that the allegations of ill - treatment mentioned in the statements of DATE and DATE were false . He further stated that he had not seen any scratches , bruises or haematomas on [ the applicant ] or junior sergeant [ ORG ] . Moreover , they had not lodged any complaints about the illtreatment allegedly committed by the servicemen of the [ Military Unit ] . According to the battalion commander [ PERSON . ] , [ the applicant ] had made up the allegations either to avoid criminal liability for the unauthorised leave from the [ Military Unit ] on DATE , or to avoid military service by way of falsification of his mental problems . He noted that [ the applicant ] was of sound mind and that he had never shown signs of any unusual behaviour . The battalion commander [ PERSON . ] speculated that [ the applicant ] simply did not want to continue his military service because it was so hard . According to [ PERSON . ] , only negative references could be provided on account of [ the applicant ’s ] personality . For instance , [ the applicant ] had left his place of service several times without the authorisation of his superiors . Although he followed the orders of his commander , he required constant supervision . He was a sly and dodgy person , who did not understand the meaning of his military duty . During private conversations [ the applicant ] expressed his intention of leaving the [ Military Unit ] .

Deputy commanding officer major [ A. ] , captain [ K. ] , lieutenant [ S. ] , captain [ PERSON . ] and warrant officer [ PERSON ] gave statements which were essentially similar to the statements of the battalion commander [ PERSON . ] .

During the inquiry the investigative authorities also questioned [ PERSON . , a witness on the applicant ’s behalf ] . He stated that [ the applicant ’s and PERSON ’s ] statements of DATE and CARDINAL DATE had been false and that [ the applicant ] had given them to avoid criminal liability for the unauthorised leave from the [ Military Unit ] on DATE . He also stated that between CARDINAL DATE and DATE he had served with [ the applicant ] in the military unit of ORG LOC . During this period [ the applicant ] ‒ without permission ‒ left the military unit for DATE . Later , he returned of his own volition and explained that he did not like serving in the army . According to [ the applicant ’s ] confession , he returned only because of his father , with whom he had had an argument [ on account of his refusal to serve in the army ] . [ The applicant ] was a smart , sly and a dodgy person who was able to avoid military service by making up a good and credible excuse . [ PERSON . ] stated that [ the applicant ] was a mentally sound person who did not show signs of unusual behaviour . [ The applicant ] showed a negative attitude towards his military duty and was an irresponsible person who did not like to work . He did not carry out his commander ’s orders promptly and always needed to be under supervision . In private conversations he mentioned that he wanted to leave military service and go to the town of GPE to earn some money .

The [ applicant ’s and junior sergeant ’s ORG ’s ] fellow servicemen [ PERSON . , PERSON . , PERSON . , ORG . , PERSON . , and junior sergeant PERSON . ] , who were separately interviewed by the investigator , gave similar statements .

From the above it is apparent that [ the allegations of the applicant and junior sergeant PERSON ] ... remained unconfirmed ... Accordingly , the request to institute criminal proceedings should be dismissed owing to the absence of the alleged criminal offences ... ”

With assistance from the NGO “ Mothers’ Right ” , the applicant challenged the decision of DATE before a higher authority . The appeal claim was supported by statements made by his fellow serviceman PERSON . , who in written submissions dated DATE confirmed the applicant ’s allegations and stated that all the soldiers of ORG had been intimidated by the battalion commander PERSON . , who forbade them to give true statements , and by warrant officer PERSON , who threatened the witnesses concerned .

On DATE ORG of the North - Caucasus Military Circuit quashed the decision of DATE . Without citing specific shortcomings , it stated that the investigator ’s conclusions had been baseless . In its relevant part this decision reads :

“ On DATE [ the lawyer of ORG Right ] appealed against the decision of DATE .

Examination of the appeal statements has shown that the [ investigator from ORG ] did not perform a thorough inquiry . Accordingly , his decision must be quashed as ill - founded .

From the case file it is apparent that the circumstances ... surrounding [ the apprehension of the applicant ] and junior sergeant [ ORG ] by deputy commanding officer major [ A. ] and captain [ PERSON ] after their escape from [ ORG ] and the subsequent ill - treatment [ of the fugitives ] were not sufficiently established . Consequently , the reasoning underlying the decision of DATE is deficient .

From the above it is apparent that [ the investigator ’s ] conclusion that the [ applicant ’s ] complaints of ill - treatment in respect of him and [ ORG ] lacked a sound basis and was premature . Accordingly , the decision of DATE is groundless . ”

In the context of the second round of the inquiry , the investigator conducted additional interviews with junior sergeant PERSON , the battalion commander PERSON . , commanding officer major PERSON and captain PERSON regarding the applicant ’s apprehension , undressing , and delivery to ORG . Their additional statements were summarised as follows :

“ During the additional interview with junior sergeant [ ORG ] , the latter explained that on DATE following his unauthorised leave on DATE , commanding officer major [ A. ] and captain [ PERSON ] had apprehended them near ORG , put them in a NORP truck , and brought them back to the [ Military Unit ] . On their way to [ ORG ] [ the applicant ] asked [ ORG ] to escape with him , but the latter refused . [ The applicant ] attempted to escape on his own , but was arrested by the escorting officers . After the unsuccessful attempt to run away , commanding officer major [ A. ] ordered them to take all their clothes off . They remained only in military briefs . This order was given to prevent their attempts to abscond . These events took place during DATE , and so he felt comfortable wearing only military briefs , and his human dignity was not humiliated . His statements of DATE had been drafted following a sample prepared by [ the applicant ] and contained the false allegation that they had been standing completely naked ...

During his additional interview , battalion commander [ ORG . ] stated that on DATE CARDINAL TIME he had lined up his battalion . At this time the escorting officer brought [ the applicant ] and junior sergeant [ V. ] to him . On DATE they had left the [ Military Unit ] without permission and were later arrested near the village of ORG . The escorting officers stated that after the arrest [ the applicant ] and [ junior sergeant PERSON ] had been undressed and left with only their military briefs on . This was done to prevent them from fleeing . After this , the battalion commander [ PERSON . ] had ordered the [ applicant ] and junior sergeant [ ORG ] to put their clothes back on . He talked to the fugitives and reprimanded them .

During the additional interview with commanding officer major [ A. ] , the latter confirmed that [ the applicant ] and [ ORG ] had been brought onto the site of [ ORG ] wearing only military briefs . After their arrival they had been made to stand in front of their battalion formation . The commanding officer had ordered them to put their clothes back on and had talked to them . [ The applicant ] and [ ORG ] were reprimanded .

When questioned further , captain [ PERSON ] noted that on DATE , after the arrest of [ the applicant ] and [ ORG ] near the village of ORG , [ the applicant ] had attempted to abscond . After this [ the applicant ] had been caught by the escorting officers , who ordered him to adopt “ position no.CARDINAL ” , i.e. to take all of his clothes off and remain only in military briefs ... ”

On DATE , having regard to the above statements and evidence previously obtained , the investigator refused to open a criminal case to examine the applicant ’s allegations . He confirmed his previous findings about the lack of criminally punishable offences . As regards the episodes of the applicant ’s undressing , the investigator reasoned as follows :

“ There is no indication of any criminal offence under LAW of GPE [ “ Abuse of power ” ] in the actions of [ PERSON ] , [ A. ] and [ PERSON . ] ... , because the order given to [ the applicant ] and junior sergeant [ PERSON ] to remove their clothes was issued solely with a view to preventing their escape . The commander of the battalion had not humiliated [ the applicant ] when making him stand wearing only military briefs in front of the battalion formation because later the commander had ordered him to put all his clothes back on . [ The applicant ] was standing CARDINAL - naked in front of the battalion formation for a short period of time . The actions of captain [ PERSON ] and commanding officer [ A. ] constituted a minor offence , which entailed no social danger . Accordingly , [ the applicant ’s ] request to institute criminal proceedings against them should be dismissed . The circumstances of the present case do not indicate any appearance of a criminal offence [ within the meaning of LAW of GPE ] . ”

On DATE the applicant ’s lawyer challenged the decision of CARDINAL DATE in court .

On DATE the impugned decision was quashed by ORG of FAC , which held the following :

“ The examination of the impugned decision shows that [ the investigator ] performed the inquiry in a perfunctory manner . His decision was premature and ill - founded .

In particular , he did not interview all of the potential witnesses . It is accordingly impossible to render a well - founded decision concerning the impugned ... events .

Taking into account the above I conclude that the refusal to institute criminal proceedings issued by [ the investigator ] on DATE must be quashed as illfounded . ”

On DATE ORG referred to the decision of DATE , having terminated court proceedings in connection with the applicant ’s complaint .

The case was returned for additional investigation .

DATE and DATE the investigator questioned CARDINAL servicemen from ORG . They did not confirm any of the applicant ’s allegations .

On DATE on the basis of their statements and the previously collected pieces of evidence , the investigator refused to institute criminal proceedings . The investigator did not provide the content of the newly added statements in his decision of DATE and it therefore contained no additional information on the matter but essentially read the same as the previous one .

According to the applicant , he received a copy of this decision on CARDINAL DATE and then challenged it in court .

On DATE the impugned decision was quashed by a higher investigative authority , which stated that

“ Although the inquiry was performed in a comprehensive manner , the investigator did not take into account the public reaction [ in response to this case ] . He should have ordered the military counter - intelligence services to perform an inquiry into the allegations [ of the applicant and ORG ] . [ Accordingly ] , the impugned decision is premature and ill - founded .

Taking into account the above , I conclude that the refusal to institute criminal proceedings issued on DATE must be quashed as ill - founded . ”

The court proceedings were terminated and the case was sent back to the investigating authorities for further investigation of the matter .

During this round of the investigation the investigator performed an “ additional inquiry ” which “ confirmed the statements made by [ the applicant ’s ] fellow servicemen ” .

On DATE the investigating authorities again refused to open a criminal case in respect of the events . In addition to the reasoning which they had used before , they relied on the results of the “ additional inquiry ” which had established “ no indication of criminal events ” .

On DATE , after his military service was over , junior sergeant ORG contacted ORG and stated that the initial statements he had made concerning his ill - treatment and the illtreatment of the applicant had been truthful . He explained that his later statements had been made under pressure from the command of ORG . In his statements he mentioned that after the escape of DATE he had been beaten by the officers and had been kept in hospital for treatment in this connection . These statements were sent to the investigating authorities .

On DATE the higher investigating authorities quashed the decision of CARDINAL DATE , providing a detailed list of the established defects of the inquiry . In its relevant part the decision read :

“ Despite the recommendations of [ the higher authority ] ordering the military counter - intelligence services to conduct an inquiry into the allegations of the [ applicant ] and [ ORG ] , the decision of CARDINAL DATE was issued in the absence of such an inquiry .

According to the claim which was brought [ by the applicant ] under LAW ORG , [ Gal . ] and [ ORG ] had directly witnessed the alleged ill - treatment . However , the competent authorities did not conduct a fresh interview with [ ORG ] and never interrogated [ Gal . ] .

The inquiry at issue was not comprehensive since the investigating authorities did not investigate [ ORG ’s ] alleged ill - treatment ... of DATE ...

In the circumstances of the present case it is impossible to issue a lawful decision with proper reasoning without taking additional investigative steps , including the conduct of an inquiry carried out by the military intelligence services and the questioning of [ Gal . ] , [ ORG ] and doctors attached to the military units . The investigating authorities must also assess the allegations which were made by [ ORG ] , and [ the applicant ] in their statements of DATE and DATE respectively . The former servicemen of the [ Military Unit ] should be re - interviewed too , if necessary . ”

The case was remitted to the investigator for an additional investigation .

In the context of this round , the competent authorities studied the evidential material from an inquiry which had been opened into ORG . ’s allegations that officers who were pointed out by the applicant had illtreated and “ hazed ” him and other serviceman of ORG on several occasions . This inquiry resulted in a decision dated DATE not to open a criminal case .

It does not seem that the investigative authorities questioned ORG . or complied with any of the recommendations set out in the decision of CARDINAL DATE .

In their decision of CARDINAL DATE not to open a criminal case , they repeated their previous arguments , adding that the allegations made by ORG . were refuted by the results of the investigation of DATE .

The parties did not provide any documents concerning subsequent developments . From the Government ’s submissions of CARDINAL DATE it is apparent that on DATE the higher investigating authorities again quashed the decision of CARDINAL DATE and remitted the case for additional investigation , noting that the investigator had again failed to question NORP . , to conduct an additional interview with junior sergeant PERSON , to perform an inquiry into ORG ’s medical treatment of DATE and to carry out other investigative actions .

The case file contains no information concerning the further development of the investigation .


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

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

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

On DATE the GPE am ORG issued a penal order against the applicant . Having regard to the written submissions the applicant had made on the charges to the prosecution , the court found the applicant guilty of withholding and embezzlement of employee salaries and sentenced her to a fine of CARDINAL DATE rates of ORG CARDINAL .

According to the record of service , a form containing several options as to the way in which court mail was served , which was issued by a courier and returned to ORG , the courier had attempted to hand over the penal order to the applicant at her residence on DATE at CARDINAL p.m. As this had not been possible , the courier had served the penal order on the applicant by placing it in the mailbox appurtenant to her residence ( LAW , see paragraph CARDINAL below ) .

On DATE the applicant filed an objection against the penal order with the GPE am ORG and applied for the reinstatement of the proceedings . She argued that her objection was not time - barred as the penal order had not been served on her on DATE . She had only learnt about the existence of a penal order issued against her on DATE when she had found in her mailbox a bill of the court cashier requesting her to pay the fine imposed in the penal order . On calling the court cashier , she had been informed of the order ’s alleged service on DATE .

The applicant claimed that she was sure that no penal order had been served on her on DATE . She stated that her counsel , PERSON PERSON , and her husband had been at a court hearing at ORG on DATE and had therefore come to visit her at her house on DATE . In the afternoon she had bade farewell to her counsel . When accompanying him to the front gate , she had checked her mailbox for her DATE mail in his presence . She had found neither a penal order nor a notice that a penal order had been deposited in another place .

On DATE the applicant ’s counsel supplemented the applicant ’s submissions . He claimed that he , the applicant , the applicant ’s mother who was living in the same house as the applicant and the applicant ’s husband who lived in GPE had all been at the applicant ’s house at the time the penal order had allegedly been served . Counsel and the applicant had returned to the applicant ’s residence at TIME after having attended a hearing at FAC . The applicant ’s husband had arrived shortly before them and had been waiting for them , together with the applicant ’s mother .

The applicant ’s counsel explained that no one had rung the doorbell to hand over the penal order while they had been at the applicant ’s residence . They would have noticed the doorbell ringing , as the applicant had dogs , which were outside and would have barked . At TIME they had all left the house . At that moment the applicant had taken the mail out of her mailbox . She had immediately checked the contents . There had been no official letter from a court . Such a letter would have stood out and would therefore have been noticed by the persons present , as official court letters came in bright yellow envelopes . The applicant ’s husband , counsel and the common daughter of counsel and the applicant had then left .

NORP The applicant ’s counsel further submitted that the private postal service company J. , which had been in charge of the delivery of official court mail for the GPE am ORG , was known for its unreliability . In DATE , hence shortly after the alleged delivery , the company had had to register as insolvent .

The applicant ’s counsel added to his submissions the affirmations in lieu of an oath of the applicant ’s mother , the applicant ’s husband and himself confirming his submissions . The applicant ’s mother stated , in particular , that she had paid special attention when her daughter took the mail out of the mailbox as , owing to the fact that they lived in the same house , part of her mail was sometimes put into her daughter ’s mailbox . The applicant ’s husband declared that when the applicant had taken out the mail he had paid special attention because he had formerly also lived at that address and sometimes mail addressed to him was still sent there .

On DATE the GPE am ORG rejected the applicant ’s objection against the penal order as inadmissible and dismissed her application for reinstatement of the proceedings . The court considered it proved that the penal order had been served on the applicant on DATE at TIME as was certified by the record of service . The applicant had therefore failed to file her objection , which was received by the court on DATE , within the DATE time - limit and the penal order had hence become final ( see paragraph CARDINAL below ) .

ORG was also of the view that there was no reason to grant the applicant reinstatement of the proceedings , as it was not apparent why the applicant had been prevented , through no fault of her own , from submitting her objection against the penal order within the DATE timelimit after the delivery of DATE .

The court found that the record of service had probative value for the fact that the penal order had been put into the applicant ’s mailbox by the courier on DATE ( LAW , see paragraph CARDINAL below ) . In accordance with the settled case - law , this could only be disproved if facts were presented that convinced the court that there was no possibility that the facts certified by the record of service were correct . The applicant had not been able to furnish the court with such counter - evidence .

In its assessment of evidence , the GPE am ORG had regard to the written statement of the courier who had delivered the applicant ’s penal order , whom it had had interviewed by the police as a witness . The courier had explained that she had been registered with J. company to help her husband with the delivery of the court mail since DATE . When asked by the police to describe how she had delivered official court letters she had stated that official court letters had always been in yellow envelopes . She confirmed that she always rang the doorbells of the addressees . If they did not respond she would deposit a “ letter of notification ” ( GPE ) in the mailbox . She confirmed that the signature on the record of service concerning the applicant was hers , the date and the time had been filled in by her husband . She did not specially remember either the service on DATE or the applicant ’s house . When cautioned that she did not have to respond to questions if there was a risk that she might incriminate herself , she had confirmed that she was sure she had served the mail correctly or left a “ notice ” ( ORG ) .

ORG concluded that the courier had testified that she had always served the official court mail in accordance with the rules . Moreover , when asked by the police , the GPE am GPE branch of J. company had confirmed that no irregularities were known to the company with regard to the service of the court mail . The courier had had no incentive to embezzle the applicant ’s mail .

The court considered , in contrast , that the story described by the applicant to disprove the service of the penal order seemed fabricated . It took into consideration that the declarations in lieu of an oath all came from persons who were close to the applicant and who had a considerable interest in the outcome of the criminal proceedings against her . It further noted that the applicant had not mentioned all the persons who had allegedly been present when she checked her mail in her first submission of DATE . Moreover , it was not in accordance with general experience in life for someone to check his mail in front of all his family members . As it had been proved by the record of service that the penal order had been put into the applicant ’s mailbox , potential shortcomings by the courier ’s failure to ring the doorbell first – which according to the applicant would have resulted in her dogs barking , which they allegedly had not done at the relevant time – would , in any event , have been remedied by the actual service .

On DATE the applicant , represented by her lawyer , appealed against the decision of the GPE am ORG . She claimed , in particular , that according to articles in a national newspaper , the unreliability of the postal service company ORG had been revealed , inter alia , by ORG and ORG and that an GPE local newspaper had reported that court mail had been found in a refuse shed .

NORP The applicant further pointed out that the courier ’s witness statement contradicted the record of service . The courier had described the service of the penal order by way of putting a written notice into the addressee ’s mailbox , which constituted a substituted service in accordance with LAW of LAW ( see paragraph CARDINAL below ) . In contrast , the record of service certified service by way of placing the penal order itself in the applicant ’s mailbox , which constituted substituted service in accordance with LAW ( see paragraph CARDINAL below ) .

On DATE the GPE am ORG dismissed the applicant ’s appeal against the decision of the GPE am ORG . The court , essentially endorsing the reasons given by ORG , confirmed ORG finding that the penal order had effectively been served on the applicant on DATE when placed in the applicant ’s mailbox ( LAW , read in conjunction with LAW , see paragraphs CARDINAL below ) .

ORG considered that the applicant had not furnished the court with sufficient counter - evidence . The court did not have to decide whether J. company had been reliable in all cases . In the case before it , the courier and her husband had had no reason to commit post embezzlement and forgery of documents . The affirmations in lieu of oaths could not prove that the penal order had not been in the mailbox on DATE . The affirming persons had not testified that they had constantly paid special attention to a possible ringing of the doorbell . Furthermore , it could not be ruled out that the applicant had been inattentive when going through the mail because of the presence of guests . It was likely that the penal order had been hidden among other mail and had probably inadvertently been thrown away or simply ignored .

On DATE the applicant lodged a constitutional complaint with ORG in which she claimed that her constitutional right to be heard and her right to a fair trial had been breached in the criminal proceedings against her .

On DATE ORG declined to consider the applicant ’s constitutional complaint without giving reasons ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision was served on the applicant ’s counsel on DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention .


No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Retroactivity)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently serving a life sentence .

On DATE the GPE local prosecutor ’s office in the GPE region started an investigation into the murder of CARDINAL persons on DATE .

On DATE ORG started investigating the murder of A.

On DATE ORG of the GPE region started an investigation into hooliganism concerning NORP

On DATE the above CARDINAL investigations were joined . Several persons were suspected of committing the above crimes as a group , CARDINAL of them being the applicant .

On DATE ORG formally charged the applicant in absentia with the above crimes . He was also placed on the list of wanted persons . The same day the investigation in respect of the applicant was suspended until he was apprehended ; the criminal proceedings continued in respect of the other suspects .

On DATE , ORG convicted and sentenced PERSON , PERSON and PERSON for the above mentioned crimes .

On DATE ORG ordered the applicant ’s detention .

On DATE the applicant was apprehended by ORG in the GPE region , GPE .

On DATE the investigation was resumed after the applicant had been extradited to GPE . DATE the applicant was formally charged with participation in an organised criminal group together with PERSON , PERSON , PERSON and CARDINAL other persons , who had died in the intervening time . The applicant was accused of strangling PERSON , of killing CARDINAL persons together with PERSON in DATE and inflicting grievous bodily harm on NORP in a murder attempt , the latter crime in the context of the extortion of R ’s brother . All these crimes had been committed as a group .

On CARDINAL DATE the investigation was completed and on DATE the case was transferred to ORG .

On DATE ORG , acting as a first - instance court , found the applicant guilty of aggravated murder and banditry and sentenced him to life imprisonment .

The applicant and his lawyer appealed , considering that the applicant ’s guilt had not been proved .

On DATE ORG upheld the judgment of DATE . On DATE the applicant ’s lawyer submitted an additional appeal claiming that ORG had to apply the most favourable wording of the relevant provisions of LAW , which was that DATE and DATE when the death penalty had already been abolished and life imprisonment had not yet been introduced . ORG in its decision noted that the applicant had been sentenced correctly .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Krzysztof Wojtyczek;Pauliine Koskelo;Ksenija Turković

The applicants’ details can be found in the LOC .

These CARDINAL applicants met in DATE , and in DATE they entered into a stable and committed relationship with each other .

On DATE PERSON moved to GPE , GPE , GPE for work purposes . DATE the CARDINAL applicants decided to get married and on DATE they married in GPE .

In the meantime , on DATE , PERSON employment came to an end and as a result she was no longer entitled to a residence permit . She therefore returned to GPE and since then has been cohabiting with PERSON .

On DATE their physical cohabitation was registered and since then they have been considered as a family unit for statistical purposes .

On DATE the CARDINAL applicants asked ORG in GPE to transmit to ORG in GPE the relevant documents for the purposes of registration of their marriage .

On DATE the relevant documents were transferred .

On DATE the Commune of Ferrara informed the CARDINAL applicants that it was not possible to register their marriage . The decision noted that the NORP legal order did not allow marriage between same - sex couples , and that although the law did not specify that couples had to be of the opposite sex , doctrine and jurisprudence had established that LAW of the LAW referred to the traditional concept of marriage , understood as being a marriage between persons of the opposite sex . Thus , the spouses being of different sex was an essential element to qualify for marriage . Moreover , according to ORG no . CARDINAL of DATE of ORG , a marriage contracted abroad between persons of the same sex , one of whom was NORP , could not be registered in so far as it was contrary to the norms of public order .

These CARDINAL applicants , who live in GPE , met in DATE and entered into a stable and committed relationship with each other .

On DATE they started cohabiting in ORG ’s apartment , although PERSON maintained formal residence in his own apartment . In DATE ORG purchased a second property which , in the absence of any legal recognition , for practical and fiscal reasons remained in his name only . In DATE ORG purchased , through a mandate in the name of PERSON ( for the purposes of purchasing such property ) , a garage . In DATE the couple moved into ORG apartment and established their home there . They have since been considered as a family unit for statistical purposes .

On DATE the CARDINAL applicants got married in GPE , GPE , GPE . On DATE they opened a joint bank account . On DATE , before a notary , the CARDINAL applicants appointed each other reciprocally as guardians in the event of incapacitation ( amministratore di PERSON ) .

Following the applicants’ request , on DATE , ORG in GPE transmitted to ORG in GPE the relevant documents for the purposes of registration of their marriage .

On DATE , ORG informed the CARDINAL applicants that it was not possible to register their marriage . The decision noted that the NORP legal order did not allow marriage between same - sex couples . Moreover , according to ORG no . CARDINAL of DATE of ORG , a marriage contracted abroad between persons of the same sex , one of whom was NORP , could not be registered in so far as it was contrary to the norms of public order .

Following the entry into force of the new law ( see paragraph CARDINAL below ) , on CARDINAL DATE the CARDINAL applicants requested that their marriage be transcribed as a civil union . According to the applicants’ submissions of CARDINAL DATE their request was still pending and no reply had yet been received .

According to documents dated DATE submitted to this ORG in DATE , by the Government , the applicants’ marriage was transcribed as a civil union on DATE . A certification of this registration , submitted by the Government , is dated CARDINAL DATE .

The CARDINAL applicants met in GPE in DATE and entered into a stable and committed relationship with each other . PERSON , who is NORP , did not have a residence permit in GPE at the time , Mr NORP therefore travelled repeatedly to GPE .

On DATE the couple married in GPE , GPE . In DATE Mr PERSON designated PERSON as his heir . In DATE Mr PERSON retired and moved to GPE permanently , although he maintained formal residence in GPE .

In DATE the CARDINAL applicants had purchased some land together ; in DATE the couple purchased a further piece of land , and in DATE they purchased a house and in DATE a commercial property with an annexed cottage . In DATE they also opened a joint bank account .

On DATE they asked ORG to register their marriage contracted in GPE .

On DATE the Commune of Naples informed the CARDINAL applicants that no such registration was possible . The decision noted that the NORP legal order did not allow marriage between same - sex couples as reiterated in ORG no . CARDINAL of DATE issued by ORG .

Following guidance from the Mayor of GPE , directing ORG of the commune to register such marriages ( see below ) , PERSON PERSON and Mr PERSON re - submitted an application to have their marriage registered . According to information sent to the applicants by email , their request was granted on DATE . However , further to the circular issued on DATE by ORG ( see paragraph CARDINAL below ) the registration was cancelled on an unspecified date .

On an unspecified date , following the entry into force of the new law , the CARDINAL applicants requested that their marriage be transcribed as a civil union . According to the ORG submissions of CARDINAL DATE their request was still pending and no reply had yet been received .

According to undated documents submitted to this ORG in DATE , by the Government , the applicants’ marriage was transcribed as a civil union on DATE . A certification of this registration , submitted by the Government , is dated CARDINAL DATE .

These CARDINAL applicants met in DATE , and DATE entered into a stable and committed relationship with each other .

In DATE PERSON purchased a house in GPE , GPE and in DATE the CARDINAL applicants started to cohabit there . There they established their common residence .

In DATE the CARDINAL applicants symbolically celebrated their union before their friends and family . In DATE PERSON allowed limited access to his bank account in favour of PERSON . In DATE the CARDINAL applicants drafted wills nominating each other as each other ’s heirs .

On DATE the CARDINAL applicants got married in GPE , GPE .

In DATE the applicants purchased property together and opened a joint bank account .

Following their request of DATE , on DATE the Commune of Rome informed the applicants that the registration of their marriage was not possible , as it was contrary to the norms of public order .

On DATE the couple filed a declaration with the GPE “ Registry of civil unions ” to the effect that they were entering into a civil union and constituting a de facto couple . The declaration is acknowledged by the relevant authorities , but has only symbolic value ( see relevant domestic law and practice below ) .

NORP Following guidance from the Mayor of GPE directing ORG of the commune to register such marriages ( see below ) , on DATE Mr PERSON and Mr PERSON resubmitted an application to have their marriage registered . Their request was also granted and the marriage was registered . However , further to the circular issued on DATE by ORG ( see paragraph CARDINAL below ) by a decision of the Prefect of Rome of CARDINAL DATE the above - mentioned registration was cancelled .

On DATE , following the entry into force of the new law and their request to that effect , the applicants’ marriage was transcribed as a civil union .

These CARDINAL applicants met in DATE and immediately entered into a committed and stable relationship with each other . DATE Mr PERSON moved in with Mr PERSON in GPE , GPE .

In DATE the couple moved to GPE , GPE .

In DATE Mr PERSON moved to GPE for employment purposes , maintaining a long - distance relationship with Mr PERSON ; however they met DATE .

In DATE Mr PERSON purchased a property in GPE with financial assistance from Mr PERSON .

In DATE Mr PERSON returned to GPE ; the couple moved to GPE and continued cohabiting .

In DATE PERSON moved to the GPE , again for work purposes , maintaining however , a long - distance relationship with regular DATE visits to GPE .

After being in a relationship for DATE , on DATE the couple got married in GPE , the GPE . In DATE the couple opened a joint bank account .

In DATE Mr PERSON left his job in GPE and moved to the GPE . As he was unemployed , he was totally dependent on his spouse . PERSON also supported financially Mr PERSON mother , a victim of Alzheimer ’s disease . They are under a system of separation of estates ; however , their accounts are in joint names and their wills indicate each other as heirs .

On DATE the applicants requested ORG in GPE to transmit to the respective ORG in GPE the relevant documents for the purposes of registration of their marriage .

On DATE the Commune of Mediglia informed the applicants that the registration of their marriage was not possible , as it was contrary to the norms of public order . No reply was received from ORG .

Following the guiding decision by the Mayor of GPE , mentioned above , the applicants also re - submitted an application to have their marriage registered . According to the information provided by the applicants on DATE , their marriage was never registered .

NORP However , on DATE , following the entry into force of the new law and their request to that effect , the applicants’ marriage was transcribed as a civil union .

The CARDINAL applicants married in GPE on DATE .

On DATE , the applicants being resident in GPE , GPE , they requested ORG to register their marriage contracted abroad .

On DATE their request was rejected in accordance with the advice of ORG of DATE . The decision noted that the NORP legal order did not provide for the possibility of CARDINAL NORP nationals of the same sex contracting marriage ; this was a matter contrary to internal public order .

On DATE the applicants lodged proceedings before the competent Tribunal of Latina , requesting the registration of their marriage in the light of ORG CARDINAL/CARDINAL ( see relevant domestic law below ) .

By a decision of DATE ORG rejected the applicants’ claim . It noted that the registration of the marriage was not possible , because if such a marriage had been contracted in GPE it would not have been considered valid according to the current state of the law , as it failed to fulfil the most basic requirement , that of having a female and a male . In any event , the marriage contracted by the applicants had no consequence in the NORP legal order in so far as a marriage CARDINAL persons of the same sex , although validly contracted abroad , ran counter to international public order . Indeed same - sex marriage was in contrast with GPE ’s history , tradition and culture , and the fact that so few ORG ( GPE ) countries had provided such legislation went to show that it was not in line with the common principles of international law .

An appeal by the applicants was rejected by a decision of ORG , filed in the relevant registry on DATE . ORG noted that such registration could not take place , given that their marriage lacked one of the essential requisites to amount to the institution of marriage in the domestic order , namely the spouses being of different sexes .

On DATE the CARDINAL applicants appealed to ORG . In particular they highlighted , inter alia , that public order referred to in LAW no . CARDINAL/CARDINAL , had to be interpreted as international public order not national public order , and thus it had to be established whether same - sex marriage was against that order , in the light of international instruments .

By a judgment of DATE ( no . CARDINAL ) ORG rejected the appeal and confirmed the previous judgment . Noting the ORG ’s case - law in PERSON and PERSON v. GPE , ( no . CARDINAL , ORG DATE ) it acknowledged that a marriage contracted abroad by CARDINAL persons of the same sex was indeed existent and valid , however , it could not be registered in GPE in so far as it could not give rise to any legal consequence .

The Court of Cassation referred to its case - law , to the effect that civil marriages contracted abroad by NORP nationals had immediate validity in the NORP legal order as a result of LAW and international private law . This would be so in so far as the marriage had been contracted in accordance with the laws of the foreign state in which it had been contracted , and that the relevant substantive requirements concerning civil status and the capacity to marry ( according to NORP law ) subsisted , irrespective of any non - observance of NORP regulations regarding the issuing of the banns or the subsequent registration . The former were subject solely to administrative sanctions and the latter were not conducive of any legal effects – since registration had the mere significance of giving publicity to a deed or act which was already valid on the basis of the locus regit actum principle . Thus , had the marriage been contracted by persons of the opposite sex , in the absence of any other fundamental requirements it would have been valid and conducive of legal effects in the NORP legal order . In that case the Civil Status Officer would have no option but to register the marriage . However , the case - law had shown that the opposite sex of the spouses was the most indispensable requirement for the “ existence ” of a marriage as a legally relevant act , irrespective of the fact that this was not stated anywhere explicitly in the relevant laws . Thus , the absence of such a requirement placed in question not only the validity of the marriage , but its actual existence , meaning that it would not be conducive to any legal effects ( as opposed to a nullity ) . It followed that according to the ordinary law of the land , CARDINAL same - sex spouses had no right to have their marriage contracted abroad registered .

ORG considered that the said refusal could not be based on the ground that such a marriage ran counter to public order ( as dictated by the relevant circulars ) , but that the refusal was simply a consequence of the fact that it could not be recognised as a marriage in the NORP legal order .

ORG went on to note that the social reality had changed , yet the NORP order had not granted same - sex couples the right to marry as concluded in ORG judgment no . CARDINAL/CARDINAL ( which it cited extensively ) . Indeed the question whether or not to allow same - sex marriage , or the registration thereof , was not a matter of ORG law , it being left to regulation by ORG . However , the NORP legal order was also made up of LAW as interpreted by ORG in PERSON and PERSON ( cited above ) ; in that case the ORG considered that the difference of sex of spouses was irrelevant , legally , for the purposes of marriage . It followed that , irrespective of the fact that it was a matter to be dealt with by the national authorities , it could no longer be a prerequisite for the “ existence ” of marriage . Moreover , ORG noted that persons of the same sex living together in a stable relationship had the right to respect for their private and family life under LAW ; therefore , even if they did not have the right to marry or to register a validly contracted marriage abroad , in the exercise of the right to freely live with the inviolable status of a couple , they could bring actions before the relevant courts to claim , in specific situations related to their fundamental rights , treatment which was uniform with that afforded by law to married couples .

In conclusion , ORG found that the claimants had no right to register their marriage . However , this was so not because the marriage did not “ exist ” or was “ invalid ” but because of its inability to produce ( as a marriage deed ) any legal effect in the NORP order .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicants were born in DATE and DATE respectively and live in ORG .

On DATE ORG ordered a socially - owned company , ORG DATE and its subsidiaries ( hereinafter “ the debtor ” ) to pay the applicants specified amounts on account of salary arrears plus the costs of the civil proceedings . This judgment became final on DATE .

On DATE , upon the applicants’ request to that effect , ORG ordered the enforcement of the said judgment and further ordered the debtor to pay the enforcement costs .

On DATE ORG ordered the restructuring of the debtor . Subsequently , the enforcement proceedings against the debtor were stayed .

On DATE , upon the ORG request to that effect , ORG resumed the enforcement proceedings .

On DATE the applicants lodged an appeal with ORG . In terms of redress , relying on LAW DATE , the applicants sought , inter alia , compensation for the damage suffered due to the impugned non - enforcement .

On DATE the applicants noted the adoption of the amendments to LAW , and specified their compensation claims accordingly . Specifically , on account of the pecuniary damage , the applicants requested the respective amounts awarded to them by the final judgment in question , whilst as regards the nonpecuniary damage sustained they claimed MONEY ( ORG ) each .

On DATE ORG found a violation of the applicants’ right to a hearing within a reasonable time and of their right to the peaceful enjoyment of their possessions . It further awarded the applicants ORG CARDINAL,CARDINAL and LAW respectively as just satisfaction for non - pecuniary damage . However , it rejected their compensation claim regarding the pecuniary damage sought by the applicants . ORG , lastly , ordered the speeding up of the impugned enforcement proceedings .

In its reasoning , ORG stated that the applicants’ pecuniary damage claim had been lodged out of time . In so doing , it merely referred to LAW , as amended in DATE , requiring that such claims be brought simultaneously with the lodging of a constitutional appeal .

On DATE the Government submitted that ORG informed the ORG , by its letter of DATE , that the final court judgment of DATE had been partially enforced on DATE and that the applicants had received the sum of MONEY ( ORG ) . The remainder of the judgment remained unenforced .

On DATE the ORG representative submitted that the first applicant and she were not aware of the partial enforcement of the above judgment . Moreover , she stated that they had never received a letter from ORG related to enforcement issue . Lastly , the ORG representative submitted that ORG had informed her in its letter of CARDINAL DATE that the amount of ORG CARDINAL was paid only to the second applicant .


Remainder inadmissible (Article 34 - Victim);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - Competent court);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

The applicant was born in DATE and lives in GPE .

The applicant married in DATE . He separated from his wife in DATE . On DATE he issued an application in ORG for contact with CARDINAL of his CARDINAL children .

The applicant and his wife divorced on DATE . His legal aid certificate was withdrawn following a financial award made as part of the divorce .

Meanwhile the contact proceedings continued . The applicant ’s former wife alleged that he had harassed her and applied to ORG for protection . On DATE the applicant gave an undertaking to ORG :

“ Not to contact , or communicate with , [ his former wife ] , [ her ] mother or father , nor her solicitors in any way whatsoever ... except through his own solicitors . ”

On DATE ORG granted the applicant ’s former wife an injunction which inter alia prevented him from using or threatening violence towards her .

On DATE the applicant ’s former wife issued an application for him to be committed to prison for breach of the undertaking and injunction .

His Honour Judge PERSON , sitting in ORG , chose to hear the applicant ’s application for contact and his former wife ’s application for him to be committed for contempt at the same time . He heard the applications on CARDINAL and DATE .

NORP The applicant was unrepresented during the proceedings before Judge PERSON . His position as regards legal aid was due to be reviewed shortly after the hearing . The judge made no inquiries into why the applicant was unrepresented or whether he wanted representation .

On DATE the judge made an order for indirect contact . He also committed the applicant to prison for DATE because he had breached the undertaking and the order and was therefore in contempt of court .

The applicant contacted lawyers from prison in order to appeal his committal but , having accepted instructions , they failed to assist him . He subsequently lodged a complaint against them and received MONEY ( “ GBP ” ) in compensation .

The applicant was released on DATE , after CARDINAL GPE imprisonment , pursuant to provisions permitting early release .

On around DATE the applicant lodged an appeal out of time against the finding that he had been in contempt of court . He subsequently obtained legal aid and legal representation to pursue those proceedings .

On DATE ORG quashed both the finding of contempt and the sentence imposed . It found that ORG errors of procedure were grave ones . Lord Justice PERSON , delivering the first judgment , began by setting out a number of well - established principles relevant to committal hearings . The need to observe LAW DATE ( see paragraphs CARDINAL below ) was central to the practice direction on committal proceedings , which had applied to the proceedings before ORG ( see paragraph CARDINAL below ) . Such proceedings concerned a “ criminal charge ” for the purpose of LAW and the defendant therefore benefited from the right to legal assistance set out in LAW ) . A defendant to committal proceedings was not obliged to give evidence and enjoyed a right against selfincrimination and , referring to LAW , the burden of proving guilt lay on the person seeking committal .

In the applicant ’s case , PERSON observed that these matters had not been drawn to the attention of the judge . He continued :

“ CARDINAL . Untutored and unassisted as the judge was , matters went wrong from the beginning . The judge noted , at the outset , that Mr PERSON was acting in person . He made no comment about it whatever . In particular , he did not ask anything as to the circumstances in which he was unrepresented . Had he done so , he would have learnt that earlier legal representation had been withdrawn by ORG after he received a sum of money on his divorce ... That was the subject matter of a review panel which was due to sit DATE . This emerged at the outset of the cross - examination by counsel for PERSON on DATE of the hearing . ”

Moses LJ considered that once the judge had learnt that the issue of legal aid was the subject of an imminent review panel , there was no reason why the committal hearing should not have been adjourned until the issue of legal representation had been resolved . He was of the view that the judge had been obliged to ask appropriate questions and to consider , at the very outset of the hearing , whether there should be an adjournment so as to enable the defendant to be represented . In the absence of evidence of intransigence on the part of the applicant , and he noted that there was none , there was no reason why the applicant should not be represented .

Moses LJ further found that the decision to hear the application for committal at the same time as the application for contact led to inescapable errors in procedure . He noted that it was for the applicant to establish his claim for contact , and for his former wife to prove breaches of the undertaking and the court order . The applicant should have been warned that he did not need to give evidence ; he received no such warning .

Moses LJ concluded that the decision of the judge to hear both applications at the same time had placed the applicant in an impossible position , noting that there was no hint at any stage in the transcript of the proceedings of anyone advising the applicant of his rights in respect of the committal proceedings , nor of the judge reminding himself of the different burden and standard of proof in the CARDINAL applications . Further , the judge had given no explanation as to why he considered it essential to deal with both applications at the same time .

Finally , PERSON considered that the judge again fell into error at the sentencing stage . He noted that the judge never paused , even at that stage , to consider whether the applicant should have legal representation or to remind himself of the relevant principles . He observed that the judge had paid no heed to the purpose of punishment in contempt proceedings . Since he had not been represented and had never been given an opportunity to mitigate , the sentencing phase of the committal was “ fatally flawed ” .

Moses LJ then assessed whether it was necessary for the court to consider whether legal representation would have made a difference in the applicant ’s case . He commented that it was almost impossible to envisage a case where such representation would not be needed , if only , as this case demonstrated , to remind a judge of the principles which applied . Even in a case where a defendant admitted every breach alleged , representation would be needed so as to assist the judge in considering the appropriate disposal . The case was certainly not one where the court would decline to take action despite a violation of LAW . There was ample material to suggest that legal representation would have made a difference . Quite apart from the question of the appropriate sentence , there was material relevant to the facts of the breaches to which the judge ’s attention ought to have been drawn .

Lord Justice PERSON fully agreed with PERSON , noting :

“ DATE . There are , of course , many cases in the books in which this court has upheld committal orders even although they have been made in proceedings which were procedurally flawed ... Provided the contemnor has had a fair trial and the order has been made on valid grounds , the existence of a defect in the committal application or in the order served will not result in it being set aside except in so far as the interests of justice require that to be done ...

The instant case , however , is plainly not in that category , and I am in complete agreement with PERSON that the defects in the process in the instant case are so serious that the interests of justice plainly require both the committal order and the consequential sentence of imprisonment to be set aside . ”

Specifically on the question of access to legal advice , he added :

“ DATE . ... Even more important , however , in my view is the proposition that in the absence of exceptional circumstances , it is a breach of a party ’s ECHR Article CARDINAL rights to be sent to prison for contempt of court without the benefit of legal representation . No GPE court would impose a custodial sentence on an unrepresented defendant , and in my judgment , no family court should send a litigant in person to prison for contempt without first making arrangements for that litigant to be legally represented . ”

On DATE the applicant commenced proceedings for damages under common law for the tort of wrongful imprisonment and under LAW DATE ( see paragraphs CARDINAL below ) , relying on DATE and CARDINAL of the Convention . He sought an extension of time for lodging his claim .

On DATE ORG dismissed his claim and refused the extension of time . However , Mr PERSON made it clear that had he considered there to be merit in the claim , he would have extended time . He had therefore considered the merits of the applicant ’s claim .

PERSON noted at the outset that ORG had identified CARDINAL main errors in the applicant ’s case : the failure to inquire into why he was not represented and to consider whether to adjourn the committal proceedings to enable him to obtain representation ; the joinder of the committal proceedings and the contact order application , which undermined the burden of proof and the applicant ’s right not to give evidence in the committal proceedings ; and the fact that he was not given the opportunity to mitigate before sentence was passed . PERSON considered it plain from the judgment of ORG that although it had granted no formal declaration that the committal hearing had breached the applicant ’s human rights , it had been of the view that it had and that had been the tenor of its findings .

As to the false imprisonment claim , PERSON referred to the longstanding recognition in the case - law that there was immunity from suit for a claim based on alleged errors of a circuit judge of competent jurisdiction that resulted in detention , in the absence of malice . The applicant ’s claim accordingly failed .

He considered equally hopeless the applicant ’s claim that any violation of an LAW right gave rise to a right to damages under LAW DATE . He found that section CARDINAL(CARDINAL ) of the LAW , which precludes damages in respect of a judicial act done in good faith , with the exception of damages required by LAW ( see paragraph CARDINAL below ) , was inconsistent with the applicant ’s claim . He also referred to the fact that just satisfaction under the ORG was a matter of discretion .

As to the claim under LAW , PERSON referred to this ORG ’s judgments in the cases of PERSON v. the GPE [ ORG ] , DATE , Reports of Judgments and Decisions CARDINAL , Perks and Others v. GPE , nos . CARDINAL/CARDINAL and others , DATE and ORG v. GPE , nos . CARDINAL and others , DATE . He decided that the applicant ’s claim that his detention was a violation of LAW because any hearing in which a violation of LAW occurred was not in accordance with law was :

“ a slightly more modest reworking of the article CARDINAL submission that has been already considered and summarily rejected . Again I reject this reworking of the submission for similar reasons to those already given , but more particularly for the principles spelt out in the trio of Community charge cases . ”

PERSON concluded that the applicant ’s detention pursuant to the order of Judge PERSON was not so gross or obvious an irregularity , within the meaning of § CARDINAL of the ORG ’s judgment in ORG , cited above , as to be not in accordance with the law . In reaching this conclusion , he noted , inter alia , that ORG was a court of competent jurisdiction ; that proper notice of the hearing and of the committal application had been given ; that the record of proceedings did not appear to reveal any application by the applicant for an adjournment to seek legal representation ; that there was no failure to follow a statutory prerequisite because the general requirement to observe LAW by LAW DATE was not the same as a precise rule prohibiting committal unless a condition was complied with ; that , similarly , the practice direction ( see paragraph CARDINAL below ) , which set out the need to observe LAW , was in general terms and did not amount to a condition precedent ; that ORG , at the time of ORG decision , had not made an unambiguous finding that a lack of representation at a committal hearing would always violate LAW , although its finding in the present case meant that LAW might be considered a condition precedent in future cases ; and that there was no hint of malice or bad faith by the judge .

PERSON also found that ORG CARDINAL principal criticisms all suggested that ORG had erroneously exercised its judgment . Erroneous exercises of judgment did not make decisions not in accordance with law or arbitrary in the sense indicated in LAW case - law .

Having thus concluded , PERSON explained that , had he reached the contrary conclusion , it would have been necessary to consider what the causal nexus between the unfairness and the detention resulting from the unfairness was . He accepted that where detention was in violation of LAW it was necessary and appropriate to visit it with a measure of damages , however modest . He found that , if the family - law applications had been separated correctly and the applicant had been represented , a finding of contempt would nevertheless have been inevitable . However , whilst custody was the more probable outcome , the length of sentence would have been significantly shorter and DATE , so the applicant would not have served DATE in prison . He indicated that , had a violation of LAW been established , he would have awarded damages in the sum of GBP CARDINAL,CARDINAL , on an equitable basis .

The applicant sought leave to appeal out of time . On DATE leave to appeal was refused on the papers . The judge commented that he might consider extending time if there was a real prospect of success , but in his view the judgment would be upheld .


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

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

On DATE the applicant was arrested on suspicion of murder and DATE was placed in remand prison no . IZ-CARDINAL/CARDINAL in GPE . On DATE he was found guilty and sentenced to CARDINAL years’ imprisonment . The conviction was upheld on appeal . Since DATE , save for short periods of detention in the remand prison , the applicant has been held in correctional colonies nos . CARDINAL and CARDINAL in GPE .

The applicant submitted that during his pre - trial detention he had not been examined by a dentist and had not received any dental treatment because , as he had been informed , the remand prison neither possessed any dental equipment nor employed a dentist . The only alternative to treatment had been tooth extraction by a doctor who visited the facility once or DATE . While in the correctional colony , the applicant had been unable to obtain any dental treatment for extended periods of time because the dental drill and GPE scanner were broken . Moreover , the colony ’s dentist was habitually either on DATE or away attending training courses . The applicant produced statements written by CARDINAL inmates with whom he had been detained in the same penal institutions from DATE . The statements corroborated his account of the lack of effective dental treatment .

The applicant also submitted that he had received dental treatment for the first time on DATE in the correctional colony . Since that time , he had undergone scaling and cleaning procedures , and extraction of teeth , but had not been prescribed any painkillers for the toothache he was suffering . Although the applicant was diagnosed with periodontitis on DATE , it was not until DATE that treatment of the disease had been prescribed .

During his detention the applicant lost CARDINAL teeth in total . He was unable to obtain orthodontic treatment even at his own expense . He had therefore asked a fellow inmate to make him temporary metal dental prostheses to replace several teeth , but they did not fit well . On DATE the applicant had been examined by a visiting dentist from another correctional colony who recommended examination by a specialist dentist once released .

The applicant also submitted several photos of his oral cavity dated DATE and CARDINAL DATE , which showed that he had lost CARDINAL front teeth within DATE . A medical certificate issued by the applicant ’s dentist on DATE confirmed the presence of dental prostheses for CARDINAL teeth and the absence of another CARDINAL . Another dentist ’s certificate of DATE showed that there were CARDINAL teeth missing in total .

NORP The applicant brought the issue of inadequate medical treatment to the attention of various domestic authorities , including the head of the remand prison , the GPE regional prosecutor ’s office , and ORG ( “ the ORG ” ) , but all to no avail .

The Government submitted that the applicant had undergone medical examinations in each penal facility and had been provided with the requisite medical treatment . They relied , in particular , upon certificates issued by the director of prison hospital no . CARDINAL of GPE and the director of correctional colony no . CARDINAL , extracts from the applicant ’s medical file , lists of medicines and medical appliances available at the respective penal institutions , staff lists , and the penal institutions’ medical licences .

The applicant ’s medical file contained the following entries . On DATE the applicant was examined by a dentist for the first time after his placement in detention on DATE , and he was diagnosed with periodontitis . On DATE the dentist concluded that “ the oral cavity required sanitisation ” . On CARDINAL DATE the applicant raised his dental problems during a visit to the head of the medical unit but there was no entry in the medical file indicating that the applicant ’s complaint had been investigated . On DATE the dentist recommended extraction and further treatment of teeth to the applicant . DATE an exacerbation of his chronic periodontitis was diagnosed and one tooth was extracted . DATE the applicant was informed that he could have dental prostheses fitted at his own expense . DATE and DATE he visited the dentist on CARDINAL occasions , during which he was diagnosed with gingivitis of the front teeth and dental caries , CARDINAL permanent dental fillings were put in , the gingivitis was treated and the tartar build - up was removed . On CARDINAL and CARDINAL DATE the dentist diagnosed the applicant as having chronic periodontitis and found that the oral cavity required sanitisation . The cleaning procedure was performed DATE . On DATE the applicant was diagnosed with inflammatory degenerative periodontitis and received treatment for it . DATE and CARDINAL DATE the dentist again confirmed the diagnosis , prescribed treatment and extracted CARDINAL teeth .

DATE and DATE the applicant visited the medical unit CARDINAL times and asked for dental prostheses . It was explained that such treatment could be provided at the applicant ’s own expense . Meanwhile the dentist confirmed the diagnosis of inflammatory degenerative periodontitis , prescribed treatment , extracted another tooth , removed a dental bridge and cleaned the tartar build - up .

On DATE the applicant was examined by CARDINAL dentists , who confirmed the partial absence of teeth in both jaws , with some of them being replaced by metal prostheses . They did not diagnose periodontitis and concluded that the applicant did not require orthodontic treatment . A dentist who carried out a checkup on DATE arrived at the same conclusions , but noted some teeth missing on the upper jaw only . The applicant was found to be “ apparently healthy ” .

The Government did not contest the veracity of the statements made by the applicant ’s former cellmates .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

NORP The case originated in an application ( no . CARDINAL ) against GPE lodged with ORG under LAW ( “ the LAW ) by CARDINAL NORP nationals , Mr PERSON , PERSON , Mr István PERSON , Mr PERSON , PERSON , PERSON , PERSON , Mr PERSON , PERSON Pápainé Armuth , PERSON György Rosta and Mr PERSON ( “ the applicants ” ) , on DATE . A list of applicants is annexed to the present judgment .

The applicants were represented by PERSON . Tordai , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Agent of ORG .

NORP On DATE the ORG complaint under LAW No . CARDINAL to the LAW concerning the imposition of PERCENT tax on part of their severance payment was communicated to the Government .

On DATE and CARDINAL DATE the ORG received friendly settlement declarations signed by the ORG and CARDINAL applicants under which the latter agreed to waive any further claims against GPE in respect of the facts giving rise to their complaints against an undertaking by the Government to pay PERSON MONEY ( ORG ) , PERSON PERSON DATE , Mr PERSON CARDINAL , Mr PERSON EUR CARDINAL , Mr PERSON CARDINAL , Mr PERSON EUR CARDINAL , and Mr PERSON CARDINAL , to cover any pecuniary and non - pecuniary damage as well as costs and expenses . These sums will be converted into the currency of the respondent ORG at the rate applicable on the date of payment , and will be free of any taxes that may be applicable . They will be payable within DATE from the date of notification of the strike - out decision taken by the ORG . In the event of failure to pay these sums within the said DATE period , the Government undertook to pay simple interest on them , from the expiry of that period until settlement , at a rate equal to the marginal lending rate of ORG during the default period plus CARDINAL percentage points . The payment will constitute the final resolution of the case in respect of these CARDINAL applicants .

The first applicant , Mr PERSON was born in DATE and lives in LANGUAGE . DATE he was employed at the ORG - owned ORG His employment was terminated by mutual agreement in DATE . The upper bracket of his severance payment was taxed at PERCENT rate . The Government did not contest the levy of the special tax on his severance payment ; but in their observations they rectified the tax amount . The first applicant did not contest this . Accordingly , special tax was levied on his severance payment in the amount of CARDINAL Hungarian Forints ( ORG ) ( approximately ORG CARDINAL ) .

The fourth applicant , Mr PERSON was born in DATE and lives in GPE . From DATE he was employed at the ORG - owned ORG His employment was terminated on CARDINAL DATE . The upper bracket of his severance payment was taxed at PERCENT rate . The Government did not contest the levy of the special tax on his severance payment ; but in their observations they rectified the tax amount . The fourth applicant did not contest this . Accordingly , special tax was levied on his severance payment in the amount of ORG CARDINAL ( approximately ORG CARDINAL ) .

The fifth applicant , PERSON was born in DATE and lives in GPE . From DATE she was employed at the ORG - owned ORG Her employment was terminated by mutual agreement on CARDINAL DATE . The upper bracket of her severance payment was taxed at PERCENT rate . The Government did not contest the levy of the special tax on her severance payment ; but in their observations they rectified the tax amount . The fifth applicant did not contest this . Accordingly , special tax was levied on her severance payment in the amount of ORG CARDINAL ( approximately ORG CARDINAL ) .

The ninth applicant , PERSON Pápainé Armuth was born in DATE and lives in GPE . From DATE she was employed at the ORG - owned ORG Her employment was terminated by mutual agreement in DATE . The upper bracket of her severance payment was taxed at PERCENT in the amount of ORG MONEY ( approximately EUR CARDINAL ) . The Government did not contest this . In a letter dated of CARDINAL DATE the ninth applicant submitted that due to some special accounting methods applied in her case , she had received further bonuses from her previous employer calculated pro rata temporis for DATE and DATE ; in respect of these bonuses additional special tax had been levied in the amount of altogether ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . The applicant received a certificate from her employer regarding the deduction of special tax from the subsequently received bonuses on unspecified dates in DATE and DATE .


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

The applicant arrived in GPE in DATE . In DATE , and again in DATE , his asylum requests were refused by the competent domestic authorities . In DATE the applicant was granted a residence permit , which was subsequently prolonged until DATE .

NORP In DATE ORG ( ORG für GPE ) investigated the applicant owing to his alleged ties to the “ radical NORP scene ” . In DATE the applicant was ordered not to leave GPE , as it was suspected that he was going to travel to GPE to join the so - called “ NORP State ” . A request to lift this order was denied in DATE as the security agencies possessed information indicating that the applicant was still in contact with the “ radical NORP scene ” .

NORP In DATE the police obtained intelligence about the applicant , including records of online chats in which the applicant stated that he would be willing to participate in an “ operation ” in GPE . Subsequently the public prosecutor ’s office launched an official investigation on the grounds of “ encouraging the commission of a serious violent offence endangering the state ” and the applicant ’s flat was searched . During the search several smartphones , tablets and other devices were seized . On the devices CARDINAL pictures and CARDINAL videos were found which showed violent acts in an NORP context and also included a manual for building explosive devices .

On DATE ORG ordered the applicant ’s deportation to GPE , as he constituted a threat to national security . He was suspected of being willing to participate in or carry out a terrorist attack in GPE . The decision was based on intelligence gathered by the security agencies ( see paragraphs PERSON and CARDINAL above ) . Although the authorities concluded that he had not yet reached the planning stage , he nonetheless constituted an abstract danger for society . This abstract risk was sufficient to overrule the applicant ’s right to respect for private and family life , given the fact that he had grown up and lived in GPE for DATE . Moreover , there was no risk for the applicant under LAW as the NORP authorities would not be informed about the intelligence that had been gathered and it was up to him not to join the “ radical NORP scene ” in GPE after his deportation .

The applicant challenged the decision before ORG and applied for an interim measure suspending his deportation for the duration of the main proceedings . During the interim proceedings ORG requested further information from ORG concerning the expected treatment of the applicant after deportation to GPE . Based on conversations with employees of the NORP ORG Committee Against Torture ” ORG responded that it could be expected that the applicant would be questioned and monitored by security agencies , but that it would be highly unlikely that he would be pre - emptively tortured .

On DATE , in a detailed decision of CARDINAL pages , ORG refused to grant the interim measure . It concluded that the assessment of the security risk for the applicant was in essence correct . However , unlike ORG , the court considered that the NORP authorities would be acquainted with the reasons for the applicant ’s deportation . Therefore , due to the risk of torture and ill - treatment the applicant could not be deported to his home region of ORG . However , he could be deported to another part of GPE . After considering several current reports on the situation , the court held that there were no specific indications that the applicant would be detained or tortured elsewhere in GPE or be forcibly brought to PERSON on the basis of his previous conduct in GPE . It found that the publicly available reports were not applicable to the present case as they concerned persons who were in CARDINAL way or another connected to the conflicts in GPE and GPE , which the applicant was not . The most relevant information stemmed from ORG ( see paragraph CARDINAL above ) , which had provided information specific to the present case to ORG . According to this information the applicant would probably be questioned and monitored by security agencies in GPE , but it was highly unlikely that he would be tortured . Consequently , the court concluded that even though it could be expected that the applicant would be closely monitored , any further action by the NORP authorities would depend on the applicant ’s future conduct in GPE . As regards DATE , the court held that even though the applicant would face certain problems due to not having family in other parts of GPE and everyday discrimination based on his NORP ethnicity , he should still be able to settle in the suburbs of GPE and find a job , since he had a basic knowledge of the NORP language .

NORP On DATE ORG – in a reasoned decision – refused to grant an interim measure or to admit the applicant ’s constitutional complaint for adjudication . While criticising that ORG had not assessed in sufficient depth whether the applicant could live and find work outside of LOC without facing the risk of inhuman or degrading treatment at the hands of the NORP authorities , it pointed out that ORG had nonetheless correctly based its decision on current reports concerning the situation of persons of NORP ethnicity returning to GPE and information requested from ORG and ORG . It therefore concluded that ORG had considered all possible risks the applicant would face and had also correctly found that the applicant could be deported to GPE .

The main proceedings before ORG are still pending .

The deportation of a so - called “ PERSON ” ( a potential offender , who poses a threat to national security ) is regulated in section CARDINALa of the Residence Act ( Aufenthaltsgesetz ) , which reads :

“ ( CARDINAL ) The supreme Land authority may , based on an assessment of the facts and without a prior expulsion order , issue a deportation order for a foreigner in order to avert a special danger to the security of GPE or a terrorist threat . The deportation order shall be immediately enforceable ; no notice of intention to deport shall be necessary .

The Human Rights Watch report “ ‘ Invisible War’ ‒ GPE ’s ORG to the Dagestan Insurgency ” of DATE outlines several human rights violations during counter - insurgency operations in ORG , including arbitrary detention , torture and forced disappearances . It also states that the authorities have cast an excessively wide net by essentially treating Salafis as criminal suspects without charging them with any specific offence .

A report drawn up by ORG in DATE ( “ PERSON : PERSON dagestanischer Terrorverdächtiger außerhalb NORP ” , DATE ) describes the situation of family members of alleged terrorists involved in the conflict in ORG . According to it , family members were increasingly the targets of persecution by the NORP authorities even outside of LOC . The methods employed by the NORP authorities included arbitrary arrests and criminal prosecution , and disappearances .

An updated report by ORG regarding the human rights situation in GPE ( “ GPE – Tchétchénie – Mise à jour : situation des droits humains ” , CARDINAL DATE ) illustrates several examples of NORP , with a prior connection to the conflict in GPE , having been detained , tortured and killed after returning to GPE . The ORG also reports that the NORP and NORP authorities cooperate closely and that several persons had been forcibly returned to GPE from other parts of GPE .

ORG in its report “ ORG and GPE : An Exported Jihad ? ” of DATE describes grave human rights violations , including enforced disappearances , summary executions and the widespread occurrence of torture in GPE and GPE . It also describes the preventive registration of those suspected of adherence to fundamentalist strands of ORG as one of the key control methods across LOC . After incidents such as clashes between security forces and insurgents , or terrorist acts , the individuals on these lists were faced with the risk of detention and interrogation , which often involved violent or degrading methods .