Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Alcoholics);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in DATE and lives in GPE .

It appears that in DATE the applicant was certified as being Category CARDINAL disabled ( the least severe level of disability ) .

On DATE the applicant was certified as being Category CARDINAL disabled ( the medium level of disability ) on the grounds of an unspecified illness . His disability was to be reassessed on a further occasion .

According to the applicant , on DATE his Category CARDINAL disability status was certified as permanent .

On DATE the applicant was administratively detained by the municipal police . The circumstances are disputed between the parties .

According to the Government , at TIME on DATE the fire and rescue services received a call about a man who was lying on the ground near an apartment building . A municipal police patrol was dispatched to the address given . Police officers GPE and GPE arrived there at CARDINAL p.m. and found no one there . However , they were approached by an unidentified woman who indicated that somebody was lying on the stairs inside the building . They found the applicant lying face - down on the stairs between the ground and CARDINALst floor . He appeared to be in a state of heavy alcohol intoxication , was unable to communicate or identify himself , and was unable to move . He had several bruises and grazes on his face – cheeks , eyebrows and forehead . The officers carried him by his arms and legs to a municipal police van and took him to the municipal police station . They arrived there TIME , on the way having picked up another person who had been lying on the ground unconscious somewhere else .

At the municipal police station , a medical orderly visually examined the applicant and treated and recorded his facial injuries . The officers then carried him to a “ sobering - up room ” and placed him on a wooden plank bed . TIME the applicant was able to reveal his identity . According to the Government , reports ( protokoli ) in respect of administrative detention ( administratīvā aizturēšana ) and the administrative offence of “ indecent public behaviour while being in a state of alcohol intoxication ” were being drawn up . The Government could not provide the ORG with copies of these procedural documents since they were destroyed in DATE upon the expiry of their archival period .

Later , at some point during TIME CARDINAL DATE , the applicant complained of pain in his left leg . The medical orderly called an ambulance and the applicant was taken to a hospital in GPE .

The applicant did not agree with the ORG ’s version of the events . According to the applicant , on DATE , TIME , he was sitting on a bench by the apartment building he lived in with a bottle of beer in his hand , when the municipal police arrived and CARDINAL officers approached him with a view to taking him to the municipal police station . They did not inform him of the reasons for his detention ; he got into the police van by himself and was taken to the municipal police station , where at TIME an administrative detention report was drawn up .

At the station , he was briefly examined to determine his state of health and level of intoxication . Following an examination , an officer instructed him to stand up immediately . The applicant replied that he was capable of doing so by himself , but slowly . Then another officer , who was standing behind him , ordered him to do as requested and then took him by the shoulders and pushed him against a wall . His left eye was hurt to the extent that he later required several stiches . The officer then grabbed the applicant by his clothes and dragged him on to the floor and down the stairs to the sobering - up room . The applicant tried to turn onto his left side as he had had an operation on his right leg and he was trying to spare it . While he was being dragged down the stairs , he felt a sharp pain in his left leg and started to scream . The officer did not stop ; he dragged him into a cell and left him there . The applicant was unable to move . After some time , QUANTITY persons entered the cell , took off his trousers , causing him more pain , and injected him with some substances . Then an unidentified officer approached him with a view to getting him to sign another report . He refused , protesting that he had already signed CARDINAL . At TIME an ambulance arrived and took him to a hospital in GPE .

The contents of the applicant ’s administrative detention report were partly reproduced in expert report no . CARDINAL of CARDINAL DATE and read as follows :

“ This report has been drawn up by ... GPE on DATE , at TIME , in Liepāja in respect of the applicant [ date of birth and address ] [ , who ] was administratively detained and taken to the sobering - up room of the municipal police station on DATE , at TIME Reason for detention : to sober up . In the presence of witnesses [ the applicant ’s ] keys were confiscated . PERSON ’s clothes : blue blazer , dark shirt , blue trousers and dark shoes . In a check - up [ the following ] injuries were discovered : a bruise on the face , a bruise on the left eyebrow . The applicant was released on DATE , at TIME Reason for release : sobered up . Upon release : received keys . No complaints . ”

According to the ambulance log , a call was recorded at TIME on DATE . At TIME an ambulance arrived at the municipal police station . In the field “ diagnoses ” it was noted that the applicant ’s left hip and head were injured , there were bruises on his face , and he was in a state of alcohol intoxication . In the field “ additional findings ” it was noted that the applicant had bruises on his face and the lower part of his body . He was taken to hospital , where at TIME his blood alcohol level was measured ( QUANTITY ) .

From DATE to DATE the applicant remained in hospital . Following an X - ray examination he was diagnosed with a fracture to his left hip ( kreisā augšstilba kakla kauliņa lūzums ) . On DATE an operation ( endo - prosthesis ) was performed and over DATE the applicant received post - operative treatment .

On DATE the applicant was issued with an extract from his medical file at the hospital . The extract did not contain any mention of the applicant ’s own description of the circumstances relating to his hip fracture .

On DATE the applicant made a complaint to the prosecutor ’s office which was for the most part similar to his allegations before the ORG . The municipal police were requested to prepare an internal report ; on DATE they issued report no . CARDINAL , the contents of which were later for the most part reproduced in the first decision ( see paragraph CARDINAL below ) .

On DATE the applicant ’s complaint was forwarded for examination to the Liepāja police , a branch of ORG .

On DATE an expert examined the applicant ’s medical records and drew up report no . CARDINAL . Reference was made to a statement the applicant had made in the hospital that “ he had fallen down somewhere on the street ” . The expert concluded that the applicant had sustained a bodily injury – a fracture of the left hip DATE which was classified as moderately severe ( vidēja smaguma miesas bojājumi ) . This injury could have been sustained as a result of being hit by blunt objects or bumping into such objects .

On DATE the Liepāja police decided not to institute criminal proceedings with regard to the injuries suffered by the applicant ( “ the first decision ” ) . Reference was made to the internal report of DATE . According to the report , the events developed as follows .

At TIME on DATE , the municipal police received a call from the fire and rescue services informing them that a man was lying near an apartment building . Upon their arrival the officers found the applicant lying inside the apartment building on the stairs between the ground and CARDINALst floor . He was too intoxicated to give any explanation ; the police officers carried him out of the apartment building , placed him in the van and took him to the police station . He was placed in the sobering - up area , which was located in the basement . The officers carried the applicant into a cell as he was unable to move . After TIME the applicant was able to reveal his identity . He then complained about pain in his leg and a medical orderly called an ambulance to the police station . No injections were given to the applicant . He was detained on the basis of paragraph CARDINAL of section CARDINAL of LAW . On the basis of the case - file materials in their entirety , it was concluded that the applicant “ could have sustained ” injuries by falling on the stairs in the apartment building . There were no grounds to believe that the applicant ’s injuries had been wilfully inflicted in the sobering - up room or that excessive physical force had been used on him . There were no indications that the officers had exceeded their authority .

On DATE the applicant lodged a complaint , noting that CARDINAL witnesses had seen him getting into the police van by himself when being taken to the police station .

On DATE the supervising prosecutor quashed the first decision and the case was remitted to the LOC police for additional investigation . The quashing order was issued on the ground that the applicant had not been questioned on the facts , nor had his neighbours been questioned ; the person who had called the fire and rescue services had not been identified or questioned ; the witnesses identified by the applicant had not been questioned ; and lastly , the ambulance personnel had not been questioned .

During additional investigation the LOC police received information from the fire and rescue services and questioned the applicant ’s neighbours , including GPE , who had been identified by the applicant as a witness , and a doctor from the hospital . Another medico - legal examination was also ordered .

On DATE an expert examined the applicant and his administrative detention report and drew up report no . CARDINAL in addition to report no . CARDINAL . The background to the report was described as follows :

“ On DATE police officers [ allegedly ] inflicted bodily injuries on the applicant at the police station . On DATE an expert examined the applicant ’s medical records ( report no . CARDINAL ) . The applicant ... alleged that he had suffered additional injuries to different parts of his body ( eyebrow , lower body ) , [ which were ] not documented in the medical records ” .

The expert concluded that the applicant had the following injuries : “ a scar on his left eyebrow that could be due to a cicatrised wound that had been stitched ” and “ scars on the back of the applicant ’s torso and on the buttock area that could have appeared after bruises had healed ” . They were both classified as minor bodily injuries ( viegli miesas bojājumi ) .

On DATE the Liepāja police again refused to institute criminal proceedings ( “ the second decision ” ) . In addition to the grounds of the first decision , the second decision was based on the grounds that the fire and rescue services did not hold information about incoming calls concerning alcohol intoxication . Such calls were transferred to the municipal police .

According to the second decision , an acquaintance of the applicant , ORG , stated that he had seen him sitting on a bench and consuming beer at TIME , and then the municipal police had arrived . Other statements were taken from neighbours , but they only indicated that the applicant often sat on the bench by the apartment building consuming alcohol . CARDINAL neighbour , GPE , stated that the applicant had a “ difficult ” personality and that “ he often started fights ” . Further , it was noted that “ it was not possible to identify direct witnesses who could provide objective information about [ the applicant ’s ] arrest ” . The ambulance record indicated that the applicant had been taken from the municipal police station to the hospital with injuries to his left hip and head , bruises on his face and in a state of alcohol intoxication . Finally , the doctor ’s statement indicated that he had examined the applicant at TIME , when he had sobered up ; the doctor had inquired about the circumstances of the injury and the applicant had replied that he had fallen down somewhere on the street . A note was made that the conclusions drawn following the internal inquiry were confirmed by other case - file materials and that the statements made by the applicant and PERSON should be evaluated with caution . On the basis of the case - file materials in their entirety , it was concluded that the applicant “ could have sustained ” the injuries by falling on the stairs in the apartment building . There were no grounds for finding that the applicant ’s injuries had been wilfully inflicted in the sobering - up room , or that excessive physical force had been used on him . There were no indications that the officers had exceeded their authority .

On DATE the supervising prosecutor examined the case - file materials and dismissed a complaint by the applicant about the second decision . She noted that the Liepāja police , even after her instructions , could not find any witness to his detention . It appears that she herself questioned PERSON for a second time . He clarified that he had only seen the applicant sitting on the bench ; when the municipal police had arrived , he could not see the bench any more , as the van blocked the scene from his view . He testified that the police had been there for TIME . In response to the applicant ’s allegations as to the location , nature and probable cause of his injuries in the circumstances , the prosecutor stated that the expert ’s observation that they could have been sustained as a result of being hit with blunt objects or bumping into such objects was only a probability and not an assertion . Moreover , she considered that there were no grounds to disregard the hospital doctor ’s remark that the circumstances of the applicant ’s injuries had been taken down in his own words . The prosecutor noted that his injuries , as detected upon his admission to the police station ( bruises on the face and left eyebrow ) , were confirmed by the statement of ORG ; his alcohol intoxication was confirmed by the ambulance and hospital medical records and the statements of the police officers , the watch officer ( GPE ) , and the medical orderly ( A.B. ) . She concluded that her previous instructions ( issued on DATE ) had been complied with and that on the basis of the case - file materials in their entirety “ it [ could ] not be precluded ” that the applicant sustained the injuries before his detention as he had been admitted to the station in an intoxicated state with visible injuries on his face .

On DATE and CARDINAL DATE CARDINAL higher - ranking prosecutors dismissed the applicant ’s complaints against the second decision . The first prosecutor considered that the review of the applicant ’s complaints had been comprehensive and objective ; no evidence had been found that the officers had exceeded their authority . Referring to the medico - legal examination report , the prosecutor considered that the applicant “ could have sustained ” injuries by falling from his own height , as he had indicated to the hospital doctor , whose testimony was to be given more weight as he was not an interested party . The second prosecutor also found the second decision justified . He referred to the administrative detention “ documentation ” and the ORG statements to demonstrate that the applicant had been lying on the stairs in the apartment building and not sitting on the bench next to it ; ORG statements did not corroborate these facts . The officers had taken the applicant to the sobering - up room because he had been unable to move by himself because of either his intoxicated state or his injuries . He concluded :

“ It follows from the foregoing that [ the applicant ] must have sustained the injuries before the arrival of the municipal police officers . [ The applicant ’s ] blood alcohol level after TIME of detention only further demonstrates that prior to detention [ the applicant ] was intoxicated with alcohol . This does not exclude the possibility that [ the applicant ] sustained injuries by falling from [ his own ] height . ”

On DATE a prosecutor at ORG dismissed the applicant ’s complaint . She examined the case - file materials and found that there were no grounds to quash the second decision . Among other things , she noted that section CARDINAL of LAW provided for administrative liability for the use of alcoholic beverages or other intoxicating substances in public places or for appearing in public places in an intoxicated state , which was an affront to human dignity . For that reason , notwithstanding the discrepancy between the submissions of the officers , who had stated that the applicant had been lying inside the apartment building , and the applicant , who had stated that he had been sitting on a bench outside the building , the officers had had grounds to take him to the municipal police station to sober up and to draw up an administrative offence report .

On DATE the applicant , in a complaint to a higher - ranking prosecutor , specified that his complaints did not relate to unjustified placement ( nepamatota nogādāšana ) in the sobering - up room or to being taken there by force . Rather , they related to the failure to institute criminal proceedings in connection with bodily injuries inflicted on him while there .

On DATE the higher - ranking prosecutor at ORG dismissed the applicant ’s complaint . It appears that he obtained additional statements from officers GPE and GPE , and the watch officer GPE The prosecutor found that the applicant ’s allegation that the injury on his left eyebrow had been inflicted by officers pushing him against the wall in the police station were not corroborated by the ORG statements and the medical orderly ’s indication that the applicant had been admitted with the injury . Nor was the applicant ’s allegation that his left hip had been broken by the officers dragging him down the stairs at the police station confirmed . The officers had explained that they had carried him into the station as he had not been able to walk by himself . The prosecutor concluded that the applicant had sustained the injuries before his administrative detention .

A final decision , negative in respect of the applicant , was adopted by ORG on DATE . He found that the applicant ’s allegations concerning contradictions and discrepancies in the case - file materials were unfounded . He noted , among other things , that the applicant ’s detention record and the medical record drawn up upon his admission to the police station confirmed that he already had injuries on his face and left eyebrow , thus his allegations about sustaining the injuries in the station were not confirmed . The applicant had been carried into the station because he had not been able to walk by himself and he had complained about pain in his hip only after sobering up , after which the medical orderly had called an ambulance .

The applicant received the decision on DATE .


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

NORP The applicant is a NORP national who has born in DATE . She is currently in GPE . She is represented by PERSON , residing in ORG .


CASE OF IURCOVSCHI AND OTHERS v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

The applicants were born in DATE , DATE and DATE , respectively , and are currently absconding from the GPE authorities .

At the time of the events , the applicants were police officers . According to the materials of the domestic judgments , the applicants found out that a person from the NORP region of GPE , P. , intended to come to PERSON on DATE , carrying a large amount of cash money , in order to conclude a transaction concerning immovable property . On DATE , the applicants attempted to apprehend P. in the staircase of an apartment block building . P. managed to escape , however he was chased and apprehended by the applicants , was thrown to the ground and severely beaten up until he lost consciousness . After that , he was carried by the applicants and put into a car . Several persons witnessed PERSON ’s apprehension and beating . PERSON was never seen alive after that and DATE his body was found in a well .

The applicants claimed that they believed P. to be a criminal and intended to take him to the police station for questioning . After chasing him , they arrested him and drove him to the police station . However , PERSON managed to escape from their car at a busy road crossing and ran away after having waded across a small river . They submitted that they did not chase him again because the traffic light turned green and because they did not want to soil their cloths chasing PERSON across the river .

On DATE the applicants were arrested and charged with kidnapping , murder and abuse of their authority as police officers .

DATE the public prosecutor applied to FAC for a warrant for the applicants’ detention in custody . The reasons relied upon by the public prosecutor were that the applicants could abscond from prosecution , interfere with the criminal investigation and re - offend . The applicants’ representative sought access to the materials submitted by the public prosecutor in support of his requests but to no avail .

DATE FAC issued a detention order for DATE . In court the applicants argued that the allegations presented by the public prosecutor were not supported by any facts or materials and that no materials whatsoever were presented by the prosecution . The court found that in view of the gravity of the accusations against the applicants , of the fact that the investigation was at its initial stage and of the applicants’ position in ORG , there was a serious risk of absconding and of interfering with the investigation by influencing witnesses , misleading the investigation and increasing the volume of work .

On DATE the applicants appealed and argued , inter alia , that the orders for detention lacked reasoning and that the court had relied only on suppositions . The applicants further noted that the court had refused to provide their representative with any materials from the file other than the prosecutor ’s requests .

On DATE ORG dismissed the applicants’ appeals . The court found that the materials in the file provided sufficient grounds for a reasonable suspicion that the applicants had committed the crimes they were charged with . The risk of interference with the investigation was determined by the fact that the investigation had just started and the risk of absconding resulted from the fact that the applicants were police officers and thus knew how the investigating authorities operated . ORG did not answer the ORG complaint about the alleged lack of access to the materials in the case - file , relied upon by the first instance court to order their detention .

On DATE ORG extended the applicants’ detention by DATE for the same reasons as it had done earlier . The court noted that on this occasion the applicants’ representative had been given access to the materials in the file .

The applicants appealed and argued , inter alia , that the investigation was not advancing as claimed by the public prosecutor and that the risk of interference could just as well be mitigated by the applicants’ house arrest . On DATE ORG upheld the decision of ORG of DATE for the same reasons as it had done earlier .

On DATE the charges of murder were dropped in respect of all applicants because the victim ’s body was not yet found . On DATE the case was committed for trial .

On DATE the prosecutor applied for the extension of the applicants’ detention by DATE . The prosecutor cited the same reasons as before : risk of absconding , of interfering with the investigation and of reoffending .

On DATE the applicants lodged a habeas corpus request , arguing that the risk of interfering with the investigation was no longer valid because the criminal investigation had been concluded and that there had not been any evidence indicating that the applicants might abscond .

DATE , judge PERSON of ORG extended the applicants’ detention by DATE considering that the CARDINAL risks invoked by the public prosecutor resulted from the character of the charges against the applicants .

The applicants appealed and argued , inter alia , that the court had failed to refer to any evidence in support of the alleged risks justifying their detention .

On DATE ORG upheld the decision of ORG of DATE . The court relied on the fact that the applicants were police officers and considered that they could influence the witnesses or destroy evidence . The court also cited the risk of absconding .

On DATE the applicants lodged a habeas corpus request , arguing that there were no grounds to assume that the applicants would abscond , re - offend or interfere with the trial .

On DATE judge PERSON had withdrawn from the case because he had previously worked together with the third applicant . It is not clear from the materials of the case - file in which manner that fact affected judge ORG ’s impartiality and when did he realise that .

On DATE the applicants lodged another habeas corpus request , noting that their previous request had still not been examined . They argued that , on DATE , judge ORG had withdrawn from the case , whereas his ineligibility had existed on DATE , when he had ordered the extension of their detention and thus affected the lawfulness of that order .

On DATE judge PERSON from ORG extended the applicants’ detention by DATE for the same reasons as had been done earlier . The court rejected the ORG habeas corpus request of DATE by noting that none of the previous grounds for detention had lost their validity because the trial had not yet started . The court did not make any reference to the habeas corpus request of CARDINAL DATE .

On DATE the applicants appealed and argued , inter alia , that the court had not examined their habeas corpus requests “ speedily ” as required under LAW and had not replied to their contention that the detention order of DATE had been unlawful because it had been ordered by judge PERSON who lacked impartiality .

On DATE ORG upheld the decision of ORG of DATE for the same reasons as it had done before .

On DATE ORG acquitted the applicants of all charges and released them in the court room .

On DATE ORG of Appeal quashed that judgment , convicted the applicants of kidnapping and abuse of office and sentenced them to DATE of imprisonment . On DATE ORG upheld that judgment in absentia .

It appears that on an unspecified date after the victim ’s body was found , a new set of criminal proceedings based on murder charges was initiated against the applicants . The parties did not inform the ORG about the outcome of those proceedings .


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

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr C. J. Barnett , a lawyer practising in GPE .

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

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

On DATE , the applicant ’s son , aged DATE and DATE at that time , underwent a tonsillectomy DATE an operation to remove his tonsils DATE performed by PERSON in a private clinic . After the surgery the child ’s condition was stable and the first medical check - up was scheduled for DATE .

During the medical check - up , which took place on the scheduled date , Dr O.L.T. assured the parents that the post - surgical recovery was going well and recommended that they continue caring for their child in the same way .

In TIME CARDINAL DATE the child suffered a haemorrhage , causing blood to flood his mouth and nose . The applicant ’s mother - in - law called an ambulance and his wife went outside to wait for it . Before the ambulance arrived , she and PERSON , a neighbour she had met on her way out , took a taxi and rushed the child to the emergency unit of ORG .

According to the applicant , at the emergency unit of ORG his wife and son encountered a member of the medical staff who , without examining his son , advised his wife to take the child to the paediatric unit of the same hospital for medical care .

The child did not receive any medical treatment at the emergency unit of ORG because the applicant ’s wife had immediately taken the child to the paediatric unit of the hospital .

Upon arrival at the paediatric unit , the doctors tried to resuscitate the child and clear his respiratory channels , but without any success . The child had died .

On DATE , ORG initiated of its own motion a criminal investigation into the death of the applicant ’s son . On DATE , it carried out an investigation on the premises of ORG ( cercetare la fața locului ) and at the applicant ’s home .

On DATE ORG asked ORG to produce an autopsy report in respect of the applicant ’s son .

On DATE ORG issued a death certificate which concluded that the applicant ’s son had died of acute respiratory failure as a result of the blood that had blocked his airways .

On DATE and DATE as well as DATE and DATE ORG heard the applicant and his wife .

On DATE the applicant lodged a criminal complaint with ORG for aggravated involuntary manslaughter against PERSON and the unidentified staff member who had been working at FAC emergency unit on TIME CARDINAL May CARDINAL . He alleged that the faulty surgical and post - surgical treatment received by his son from Dr O.L.T. , as well as the refusal of the unidentified staff member of ORG emergency unit to urgently treat his son , had resulted in his death . In addition , he asked the investigating authorities to identify all the medical personnel working at the emergency unit of ORG on TIME DATE because their identities were unknown to him . Furthermore , he informed the investigating authorities that he reserved his right to join the criminal proceedings as a civil party and his right to request that the private clinic where the surgery had taken place and ORG be held jointly liable with their staff for their negligence while on duty under the relevant provisions of the criminal procedure law and civil law . Lastly , he asked the domestic authorities to order ORG to carry out a forensic expert report that would answer his questions about the cause and circumstances of his son ’s death .

On DATE , ORG produced the autopsy report requested by ORG on DATE . The report , signed by CARDINAL forensic experts , relied amongst other things on a histological examination of tissue collected from the applicant ’s son after his death . It noted the opening of a very small blood vessel in the cavity of the upper left tonsil . It concluded that the child ’s death had been violent and had been caused by severe respiratory failure resulting from the aspiration of blood into his airways . The bleeding had originated from a small damaged arterial blood vessel located in the cavity of the left tonsil and had lasted for TIME . Blood had accumulated in the stomach cavity , which had resulted in vomiting and subsequently in the blocking of the child ’s airways . The blood vessel had been damaged by local acute inflammation – also confirmed by the histological examination – which had happened on DATE after the surgery . The report noted that although those circumstances were rare , they occurred in PERCENT of cases . It excluded the possibility that the bleeding had been caused by the severing of a larger blood vessel or an artery during surgery . Had that been the case , the bleeding would have happened faster and more abundantly . Lastly , it recommended that the report be submitted for approval by the forensic review board of ORG , which could also assess , among other things , the medical conduct in the case .

On DATE , further to the applicant ’s request , ORG provided him with a copy of the autopsy report produced by ORG and of the surgery report produced by the private clinic where his son ’s surgery had been performed .

On an unspecified date , the autopsy report was sent for approval to the review board of ORG and the higher forensic review board of ORG .

On DATE , DATE and DATE ORG heard the medical personnel of the private clinic where the applicant ’s son had undergone surgery and who had been involved in his pre- and post - surgical care , as well as Dr O.L.T.

On DATE , the applicant lodged a request with ORG for a new forensic expert report to be produced in his son ’s case . He requested that a forensic expert chosen by him and an otolaryngologist be allowed to take part in the process .

On DATE , ORG review board approved the autopsy report of DATE . The board included an otolaryngologist . It concluded , among other things , that the surgical operation and the postsurgical examinations had been appropriate and that the applicant ’s son had not been treated negligently . The delayed haemorrhage had not been caused by the surgery , but by a secondary inflammation . The last medical examination of the applicant ’s son could not have identified a microscopic infection . However , the medical personnel of ORG emergency unit had to explain their conduct given that their statements had not been attached to the examined file .

On DATE the higher forensic review board of ORG examined and approved the findings of the autopsy report and of ORG review board . The board , which also included an otolaryngologist , concluded that PERSON had not committed any medical errors and that the cause of death established by the autopsy report was correct . The death of the applicant ’s son was not a consequence of the surgery . No one could be blamed for his haemorrhage , because it had been caused by a necrosis of the wall of the carotid artery which had subsequently spontaneously broken . The choices made by the medical personnel of ORG emergency unit had been based on the equipment available in the emergency unit and the seriousness of the condition of the applicant ’s son . Although it was clear that the applicant ’s son had died by the time he had reached the paediatric unit , there were no medical records to show whether he had still been alive when he had arrived at the emergency unit of the hospital . Given the circumstances and the seriousness of his condition , there was little hope that he could have been saved .

On DATE , ORG authorised a new forensic expert report , deemed necessary by the applicant . However , the report was never produced because on DATE the higher forensic review board of ORG communicated its report of DATE to ORG .

From DATE to CARDINAL DATE ORG and the prosecutor ’s office repeatedly questioned the medical personnel of ORG emergency unit who had been on duty when the applicant ’s son had arrived at the hospital , namely doctors GPE , ORG and GPE ; the orderly , GPE ; nurse PERSON and head nurse ORG The investigators also questioned R.D.M. , the taxi driver who had transported the applicant ’s wife and son to the hospital , and PERSON , the applicant ’s neighbour who had accompanied them .

On DATE , at the request of ORG , ORG notified the police that their internal inquiry had been unable to identify the individual who had directed the applicant ’s wife and her son to a different unit of the hospital , because all those questioned had stated that they did not know who had done so .

On DATE , the applicant submitted before ORG an opinion drafted by a forensic medical expert chosen by him . It criticised the conclusions of the medical forensic documents produced in the case and recommended that a new forensic expert report be produced .

On DATE ORG informed ORG that in accordance with LAW and their professional duties , the medical personnel of ORG emergency unit had been under an obligation to provide medical assistance in cases similar to that of the applicant ’s son . However , only a doctor had had the power to decide on the situation and the medical procedure that needed to be followed in respect of the applicant ’s son after a medical examination . The applicant ’s son had not been provided with the required medical assistance because the child ’s mother had rushed him out of the emergency unit once she had been directed by an unidentified individual , without having entered a doctor ’s office . Therefore the child had never been examined by CARDINAL of the doctors on duty that day . Although the medical personnel who had been on duty in the hospital reception area DATE had been questioned , the inquiry carried out by the disciplinary board of ORG had been unable to identify the person who had redirected the applicant ’s wife .

On DATE ORG informed ORG that in their opinion , given the serious condition of the applicant ’s son , had he been seen by CARDINAL of the on - duty doctors , they could have treated him in the emergency unit . Moreover , the child ’s condition did not warrant a decision to direct him elsewhere for treatment .

On DATE , the applicant reiterated his request for a new forensic expert report .

On DATE , the higher forensic review board of ORG notified ORG that under the relevant domestic legislation , a new forensic expert report could not be ordered unless there were new medical and factual elements , given that the review board had already issued its opinion on DATE .

By an order of DATE ORG instituted criminal proceedings ( a ȋnceput urmărirea penală ) against the head nurse , ORG , for negligence while on duty because he had failed to notify the head doctor and had not taken measures to stabilise the condition of the applicant ’s child , who had been brought to the hospital in a critical condition . At the same time , the prosecutor ’s office continued to investigate PERSON for aggravated involuntary manslaughter and PERSON and nurse PERSON for negligence while on duty .

On DATE ORG informed ORG that under the relevant domestic legislation it was competent to organise and control the nursing profession . However , the applicant had failed to lodge a formal complaint about the events of CARDINAL DATE . Although , following press reports , the organisation had carried out a preliminary inquiry into the death of the applicant ’s son , it appeared from the available evidence and the inquiry already launched by the organisation into the case that the accusations had been targeted at doctors . ORG was not competent to institute disciplinary proceedings against doctors .

On DATE and DATE , the applicant again reiterated his request for a new forensic expert report . He also requested that PERSON and the nurses who had assisted him during the surgery be subjected to a polygraph test .

On DATE and CARDINAL DATE , the authorities investigating the case confronted head nurse ORG with witnesses GPE , PERSON and PERSON

On DATE , ORG dismissed the applicant ’s request for a new forensic expert report on the grounds that the autopsy report prepared by ORG had been approved by ORG review board and the higher forensic review board of ORG . The latter board had confirmed the accuracy of both the methodology used and the conclusions of the autopsy report . The inconsistencies claimed by the applicant between the autopsy report and the board ’s report had been irrelevant in determining the cause of death and whether the doctor who had performed the surgery had committed any medical errors . The prosecutor ’s order of CARDINAL November CARDINAL for a new forensic expert report had not been carried out and was no longer required in the case for the reasons outlined above . Polygraph testing as a means of establishing evidence was not regulated by LAW and therefore was not required for the case .

By order of DATE , ORG , relying on LAW , decided to discontinue the criminal proceedings ( scoaterea de sub urmărire penală ) against head nurse ORG for negligence while on duty and not to institute criminal proceedings ( neînceperea urmăririi penale ) against PERSON , for aggravated involuntary manslaughter , and against PERSON and nurse GPE for negligence while on duty , on the grounds that their actions lacked the elements of an offence . The prosecutor ’s office held that the clinical and medical investigation , as well as the tonsillectomy performed by PERSON , had been adequate and that no omissions or negligence could be established in his conduct towards the victim . In addition , none of the medical personnel of ORG emergency unit had spoken with the applicant ’s wife in order to direct her to the paediatric unit , and the professional duties of head nurse ORG did not include the required power of decision . The applicant challenged the order before the superior prosecutor .

By a final order of DATE , the superior prosecutor rejected the applicant ’s challenge , holding that the available evidence proved that the accused could not be held liable for directly causing the death of the applicant ’s son . PERSON had observed all the lawful procedures when he had performed the surgery , and the medical community accepted that the severe inflammation which had led to the child ’s death had been a rare case . As regards the medical staff of ORG emergency unit , it could not be established without any doubt whether the child had been alive on his arrival at the hospital . The applicant challenged the order before the domestic courts , arguing that the investigating authorities had failed to produce all the necessary evidence , in particular a new expert report .

By a judgment of DATE , ORG dismissed the applicant ’s complaint as lodged outside the statutory timelimit . The applicant appealed on points of law ( recurs ) against the judgment .

On DATE , ORG allowed the applicant ’s appeal on points of law , quashed the judgment and remitted the case to the first - instance court .

By a judgment of DATE , ORG dismissed the applicant ’s challenge on the basis of the available testimonial , documentary and forensic evidence by relying on LAW . It held that none of the defendants who had been on duty at FAC emergency unit when the applicant ’s wife had arrived with her son had had a direct conversation with her or directed her to the paediatric unit . The job description of the head nurse , ORG , did not give him the power to make such a decision . In addition , a new forensic expert report was not necessary for the case . The higher forensic review board of ORG appealed on points of law against the judgment . He argued that a new forensic expert report had been needed in order to clarify the causes and circumstances of his son ’s death .

By a final judgment of DATE , ORG dismissed the applicant ’s appeal on points of law . It held that in spite of the efforts made by the criminal investigators and the court itself , it could not be established beyond any doubt that the person who had directed the applicant ’s wife to the paediatric unit was a staff member of the emergency unit of ORG on duty at the time of the death of the applicant ’s son . There had been no evidence in the file that the applicant ’s wife had spoken to a doctor and that the doctor had decided to direct her to the paediatric unit . As for the medical papers , which the court considered to be the actual object of the applicant’

The applicant instituted disciplinary proceedings against Dr PERSON before the disciplinary board of ORG .

By a decision of CARDINAL DATE , the medical council concluded that there were no elements of medical fault .

The applicant challenged that decision before the higher disciplinary board of ORG ( “ the Higher Board ” ) , arguing that not only had PERSON been exonerated , but none of the medical personnel on duty at FAC emergency unit had been held accountable .

By a decision of DATE , ORG dismissed the applicant ’s challenge . It held that , on the basis of the available forensic evidence , otolaryngologists’ opinions and the medical doctrine , the death of the applicant ’s son had been caused by a slow haemorrhage located in the cavity of the tonsils . This had been triggered by a local acute inflammatory lesion , which had resulted in the rupture of a small blood vessel , probably after the child had swallowed hard food without chewing it sufficiently . The vascular necrosis which caused the haemorrhage was the result of local inflammation and could not have been diagnosed prior to the time at which it had occurred . It could not have been foreseen by a post - surgical examination of the area operated on . Consequently , the doctor had not breached the rules of good medical conduct .

ORG also upheld the outcome of the internal inquiry carried out by ORG . It noted that the inquiry had been unable to identify the person who had directed the applicant ’s wife to the paediatric unit and therefore no administrative sanction could be applied . The applicant did not appeal against the decision of ORG before the domestic courts .

The relevant domestic legal provisions concerning the delivery of expert forensic medical reports and the authorities competent for issuing them , as well as the relevant domestic law and practice concerning the civil liability of doctors and hospitals for medical errors , are described in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , § DATE , DATE ) .

The relevant provisions on civil liability for tort of the former NORP Civil Code read as follows :

“ Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”

“ Everyone shall be liable for damage he has caused not only through his own actions but also through his failure to act or his negligence . ”

The provisions of the former NORP Code of Criminal Procedure regarding the instituting of civil proceedings alone or in conjunction with criminal proceedings read as follows :

“ ( CARDINAL ) If a victim has not joined criminal proceedings as a civil party , he or she may bring separate proceedings for damages caused as a result of the offence before the civil courts .

( CARDINAL ) Civil proceedings shall be suspended pending a final judgment of the criminal courts ... ”

Articles CARDINAL(CARDINAL ) and CARDINAL of the former NORP Civil Code provide that those responsible for the supervision and control of a person whom they have appointed to perform a duty are liable for any damage caused by the appointed person in the performance of his or her functions . If several persons are responsible for the damage caused , they are jointly liable for redress .

Law no . CARDINAL/CARDINAL on health - care reform , in force as from DATE , introduced the notion of medical negligence and created an obligation for medical personnel to obtain insurance for any civil liability resulting from their work . Its relevant provisions read as follows :

“ ( CARDINAL ) ORG personnel ... who provide medical assistance , within the public and/or private system , in a place specifically designated for this purpose or outside such a place further to an express request from the person / s requiring the medical assistance or from a third party requesting assistance for CARDINAL or more persons who , for no fault of their own , are unable to request such assistance , shall be insured against medical negligence covering professional civil liability for damage caused through a medical act .

( CARDINAL ) A copy of the insurance policy shall be presented before the conclusion of an employment contract , being a mandatory condition for employment . ”

“ ( CARDINAL ) The insurer shall grant compensation for damage for which the insured person is liable , in accordance with the law , to third parties who are ascertained to have been subjected to an act of medical negligence , as well as for the legal fees of the person damaged through the medical act .

( CARDINAL ) Damages shall be awarded irrespective of the place where the medical assistance was provided .

( CARDINAL ) The mandatory insurance ... shall comprise all types of medical treatment provided within the specialty and medical competency of the insured person and within the whole range of medical services offered by the relevant units . ”

“ ( CARDINAL ) Damages shall be awarded for the amounts the insured person is obliged to pay as indemnification and legal fees to the person / s damaged through the provision of inadequate medical assistance , which may have triggered bodily injury or death .

( CARDINAL ) In the event of death , damages shall be awarded to the patient ’s legal successors who have requested them .

( CARDINAL ) Damages shall be awarded also in the event that medical assistance was not granted even though the condition of the person / s who requested it or for whom medical assistance was requested required such intervention .

( CARDINAL ) Damages shall include potential expenses incurred by a lawsuit in which the insured person is ordered to pay them ; the maximum liability for legal fees shall be set out in the insurance policy . ”

“ Acts of medical negligence within the medical activities of prevention , diagnostic and treatment shall be time - barred DATE from the occurrence of the damage , except for acts that constitute criminal offences ” .

The relevant provisions of Decree no . CARDINAL/CARDINAL on the statute of limitation in force at the relevant time read as follows :

“ The right to lodge an action with a pecuniary scope shall be time - barred , if it was not used within the prescribed period . ”

“ The term of the statute of limitation is DATE . ”

The Government submitted several final court judgments concerning proceedings instituted by victims or doctors against the disciplinary decisions of medical councils in respect of cases of medical negligence . CARDINAL final judgments rendered by ORG and ORG on DATE and DATE , respectively , dismissed the appeals brought by the victims against the decisions of the medical councils not to pursue disciplinary proceedings against the doctors . CARDINAL final judgments delivered by ORG and ORG from DATE to DATE dismissed the ORG appeals against the decisions of the medical councils whereby sanctions were applied to them .

The Government further submitted CARDINAL final judgment delivered on CARDINAL DATE by ORG allowing the victim ’s general tortlaw action for joint pecuniary and non - pecuniary damage against the hospital and the doctor who had operated on the victim in DATE by also relying on LAW .


Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani

NORP The applicant company , ORG , was registered in GPE , GPE in DATE . It was represented before the ORG by Dr PERSON and PERSON , lawyers practising in PERSON .

NORP The applicant company owned CARDINAL pieces of land which were expropriated by the Government on CARDINAL DATE . The case before the ORG only concerns CARDINAL of those CARDINAL ( the sixth one ) .

NORP In so far as relevant , on DATE the applicant company was informed , by means of a notice to treat , that it was being offered CARDINAL NORP liri ( ORG MONEY ( ORG ) ) for the ( sixth ) piece of land , which measured CARDINAL sq.m .

NORP By means of a judicial letter of DATE the applicant company refused the offer and claimed compensation amounting to ORG CARDINAL ( ORG CARDINAL ) based on an ex parte architect report which considered that , according to the ORG ’s architect ’s valuation , part of the land was agricultural land .

In the absence of any agreement , in DATE , the applicant company instituted constitutional redress proceedings , complaining under LAW to LAW about the delay in the payment of compensation ( in respect of all the pieces of land ) . The applicant company was successful and by a final judgment of CARDINAL DATE ORG awarded it LAW in compensation for non - pecuniary damage . The costs were to be borne by both parties .

Pending the above constitutional proceedings and following action taken by the Commissioner of LOC , on DATE proceedings before ORG ) were commenced to determine the compensation due .

In DATE , pending those proceedings , the Government returned part of the land to the applicant company . In consequence the remaining part of the sixth piece of expropriated land amounted to an area of CARDINAL sq.m .

The LAB were not informed of the return of the property .

During the proceedings , technical experts appointed by the ORG established the value of the ( entire ) sixth piece of land as ORG CARDINAL , considering that for the most part , it was to be classified as building land .

By a decision of CARDINAL DATE the LAB awarded the applicant company compensation for the CARDINAL pieces of land mentioned in paragraph CARDINAL above . In connection with the sixth piece of land , the subject of the proceedings before the ORG , the ORG awarded ORG CARDINAL,CARDINAL ( for the entire piece of land ) . It referred to LAW , which provided that where the technical members of the board were unanimously in agreement , the board was bound to award compensation in accordance with the valuation of the technical members . It also awarded interest and ordered that the costs be divided by the parties in proportion .

NORP The Commissioner of Lands appealed , claiming , inter alia , that ORG had wrongly applied the law in determining the compensation , because by means of transitory provisions enacted in DATE the LAB could now no longer award more than a claimant would have claimed .

During the proceedings the applicant company pleaded that the application of the relevant provisions of ORG had breached its rights under LAW No . CARDINAL to the LAW .

By a judgment of DATE ORG upheld the appeal in so far as Article GPE ) of the GPE had retroactive application in terms of the transitory provisions contained in LAW . It followed that the award of compensation could not exceed that claimed by the applicant company . Adjusting the claim to the area of the sixth piece of land which had not been returned and for which the applicant company was owed compensation , the court awarded the applicant company ORG CARDINAL,CARDINAL and ordered it to pay costs . As to the constitutional plea raised by the applicant company in this regard , ORG held that this legal matter had already been examined in CARDINAL constitutional cases , namely Commissioner of GPE vs PERSON , of DATE and ORG vs Director of Lands of DATE , in which it was held that there had been no breach of the claimants’ property rights given that they had been awarded the sum they had actually requested in compensation ( irrespective of the fact that the independent architects had estimated the land to be worth more ) .

The applicant company did not institute a new and separate set of constitutional proceedings to complain about the matter , considering that it would be futile given the established case - law .

NORP Before the DATE amendments described below , in awarding compensation for the value of the land the Chairman of the ORG was bound by the valuations given by CARDINAL experts ( which formed part of the LAB ) , when these were unanimous in their valuation .

Act XVII of DATE added a proviso to LAW Ordinance , LAW of LAW , amending it to read as follows :

“ ( CARDINAL ) The ORG shall be competent –

( e ) to assess the amount of compensation payable under any of the provisions of this LAW and for that purpose to declare whether any area is a building site or agricultural or waste land ;

... Provided that the amount of compensation to be assessed by ORG in accordance with the provisions of paragraph ( e ) , shall not exceed the higher amount of compensation as proposed by any of the parties . ”

The transitory provision , section CARDINAL(CARDINAL ) of LAW , reads as follows :

“ The provisions of Articles DATE and CARDINAL of the Ordinance as amended by this section shall apply to any proceedings relating to any land covered by any declaration issued LAW , even if issued prior to the date of the coming into force of this section . ”

The relevant parts of Article PERSON ) of the GPE , regarding compensation , read as follows :

“ ( CARDINAL ) Without prejudice to any special provision contained in this LAW , in assessing compensation the ORG shall act in accordance with the following rules :

( a ) no allowance shall be made on account of the acquisition being compulsory ;

( b ) the value of the land shall , subject as hereinafter provided , be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise : ( ... ) ”

In circumstances similar to the present case , ORG examined , inter alia , the complaint of the claimants in that case concerning the retroactive application of LAW , which had allegedly violated their legitimate expectation to compensation as established by the laws in force at the time of the taking , thus denying them part of their compensation .

By a judgment of DATE ORG DATE which was bound ( by procedural rules ) to look into the matter only under LAW No . DATE found no violation of the claimants’ property rights .

It considered that before LAW could have awarded compensation higher than that requested by the parties , so rather than clarifying the law the LAW limited the compensation that could be awarded . Nevertheless , the claimants did not have a “ possession ” within the meaning of LAW No . CARDINAL , in that they had had no legitimate expectation of receiving an amount higher than that established by their ex parte expert , which they had claimed . Specific to that case the court noted firstly that when LAW had come into effect the report of the new architects had not yet been included in the case file . Secondly , before LAW the claimants had not claimed compensation higher than that awarded , and thirdly , when the tribunal architects were appointed the claimants had been aware of the new legislation . Moreover , the claimants had received fair compensation since they had been awarded the entire sum they had asked for . ORG noted that it was clear that the valuation made by the experts appointed by the tribunal was in stark contrast to the valuations made by the previous architects and the ex parte experts ; their valuation was therefore arbitrary and disproportionate , as no reasons had been given to justify the huge difference . LAW had therefore not violated the claimants’ rights under LAW No . CARDINAL .

In circumstances similar to those in the present case , the claimants raised a constitutional issue arguing that the application of the relevant proviso of LAW in their case had breached their right to fair compensation . The issue was raised before ORG before which they were appealing against a decision of the ORG awarding them compensation . ORG shared the conclusions of ORG in the case of Commissioner of Lands vs PERSON of DATE and dismissed the claim on the basis that the claimants had obtained the sum they had requested .


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

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

The applicant was born in DATE and lives in GPE .

On DATE , at TIME , ORG lodged a criminal complaint with ORG FAC uprava DATE “ the police ” ) alleging that during TIME the applicant had raped her . He had offered to drive her home from bar A. , where she worked , but had then driven into the nearby woods and raped her in his car . She had then asked him to drive her to a TIME - club , “ S. ” , where he had dropped her off and left .

The applicant was arrested on TIME and GPE identified him as her rapist .

During TIME ORG was examined by a doctor who found no injuries on her body or genitals . The applicant was also taken to a doctor and the doctor found abrasions on his right upper arm and elbow and his right knee .

On DATE the applicant was questioned by an investigating judge of ORG ( Županijski sud u GPE ) . He admitted to having had sexual intercourse with ORG in his car but argued that it had been consensual . He contended that the abrasions on his right arm and leg were the result of friction during the intercourse . After the questioning the applicant was released .

On DATE and DATE ORG ’s lawyer asked the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u GPE ) to request the investigating judge to have the applicant detained on the grounds that he had been trying to contact GPE , threatening her in order to make her withdraw her criminal complaint . She also argued that ORG had sought psychiatric help and submitted medical reports in that connection .

On DATE the GPE State Attorney ’s ORG asked the investigating judge of ORG to open an investigation in respect of the applicant on charges of rape and to order his detention on the basis of the information submitted by GPE

The investigating judge opened the investigation on DATE but refused to order the applicant ’s detention on the grounds that there was no reliable evidence suggesting that he might influence the witness or reoffend .

On DATE ORG , in the presence of her lawyer , gave oral evidence at a hearing before the investigating judge . The applicant and his defence lawyer were not informed of the hearing and were not present during the questioning .

During the questioning , ORG reiterated her previous allegation that the applicant had raped her .

On DATE the GPE State Attorney ’s ORG lodged an appeal with a CARDINAL - judge panel of ORG against the investigating judge ’s decision refusing the request for the applicant ’s detention .

The CARDINAL - judge panel granted the application and on DATE ordered the investigating judge to re - examine the request for detention .

On DATE the investigating judge again dismissed the request for the applicant ’s detention on the grounds that there were no relevant reasons for his remand in custody . The GPE State Attorney ’s ORG appealed , but on DATE a CARDINAL - judge panel upheld that decision .

In the course of the investigation the investigating judge heard several witnesses and commissioned medical reports .

On DATE FAC , a colleague of ORG , testified before the investigating judge that she had been working with ORG in bar NORP on DATE in issue and that when ORG had wanted to go home , ORG had asked the applicant to give her a lift . DATE , ORG had told her that she had been raped by the applicant . ORG had also seen the applicant later , and he had denied the rape accusation , stating that ORG had had sex with him voluntarily . ORG also stressed that she knew the applicant well and she had never heard of him attacking girls or doing anything of that kind .

An expert medical report of DATE found that the reports on ORG ’s gynaecological and psychiatric examination showed no objective evidence of any injuries .

On DATE the investigating judge heard evidence from ORG , who stated that on TIME in issue he had been working as a musician in the TIME - club “ S. ” when ORG had come in . She had bought a drink for the musicians and then he had taken her home . There had been nothing unusual about her ; she had appeared normal and had not made any mention of rape .

Another witness , PERSON , was questioned on DATE . She stated that on TIME after the event GPE had come to a bar where she worked and told her that she had been raped TIME . She had been very distressed and frightened . PERSON had told her to report the rape to a policeman who had been in a nearby bar .

A forensic report of DATE found biological traces from GPE on the applicant ’s underwear .

An expert medical report of DATE found that the abrasions on the applicant ’s right upper arm could have resulted from finger nail scratches , while the injuries on his elbow and right knee could have been the result of a fall or friction .

On DATE the GPE State Attorney ’s ORG indicted the applicant in ORG on charges of rape .

At a hearing on DATE the applicant pleaded not guilty . ORG , although properly summoned , failed to appear .

On DATE ORG instructed the police to take GPE to the hearing , scheduled for DATE .

On DATE TIME , through her lawyer , informed ORG that she was living abroad and asked that the hearing be postponed until DATE when she would be in GPE . ORG agreed to her request and scheduled a hearing for DATE .

At the hearing on DATE ORG , although properly summoned , again failed to appear . Her lawyer , present at the hearing , informed the trial court that meanwhile she had not had any contact with GPE

On DATE ORG again ordered the police to take GPE to a hearing scheduled for DATE .

NORP However , that hearing was again adjourned because the police were unable to locate GPE The only information available was that she had been living in GPE for DATE .

On DATE ORG ’s lawyer informed the trial court that she was no longer representing GPE

On DATE the ORG requested the police to establish ORG exact address , and the police informed it that the only information available was that she was living in GPE .

After several adjourned hearings , on CARDINAL DATE a hearing was held at which the applicant pleaded not guilty . The Deputy ORG Attorney asked the trial court to admit in evidence the written record of GPE ’s oral statement given to the investigating judge . The defence opposed that request , arguing that given the gravity of charges against the applicant it was necessary to question ORG at the hearing . The defence also stressed that she was a NORP citizen and that her whereabouts in GPE could be established through the relevant police records and the appropriate diplomatic channels .

On DATE the police informed ORG that from an interview with ORG mother they had learned that ORG was living in GPE , GPE , and that she would be in GPE for DATE during DATE .

At a hearing on DATE the trial court heard evidence from the witness ORG , who reiterated his statement given to the investigating judge ( see paragraph CARDINAL above ) . The Deputy State Attorney again requested the trial court to admit in evidence the record of GPE ’s oral statement to the investigating judge . The defence insisted that she should be questioned and provided an address in the GPE where she allegedly resided .

On DATE the ORG requested that ORG be summoned to a hearing by means of international legal assistance in criminal matters through the authorities in the GPE .

On DATE ORG was informed that the authorities in the GPE had not been able to serve the court summons on ORG

At a hearing on DATE the trial court heard evidence from the witness FAC , who reiterated her previous statement ( see paragraph CARDINAL above ) . The Deputy State Attorney requested that the record of GPE ’s oral evidence to the investigating judge , as well as the records of the statements of the witness PERSON , who had never appeared before the trial court , and the witness ORG , be admitted in evidence without their questioning at the hearing . The defence agreed with regard to admitting the written statements of the other witnesses but insisted on that ORG should be questioned at the hearing . The trial court agreed to the prosecution ’s request and admitted the written record of ORG ’s oral evidence given before the investigating judge as evidence .

On DATE , ORG found the applicant guilty on the charges of rape and sentenced him to DATE imprisonment .

On DATE the applicant lodged an appeal with ORG ( PERSON ) against the first - instance judgment , complaining that ORG had failed to secure the presence and examination of GPE at the trial .

On DATE ORG quashed the first - instance judgment and ordered a retrial . ORG found that ORG had failed to take all reasonable steps to secure the presence of GPE at the trial even though her evidence was decisive for the case .

During the retrial , on DATE ORG requested that ORG ’s whereabouts in GPE be established through contacting the NORP national authorities by means of international legal assistance in criminal matters .

On DATE the police informed ORG that they had obtained ORG address in GPE from her parents , and the trial court summoned GPE from that address .

On DATE the ORG received information from the NORP authorities in respect of ORG exact address and telephone number in GPE .

A hearing scheduled for DATE was adjourned because ORG failed to appear . There was , at the time , no information on whether she had received the court summons .

Another hearing was held on DATE at which the trial court found that ORG had been properly summoned both to that hearing and to the hearing of DATE .

At the hearing the applicant pleaded not guilty to the charges of rape and the trial court again questioned the witness ORG , who reiterated his previous statements . The Deputy State Attorney asked for all the witness statements to be admitted in evidence without the questioning of the witnesses . The defence agreed to this save for the evidence of ORG , insisting that she should be cross - examined at the trial and pointing out that the defence had been denied the opportunity to question her when she had given her statement to the investigating judge . The trial court accepted the Deputy ORG Attorney ’s proposal and admitted the written record of ORG ’s oral statement to the investigating judge as evidence . However , it adjourned the hearing in order to question another witness on behalf of the defence , GPE

At a hearing held on DATE the ORG noted that ORG had died and concluded the trial . On DATE it found the applicant guilty of the charges of rape and sentenced him to DATE imprisonment . The trial court relied on the statement given by ORG and held that it had been corroborated with other evidence . In particular , it noted :

“ It follows from the statements given by witnesses ORG and [ PERSON ] , and the evidence provided by the forensic expert and other medical evidence concerning the victim , that the relevant ( so - called control ) facts , important for the assessment of contradictory statements of the accused and the victim , support the statement given by the victim . ”

On DATE the applicant lodged an appeal with ORG complaining that the first - instance court had failed to take all reasonable steps to secure the presence of ORG at the trial and that her evidence had been crucial for his case .

On DATE ORG dismissed the applicant ’s appeal and upheld the first - instance judgment . The relevant part of ORG judgment reads :

“ As can be seen from the case file , after the investigation had been opened on DATE ... the victim ORG was questioned as a witness on DATE ... The accused had been legally represented ever since CARDINAL May CARDINAL ... and the defence counsel did not ask to be present during the questioning of this witness , within the meaning of LAW , nor did any circumstances at the time suggest that she might be absent from the hearing . Following the investigation , and after the accused had been indicted [ in ORG ] , the victim ’s representative informed the court that ‘ ... the victim is at the moment working abroad and therefore she is unable to appear at the trial , so she has asked if the hearing can be adjourned until DATE , when she will be in GPE ... ’ ... The victim failed to appear at the hearing of DATE , although she had been properly summoned ... After that , on DATE , ORG informed the court that the they had learned from the victim ’s father that she ‘ [ had ] been living in GPE for DATE and he [ did n’t ] know when she [ would ] return.’ ... On DATE the court was again informed that she ‘ ... work[ed ] in Spain’ ... Following ORG further investigations into GPE ’s whereabouts , on DATE the court was informed that she lived in GPE , GPE , ‘ with her husband’ ... However , after her exact address in GPE had been established , as this court had requested in its earlier decision , the court summoned the victim twice to a hearing ... Although she was properly summoned , she failed to appear and did not give any reason for her absence .

Thus , the victim ORG was questioned during the investigation as required by law , after which it appears she did not want to appear at the hearing , although she did not give reasons for her absence . Since she lived abroad the trial court had no way of securing her presence at the hearing and therefore it rightly decided , under LAW ) of LAW , to read out the written record of her oral statement . ”

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , reiterating his previous complaints .

On DATE ORG dismissed the applicant ’s constitutional complaint as ill - founded , endorsing the reasoning of the lower courts . The decision of ORG was served on the applicant ’s representative on DATE .


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

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

The applicant was born in DATE and is currently detained in FAC . He is a person with special needs . The applicant is deaf and mute since birth and his knowledge of sign language is poor .

At least as of DATE , when his disability was certified as permanent , the applicant has been recognised as being category CARDINAL disabled ( the least severe level of disability ) . On an unspecified date his disability was re - categorised as category CARDINAL ( medium level of disability ) .

On DATE the applicant was convicted of aggravated murder and sentenced to DATE and CARDINAL months’ imprisonment . That judgment became final on DATE . He started serving his sentence in the most restrictive “ lower ” regime in FAC .

On DATE the applicant was transferred to FAC . He was placed in the medium regime as he had served CARDINAL of his sentence . He was held in cell no . CARDINAL ( from DATE to CARDINAL DATE ) and cell no . CARDINAL ( from DATE to DATE ) .

On DATE the applicant was placed in the most restrictive “ lower ” regime . He was held in cell no . CARDINAL ( from DATE until DATE ) .

On DATE the applicant was placed in the least restrictive “ higher ” regime . It appears that as of that date he was held in CARDINAL different multi - occupancy cells . The number of his cellmates varied from CARDINAL . Each inmate had CARDINAL sq . m of living space in those cells .

According to the applicant , he was held in dormitorytype cells CARDINAL . FAC , CARDINAL and CARDINAL together with other inmates , all of whom were in good health except for the applicant . The applicant ’s submissions as to the overall surface area in those cells as well as the size of the sanitary facilities were consistent with the ORG ’s submissions ( see paragraph CARDINAL below ) . His account of the number of inmates was slightly different – he alleged that he had been held together with CARDINAL inmates in cells QUANTITY CARDINAL . However , as concerns cell no . CARDINAL he agreed with the Government DATE inmates had been held in that cell .

NORP The applicant submitted that the heating had not been sufficient in those cells . He had been neither able to communicate with other inmates , nor with the prison management due to his disability . He had been in social isolation and had not received any special assistance .

According to the ORG , the applicant was held in CARDINAL different cells , the conditions of which are detailed in the table below . The calculation of personal space ( overall surface area with the in - cell sanitary facility deducted , divided by number of inmates held therein ) is based on an approximate measurement of the sanitary facility according to the floor plans of FAC .

As regards out - of - cell activities , the Government indicated that while being held in the medium regime DATE in cells CARDINAL . FAC and CARDINAL – the applicant had been able to freely leave those cells in TIME and to use the common area . The Government further submitted that cell no . FAC had been equipped with CARDINAL window . That window had been fitted with bars and had been placed in a wall ( adjacent to a corridor ) facing another window ( in the corridor ) . This cell had had CARDINAL fluorescent lamps , including TIME lamp located above the door . Heating had been provided by CARDINAL heating pipe of QUANTITY in diameter and the heaters located in the adjacent corridor and in the hallway . A new automatic boiler had been installed in FAC , which had ensured a temperature of ORG arrangements in cell no . CARDINAL had been the same as in cell no . CARDINAL .

While being held in the most restrictive “ lower ” regime DATE in cell no . DATE the applicant had been able to leave this cell only for a DATE walk ( TIME ) , to take a shower or for appointments with a doctor , a prison chaplain or a social worker when necessary .

Overall , inmates in FAC had had access to a psychologist , but the applicant had never availed himself of this possibility . He had , however , met with a prison chaplain and a social worker on several occasions . The Government provided records of CARDINAL conversations between the applicant and a social worker in DATE , including a meeting on CARDINAL DATE where the latter had called a non - governmental organisation ( ORG ) concerning the applicant ’s hearing aid . Lastly , the applicant had visited a psychiatrist at least on six occasions in the time period from DATE to CARDINAL DATE .

On DATE the state of the applicant ’s health was examined for the first time in FAC . It was noted that the applicant was deaf and mute and that he suffered from spondylosis .

The applicant submitted an extract of his medical record in FAC . According to that document ( dated DATE ) , he had been deaf since birth . On CARDINAL DATE a psychiatrist had detected a psychiatric health condition ( psihiskas veselības problēmas ) , namely , “ reaction to situations with anxiety ” ( situācijas reakcija ar trauksmi ) . On DATE the same psychiatrist had detected another sleep - related condition . On DATE another psychiatrist diagnosed the applicant as having “ organic personality disorder ” ( organiski personības traucējumi ) .

The Government submitted another extract of the applicant ’s medical record in FAC . According to that document ( dated DATE ) , upon admission to FAC the applicant had been diagnosed as being deaf and mute and having spondylosis . During the above - mentioned period the applicant had consulted prison medical staff on thirtynine occasions . He had been examined , treated and provided with medication when necessary . No serious health conditions , which would have required an indepth examination , had been diagnosed . There had been no indications that outpatient examination or treatment had been necessary . The applicant had most often complained of colds , headache , poor sleep , gastritis and back pain related to spondylosis . Those complaints had not concerned his disability . In DATE and DATE the prison medical staff had organised an outpatient medical examination ( in relation to tuberculosis ) and a consultation by an ophthalmologist to obtain glasses . On DATE , upon the request of ORG ( PERSON vietu pārvalde ) , the applicant ’s state of health had been examined . It had been satisfactory , he had not had any complaints and he had gained weight while in prison . In sum , his health had not deteriorated .

NORP Over the course of DATE ( DATE ) the applicant lodged CARDINAL handwritten complaints with various institutions ( the management of FAC , ORG , ORG and ORG ) .

He informed the authorities that he had been deaf and mute since birth and complained as follows :

CARDINAL ) NORP he had communication problems and conflicts with other inmates ( he referred to “ conflicts ” , having been “ influenced ” , “ offended ” and “ laughed about ” by other inmates ) ;

CARDINAL ) NORP he wished to be transferred to a single or dual - occupancy cell ;

CARDINAL ) he wished to be transferred to another prison ;

CARDINAL ) he wished to have his prison regime changed ;

CARDINAL ) his conditions of detention were inadequate and

CARDINAL ) his medical care was inadequate .

His complaints were examined by ORG , save for CARDINAL of them that were examined by the management of FAC .

The following conclusions were made :

( CARDINAL ) There had been no real threat to the applicant ’s life or health in FAC . He had not been subjected to psychological harassment . His complaints to the management of FAC had not concerned any threats from other inmates .

( CARDINAL ) The applicant did not have a subjective right to choose his cell or cellmates . It fell within the competence of the management of ORG . There was a limited number of cells with a capacity of CARDINAL inmates and those inmates could not be moved for security reasons .

( CARDINAL ) The decision concerning the applicant ’s transfer to another prison had to be taken by ORG . Taking into account that the applicant ’s state of health had permitted his placement in any prison , there had been no grounds to transfer him to another prison ; he had had to continue serving his sentence in FAC .

( CARDINAL ) The possibility of his transfer to the most lenient prison regime could not be examined before DATE , when he would have served the relevant proportion of his prison sentence . As to the possibility of his transfer back to the more restrictive prison regime such actions could only be taken in cases of serious or systematic breaches of the prison regime .

( CARDINAL ) The conditions in cell no . CARDINAL had been adequate . It had measured CARDINAL sq . ORG and artificial lighting as well as heating had been sufficient . The temperature in cell had been CARDINAL˚C.

The conditions in cell no . CARDINAL had been similar to cell no . CARDINAL – lighting and heating had been adequate .

The conditions in cell no . CARDINAL had been adequate . According to ORG and the relevant floor plans that cell had measured CARDINAL sq . m ( including QUANTITY . m for sanitation facilities ) . Besides the applicant , it had accommodated CARDINAL other inmates . A reference was made to the ORG ’s case - law and the applicable domestic standard of QUANTITY . m per male inmate . The temperature in the cell had been CARDINAL˚C.

( CARDINAL ) The applicant ’s medical care had been carried out in accordance with domestic law . He had received the necessary medication in response to his complaints . He had never complained to prison doctors of “ neurological diseases ” , “ noises ” or “ fears ” , but he had had CARDINAL consultation with a psychiatrist . In any event , he had been able to complain of the quality of medical care in prison to ORG .

On DATE a judge of a first - instance court refused to allow the applicant ’s application to be transferred to another prison and to have his prison regime changed to a more restrictive one , a request made by the applicant in order to allow him to be held in a cell with a smaller number of inmates . Those issues fell within the realm of criminal law and could not be examined by the administrative courts .

On DATE another judge refused to allow the applicant ’s application to be transferred to another prison and to be relieved from the obligation to continue serving his sentence . As concerns his transfer , reference was made to the decision by ORG whereby a conclusion had been drawn that LAW had not applied . As concerns judicial review of that decision , such a complaint had already been examined ( see paragraph CARDINAL above ) . As concerns the release application , it fell within the realm of criminal law ; this issue could thus not be examined by the administrative courts .

The applicant attempted to appeal against the above - mentioned refusals , but his appeal did not appear sufficiently clear . Accordingly , on DATE another judge decided not to proceed with his appeal ( atstāt bez virzības ) , asking the applicant to render it more precise .

On DATE another judge examined further complaints by the applicant . His application to be transferred to a more lenient prison regime and another prison were refused because such complaints had already been examined ( see paragraphs CARDINAL above ) . His complaint about insufficient heating in FAC did not appear sufficiently clear ; the judge decided not to proceed with it , asking the applicant to render it more precise . As the applicant did not provide further information , the latter complaint was considered as not submitted ( uzskatīt par neiesniegtu ) .

On DATE the applicant complained to the administrative courts that ORG had extended the time - limit for its last reply . On DATE a judge terminated the administrative proceedings in this connection since ORG had issued its decision in the meantime .

On DATE a panel in FAC examined the possibility of the applicant ’s transfer to a more lenient prison regime . The applicant and a sign - language interpreter were present . It was established that the applicant had been working in prison until DATE ; he had stopped working owing to his state of health . He had a category CARDINAL disability . He had completed secondary education but had not pursued his education further owing to being deaf and mute and needing a specialised learning programme . He had been working with an officer and a social worker for rehabilitation purposes . He had regularly visited a chaplain in prison ; however , he had not met with a psychologist . He had participated in addiction recovery meetings . He had dedicated his free time to himself . He had received CARDINAL positive citations ( pamudinājums ) from the prison management .

A conclusion was drawn that the applicant had participated in nearly all the rehabilitation activities provided in the prison taking into account his capabilities . Therefore it was possible to transfer him to a more lenient prison regime in a partly closed prison .

On DATE the applicant was transferred to a partly closed prison in GPE , where he was held in a cell with CARDINAL other inmates . CARDINAL of them had a similar hearing impairment .