CASE OF ILIEVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in FAC .

On DATE the applicant was operated on for stomach cancer and subsequently underwent chemotherapy .

On DATE she had been feeling anxious and distressed , and her husband requested medical assistance from FAC hospital ( QUANTITY from GPE ) . PERSON , a general practitioner , gave an instruction that the applicant was to be transferred to a psychiatric clinic in GPE . PERSON , a specialist in neuropsychiatry in FAC hospital , also gave instructions for her to be transferred to that clinic with police assistance .

Still on DATE , at TIME . , an ambulance arrived at the applicant ’s house in the village of GPE . QUANTITY police officers , who were later identified as GPE and GPE in the subsequent criminal proceedings , assisted with the applicant ’s transfer to the ORG psychiatric hospital in GPE , where she remained until DATE .

The relevant parts of a notice of her discharge , dated CARDINAL DATE from ORG hospital provide as follows :

“ [ This is the ] first admission of ( the applicant ) to this hospital ; it was carried out with the assistance of the police from FAC .

According to the limited information obtained from ( the applicant ’s ) husband by telephone , ( it is known ) that since DATE , when she was diagnosed with and treated for stomach cancer , ( the applicant ) had become ... melancholic , lethargic , and had threatened with committing suicide .

When admitted , [ the applicant ] was malnourished , dehydrated , and had several haematomas of different sizes , most probably of DATE ( најверојатно од понов датум ) ... Concerning her psychological state she was depressed , anxious , tearful , and fixated on her poor state of health ( cancer ) ... she was burdened with depressive ideas and had a paranoid attitude towards her husband , which may be well - founded ...

She is discharged without having been examined or treated , at her husband ’s request . ”

Following her discharge from the hospital in GPE , the applicant was on DATE admitted to FAC hospital . A handwritten medical certificate was issued and entered in the hospital ’s records under no . DATE . At the applicant ’s request a transcript of this certificate was made by PERSON The relevant parts of this certificate state that :

“ [ According to the applicant ] she was handcuffed by the police during her transfer to ORG psychiatric hospital , as instructed by a doctor . Objectively : haematoma measuring CARDINAL x QUANTITY on both forearms around the wrist joints ; CARDINAL hematomas measuring QUANTITY on both lower legs . On the right hip , ( a haematoma ) measuring QUANTITY .

Regarding these injuries , [ the applicant ] says that they were inflicted by kicks and blows . ”

Still on DATE the applicant was also examined by Doctor PERSON ( see paragraph CARDINAL above ) . The relevant parts of the medical certificate issued on that date read as follows :

“ On DATE at TIME . , on a request by ( the applicant ’s ) husband and as suggested in ( a neuropsychiatric opinion ) , the patient was transported to GPE psychiatric clinic . The applicant states that she was abused during the transfer : she was hit and punched on the legs , [ a third person ] sat on her legs , and her hands were handcuffed behind her back . When she arrived she was treated violently by hospital staff .

When examined ... [ the following ] is observed : [ she ] is upset ; a haematoma and a scratch on the lower legs , thus CARDINAL - CARDINAL scratches on the right side measuring CARDINAL x QUANTITY ; on the left side CARDINAL - CARDINAL ( scratches ) measuring CARDINAL x QUANTITY and QUANTITY ; haematomas and ( CARDINAL ) scratches on the stomach measuring CARDINAL x QUANTITY ; CARDINAL scratches on the back measuring QUANTITY ; some small haematomas ...

The patient has visible injuries caused by a trauma , namely hitting and punching .

Opinion : light bodily injury . ”

On DATE Doctor PERSON issued a certificate that on CARDINAL DATE the applicant had been examined and that an instruction had been given for her to be transferred to GPE psychiatric clinic .

In support of the application before the ORG , the applicant provided CARDINAL photographs of her , showing the following injuries : CARDINAL scratches on the lower and middle part of the back ; CARDINAL scratches and a haematoma on her stomach , and several haematomas on the lower legs .

On DATE the police drew up an official note ( службена белешка ) regarding information obtained from Dr S.V. As indicated in the note , GPE decided , “ for the sake of truth ” , to provide relevant information in reaction to a television interview broadcasted on DATE in which the applicant had stated that she was ill - treated by police officers during her transfer to PERSON hospital . During the interview she showed the injuries that she had allegedly sustained . The relevant parts of the note read as follows :

“ ... I want to say that on DATE at TIME . , I was called , through the duty medical centre of FAC hospital , to intervene in an urgent case reported by ( the applicant ’s ) husband . I arrived at a ORG home in FAC , where ( the applicant and her husband ) were waiting . ( The husband ) told me that ( the applicant ) had injured herself , namely that she had hit her body and head against a wall and a bed ; her face was covered with blood , and there was blood on the floor in front of the door . That suggested that she had had a nervous breakdown , for which I prescribed treatment .

In my opinion and in view of the foregoing , it is most likely that the injuries she showed to the cameras were self - inflicted on the date indicated above , which was when I intervened . ”

On DATE PERSON provided information to the police in relation to media statements by the applicant and her husband that the applicant had been ill - treated by the police . PERSON stated that the applicant ’s husband had beaten the applicant on QUANTITY occasions ( she did not specify the exact dates when the alleged beatings had happened , but she confirmed that it had been on “ DATE , DATE and DATE ” ) . She further stated :

“ During the DATE TIME CARDINAL women , most likely journalists , visited [ the applicant ’s husband ] . On the DATE [ the applicant ’s husband ] invited residents to watch on television ‘ how do the police from PERSON work . I put them in a mould ; I ’ll take a lot of money from them’ .

I personally believe that [ the applicant ’s ] injuries were inflicted by [ her husband ] who , while intoxicated , beats her up DATE in front of their children . ”

The note further indicated that CARDINAL individuals ( whose identity was specified ) , together with other residents in the building in which the applicant lived , could be interviewed regarding the case .

On DATE the police informed the applicant ’s husband that on DATE PERSON had made a complaint against him , and that an official note had been drawn up . As stated in the letter , both the applicant ’s husband and PERSON had been advised to stop arguing in future . The letter further indicated that PERSON had been warned that in the event of false reporting a misdemeanour complaint would be lodged against her .

In submissions of DATE and CARDINAL DATE the applicant brought criminal charges of medical malpractice against PERSON alleging that he had instructed her to undergo a psychiatric examination without examining her , against ORG , a nurse who had accompanied the applicant during her transfer to PERSON ( she had been sitting in the front passenger seat ) , and against ORG and GPE , the police officers , for inflicting ill - treatment and mild bodily injury . She alleged that on DATE she had been distressed . In the circumstances , her husband had gone to PERSON hospital , where PERSON had decided that she be transferred to GPE psychiatric clinic with assistance from the police . Doctor PERSON had also issued a recommendation in this respect ( see paragraph CARDINAL above ) . The applicant claimed , inter alia , that ORG and GPE had forcibly put her in the ambulance , stating that they had grabbed her arms and dragged her to the ambulance , ignoring her cries of pain from the surgery . After she had been put in the ambulance , she had been forcibly made to lie on a bed with her hands handcuffed behind her back . GPE sat on her legs . They had gone , firstly , to FAC hospital where PERSON had given instructions , by telephone , to GPE to administer an injection . The applicant alleged that on the way to PERSON she had been hit , punched and threatened by the police officers . As a result , she had “ several injuries ( haematomas ) all over the body and limbs and MONEY on the back from the handcuffs , of which I have photographs ” . In support of her complaint she attached medical certificates ( see paragraphs CARDINAL , DATE , DATE and DATE above ) .

On DATE the public prosecutor contacted ORG with a request for further information regarding the incident . In reply , on CARDINAL DATE ORG within ORG submitted a “ special report ” regarding the case . It referred to statements ( which it submitted in support ) which PERSON , the applicant and her husband had given to the police DATE .

Dr PERSON confirmed that on DATE the applicant ’s husband had told him that they lived in the ORG home in FAC ; that the applicant ’s mental health was poor ; that she had arrived at their family house in the village of GPE ( see paragraph CARDINAL above ) without his consent ; that she had broken a window to get in ; that she had been aggressive and was capable of killing herself , their children or himself ; that she had been uncooperative ; and that she had refused to sleep or eat .

In the statement , the applicant ’s husband confirmed that the applicant ’s mental health had deteriorated since the stomach surgery , and that he had explained “ her condition ” to the doctors PERSON and PERSON during his visit of DATE . He also informed the police officers GPE and GPE about her state of health while he was in the ambulance with them on the way to their family house . When they got to the house he had asked the police officers to wait outside so that he could explain to the applicant that she was going to be taken to a psychiatric hospital . When the police officers had entered the house their children had started crying and putting their arms around the applicant . The police officers had forcibly separated the children from the applicant ; they had grabbed her by the arms and dragged her ( while she was on her knees ) towards the door . After the situation had calmed down and in order not to harm the applicant , he had taken her by the legs , and he and the police officers had taken her to the front of the ambulance . Then the police officers had put her in the ambulance ; they had handcuffed her hands behind her back and made her lie on a bed . To keep her still , GPE had sat on her legs . The police officers had remained with the applicant in the rear of the ambulance , while PERSON had sat in the front passenger seat . While he had been occupied with the children in the house , the ambulance had left the scene . DATE he had found out that the applicant had been taken to PERSON hospital ; he went there , but no visits were allowed DATE .

In depositions made on DATE the applicant confirmed that on DATE she had consented to be taken to GPE psychiatric clinic ; that the police officers had grabbed her hands and dragged her ; that before she got into the ambulance ORG had hit her on the back with a baton ; and that her husband had helped ORG and GPE to bring her to the front of the ambulance . She also stated that no infusion or injection had been administered when they had stopped at FAC hospital ; that during the transfer to GPE hospital ( the ambulance had been driven at excessive speed ) her hands had been handcuffed behind her back ; that GPE had been sitting on her legs and that she ( GPE ) had hit her on the legs and head with a truncheon ; that ORG had grabbed her hair and had tightened up the handcuffs ; that both ORG and GPE had punched her and hurt her legs . When she was admitted to PERSON hospital she was bleeding and had bruises .

The “ special report ” of the ORG further referred to statements given by doctors GPE and PERSON ( see paragraphs CARDINAL and CARDINAL above ) . It also specified that the police officers concerned had denied that they had used any force against the applicant , and that the applicant had used offensive language against them and had been screaming loudly . The record also stated that PERSON ( the nurse ) and PERSON ( the driver of the ambulance ) , had also denied that the police officers had used any force against the applicant . The report went on to state :

“ when ( the police officers ) arrived at ( the applicant ’s ) house , they were warned by the ( applicant ’s ) husband to be cautious because LOC had a knife with which she might assault them . For that reason , he proposed going into the house first to tell ( the applicant ) that she was going to be taken to GPE for medical treatment . After TIME , ( the applicant ’s husband ) went out and called ( the police officers ) into the house . The police officers went in and told LOC that they would have to transfer her by ambulance to a health institution in GPE . In response to that , LOC said to ( her husband ) : do I deserve this from you , being taken for medical treatment ; I do not belong there , you should go there because you are drunk DATE and you constantly abuse and hit me and the children ; I ’m covered in bruises because of you ...

Throughout the journey , ( the applicant ) used offensive language against the police officers and the nurse , she [ the applicant ] was very aggressive and angry , and she was screaming loudly and trying to hurt herself by hitting her head against the window of the ambulance . The police officers and the nurse had been forced during the entire transfer to hold her hands in order to prevent her from hurting herself or some of them ” .

On DATE the PERSON Palanka public prosecutor ’s office , referring to the ORG ’s “ special report ” and the discharge notice from PERSON hospital , rejected the applicant ’s complaint against the accused ( the decision noted that the nurse PERSON had died in the meantime ) , finding that the alleged offences were not subject to ORG prosecution . On DATE the applicant , in the capacity of a subsidiary prosecutor , took over the prosecution and brought private charges before ORG ( “ the trial court ” ) on the same charges as above ( see paragraph CARDINAL above ) .

On DATE the trial court heard Dr PERSON , ORG GPE , the applicant , who was not legally represented , and her husband . According to the transcript of the court hearing , PERSON statement was consistent with the statements he had made to the police ( see paragraph CARDINAL above ) .

The relevant parts of ORG ’s statement , as described in the court record , read as follows :

“ ( the applicant ’s husband ) arrived at the police station and said in front of colleagues and himself ( ORG ) that he had been afraid that something could happen to his children or ( to the applicant ) , because , when she had gone to PERSON she had taken a knife and a telephone wire ; they went by ambulance to GPE ... [ when they went into the house ] ( the applicant ) became upset and grabbed one of the minor children in her arms ; ( the applicant ’s ) husband took the child away , and because she did not want to get into the vehicle he ( ORG ) took her arms and her husband took her legs and they put her in the ambulance . ”

I.A. confirmed ORG ’s statement , and stated that she had held the applicant down with her hands to prevent her from standing up . Both ORG and GPE denied that they had used force or handcuffs against the applicant . They also stated that a tranquilliser had been administered to the applicant before they had left for GPE .

The applicant objected to the GPE statements . She further denied that her husband had helped the police officers to take her to the ambulance ; on the other hand , she reiterated that the police officers had grabbed her and put her into the ambulance ; that she had been handcuffed , and that ORG had hit her with a truncheon ; that GPE had sat on her legs during the transfer ; that GPE had held her mouth closed to stop her talking , and had hit and punched her .

The applicant ’s husband confirmed that he had requested that Dr PERSON give an instruction for the applicant to have treatment . When the applicant had refused to get into the ambulance the police officers had grabbed her by the arms and dragged her towards the ambulance . In order not to hurt her , he had grabbed the applicant by the legs and put her in the vehicle . ORG had handcuffed the applicant . The applicant ’s husband denied saying that the applicant had a knife and a wire .

On DATE the trial court delivered a judgment acquitting PERSON , ORG and GPE for lack of evidence . It also discontinued the proceedings against V.S. The trial court established that :

“ The accused doctor PERSON ... acted conscientiously and in accordance with his duty , and at the request of [ the applicant ’s ] husband who had informed him about [ the applicant ’s ] condition , he provided appropriate treatment ; he drew up a report and instructed that she be transferred with police assistance to GPE psychiatric clinic . [ The applicant ] was not examined by a specialist ( не и бил извршен специјалистички преглед ) because she was brought [ to the hospital ] outside TIME ( and ) [ Dr PERSON ] was far away from the office ; after [ V.S. ] had told him by telephone about [ the applicant ’s ] condition , he instructed that a tranquilliser injection be given and that [ the applicant ] be transported to GPE . The accused ORG and GPE , police officers in PERSON Palanka police station called to provide assistance during [ the applicant ’s ] transfer by ambulance to GPE psychiatric clinic , acted professionally and in accordance with the law and their powers ; they did not use any physical force against the applicant and they did not inflict any injuries on her .

The court established the above on the basis of evidence admitted at the trial , namely : oral evidence from the accused , who did not admit the alleged criminal offences , as well as the material evidence from the case file ... of the PERSON Palanka prosecutor ’s office which ... [ on the basis of the ORG ’s special report ] rejected [ the applicant ’s ] criminal complaint ...

All these items of evidence are clear , undisputable , categorical , and inter - related ; there is no reason for the court to question their reliability ... relying on [ this evidence ] the court delivers judgment , finding that [ the evidence ] does not prove that the accused committed the criminal offences with which they are charged .

The court examined [ the applicant ’s ] statement that ... the police officers had dragged her into the ambulance ; that she had been handcuffed , and that ORG had hit her with a truncheon ... that during the transfer she had been restrained with handcuffs ; that police officer GPE had been sitting on her legs and had closed her mouth to stop her talking ; and ( that GPE ) had hit and punched her ...

The court examined the statement of [ the applicant ’s husband ] that ... the police officers had grabbed [ the applicant ] by the arms and dragged her towards the ambulance , and in order not to hurt her , because she had recently had surgery , he had taken her legs and helped to put her in the ambulance ; that police officer ORG had put her head between her legs and had handcuffed her ...

The court examined evidence submitted with the criminal complaints ( medical reports described in DATE , DATE , DATE , DATE and DATE above ) , and photographs , but they did not contain anything that could lead to a different assessment of the facts from that established [ by the court ] . ( This evidence ) is medical evidence , on the basis of which the court established that there had been an instruction for the applicant to be treated at GPE psychiatric clinic , and a medical certificate had been issued for the visible injuries that she had ; that on DATE she had been admitted to ( PERSON ) hospital ; that ( at that time ) she had been depressed and had a depressive and paranoid attitude towards her husband ; that [ she ] had several haematomas of recent date ... CARDINAL photographs showed bruises and scratches on her legs and body .

It is undisputed that owing to [ the applicant ’s ] condition she needed to be transferred for treatment with assistance from the police ; this was also what her husband had asked for . She was admitted to an appropriate institution for treatment and was then discharged at the request of her husband ; the injuries described in the medical certificate and visible in the photographs – a haematoma and scratches , which were noted in the discharge notice upon [ the applicant ’s ] admission , were of DATE . However , this evidence can not lead to a conclusion that [ the injuries ] were inflicted during the transfer , namely on DATE when [ the applicant ] was transferred by ambulance with assistance from the police . ”

The applicant appealed against the judgment and reiterated her argument that she had been ill - treated , and complained that Dr PERSON and ORG had given false statements ; that the trial court ’s judgment had been delivered after the trial court had held CARDINAL hearing ; and that her husband had not given oral evidence before the trial court .

On DATE ORG upheld the facts established and the reasoning given by the trial court . The court reiterated that on the basis of a request by the applicant ’s husband and in view of the applicant ’s state of health PERSON had correctly ordered urgent medical treatment with police assistance . The fact that the applicant had been hospitalised in PERSON hospital instead of in GPE psychiatric clinic , as instructed by PERSON , was irrelevant , as the medical care she had received was appropriate . The court confirmed that the police officers had acted in accordance with the law and their duties as police officers .

On DATE the public prosecutor informed the applicant that there were no grounds for lodging a request for review of the legality of the judgments .

According to the applicant , she has never suffered from any mental disorder , nor was she receiving any medical treatment in that respect .


Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

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

The applicant was born in DATE and lives in GPE .

The applicant adheres to a firmly held belief in the inoffensiveness of the human body . This has in turn given rise to a belief in social nudity , which he expresses by being naked in public . In DATE he decided to walk naked from ORG End in GPE to PERSON in GPE , earning the nickname “ the naked rambler ” .

The following chronology is a summary of the details provided by the parties pertaining to the applicant ’s arrests , prosecutions , convictions and sentences of imprisonment since DATE . All arrests listed were the result of nudity in public unless otherwise indicated .

The applicant began his trek at ORG End in DATE .

He was arrested in GPE on CARDINAL occasions DATE and DATE on charges of breach of the peace ( see paragraphs DATE below ) and public indecency for being naked in public . No further action was taken in respect of the first CARDINAL offences . He was released on bail in respect of the others but no further action was ultimately taken .

On DATE he was arrested and detained for breach of the peace . He was released on bail on DATE after agreeing to remain clothed . However , he was rearrested on DATE on a charge of breach of the peace committed while on bail for being naked in public . On DATE he was convicted at ORG in respect of DATE offence and admonished . He was then released . He lodged an appeal which was later dismissed for unknown reasons .

Meanwhile , on DATE following his release , he was arrested and charged with breach of the peace committed while on bail . He was remanded in custody . On DATE he was convicted at ORG and sentence was deferred . On DATE a sentence of CARDINAL months’ imprisonment was imposed , backdated to the date of his arrest . He was released on DATE .

On DATE he was arrested and charged with breach of the peace committed while on bail . He was remanded in custody . Following a trial on DATE he was convicted and sentenced to CARDINAL months’ imprisonment , backdated to DATE . He lodged an appeal which was later dismissed for unknown reasons . He was released on DATE and resumed his trek .

All periods of detention were spent in GPE GPE in segregation as the applicant refused to dress .

On DATE the applicant completed his trek at PERSON and returned to his home in GPE , GPE .

NORP In DATE the applicant commenced a second trek at ORG End , intending to walk to PERSON .

On DATE he was arrested in GPE and charged with breach of the peace . He was detained on remand and convicted on DATE . He was sentenced to CARDINAL ORG imprisonment . He was released on DATE .

Upon leaving the prison , the applicant was arrested and charged with breach of the peace . He was released on bail .

On DATE the applicant was arrested and charged with breach of the peace . He was released on bail .

On DATE he was arrested and charged with breach of the peace and an offence under section CARDINAL(CARDINAL)(b ) of the Criminal Procedure ( GPE ) Act DATE ( breach of bail conditions – see paragraph CARDINAL below ) . He was detained on remand . On DATE he was convicted in ORG of a breach of bail conditions and sentenced to imprisonment for DATE , the sentence being backdated to CARDINAL DATE . He was found not guilty of breach of the peace .

He was released on DATE and immediately rearrested . He was charged with breach of the peace and a breach of bail conditions for being naked in public . On DATE he appeared at ORG naked to be tried on the charges relating to the arrest on DATE . The ORG found the applicant to be in contempt of court and sentenced him to CARDINAL months’ imprisonment .

On DATE it was decided that no further action would be taken in respect of the applicant ’s arrest on DATE .

On DATE the applicant appeared again for trial at ORG but refused to wear clothes . The Sheriff again found the applicant to be in contempt and deferred the matter of sentence .

On DATE the applicant was due to stand trial at ORG on the charges relating to the arrest on DATE . He refused to dress . The Sheriff found him to be in contempt of court . She adjourned the trial proceedings and deferred consideration of the matter of sentence for the contempt charge until DATE .

On DATE the applicant ’s plea of not guilty to the CARDINAL outstanding breach of the peace charges was accepted . He was convicted of breaching of bail conditions and admonished . Sentence was further deferred in respect of the contempt findings and the applicant was released on bail on DATE .

On DATE the applicant was arrested for breach of the peace . No further action was taken .

On DATE the applicant was again arrested for breach of the peace . He was released on bail .

On DATE he completed his trek at John O’Groats .

On DATE he entered ORG naked to face proceedings related to the outstanding findings of contempt of court . He was arrested and charged with breach of the peace .

On DATE he appeared on those charges before the Sheriff . He was found to be in contempt of court for appearing naked in court and sentenced to CARDINAL months’ imprisonment . He lodged an appeal against the sentence .

On DATE the applicant was convicted of breach of the peace committed while on bail in respect of his nudity on DATE . He was sentenced to CARDINAL months’ imprisonment , backdated to DATE . It appears that he was released on DATE and returned home to GPE .

All periods of detention except for DATE from DATE were spent in segregation in ORG and GPE because the applicant refused to wear clothes .

On DATE , during a flight from GPE to GPE to attend the appeal hearing in respect of the sentence for contempt of court , the applicant removed his clothes . Upon arrival at GPE airport , he was arrested for breach of the peace and public indecency committed while on bail . He was detained on remand . On DATE he was convicted of the charges and sentenced to CARDINAL months’ and CARDINAL months’ imprisonment respectively , to run concurrently backdated to DATE He lodged an appeal which was later dismissed for unknown reasons . He was released on DATE .

On DATE , he was arrested on a charge of breach of the peace committed while on bail and detained on remand . He was convicted on DATE and a DATE prison sentence was imposed . He lodged an appeal which was later dismissed for unknown reasons . He was released on DATE .

On DATE , he was arrested in the prison car park on a charge of breach of the peace committed while on bail . He was detained on remand . He appeared naked in court on DATE and was found to be in contempt of court . A DATE sentence was imposed . On DATE he was found guilty of breach of the peace in respect of the CARDINAL DATE charge . He was sentenced to CARDINAL months’ imprisonment , backdated to DATE . He was released on CARDINAL DATE .

Upon his release , he was rearrested on a charge of breach of the peace in the prison car park . He was detained on remand . On DATE he was found not guilty of a charge of breach of the peace as the Sheriff was not persuaded that he had caused any alarm or disturbance . He was subsequently released .

On DATE he was arrested on a charge of breach of the peace and detained on remand . He was convicted on CARDINAL DATE and sentenced to CARDINAL months’ imprisonment , backdated to DATE . He lodged an appeal which was later dismissed for unknown reasons . He was released on CARDINAL DATE .

On DATE , he was arrested on a charge of breach of the peace committed while on bail and detained on remand . He was convicted on DATE and sentenced to CARDINAL days’ imprisonment , plus DATE outstanding from his previous sentence . He lodged an appeal ; the outcome of the appeal is not known . He was released on DATE .

On DATE , he was arrested on a charge of breach of the peace and detained on remand . He was convicted on DATE and sentenced to CARDINAL days’ imprisonment , plus DATE outstanding from his previous sentence . He lodged an appeal which was later dismissed for unknown reasons . He was released on DATE .

On DATE he was arrested and charged with breach of the peace . It appears that he was not held in custody . DATE , on DATE , he was arrested on a charge of breach of the peace and detained on remand . A decision was made to take no further action in respect of the CARDINAL DATE arrest .

On DATE , while the applicant was on remand , his appeal against sentence for contempt of court was rejected by ORG of ORG of Justiciary ( “ the Appeal Court ” ) .

On DATE he was convicted in respect of the CARDINAL DATE arrest . Sentence was deferred and the applicant remained in detention .

On DATE the applicant was sentenced to CARDINAL months’ imprisonment for contempt of court in respect of a contempt finding dating back to DATE .

On DATE the applicant was sentenced to CARDINAL days’ imprisonment in respect of each of the CARDINAL outstanding contempt of court rulings , to run concurrently .

On DATE the applicant appeared at ORG in respect of the deferred sentence for the DATE conviction . Sentence was further deferred and the applicant was released . As he emerged from court naked , he was rearrested on a breach of the peace charge and detained on remand . On DATE he was convicted and sentenced to CARDINAL months’ imprisonment . He lodged an appeal which was later dismissed for unknown reasons . He was released on DATE .

On DATE , he was arrested on a charge of breach of the peace committed while on bail and detained on remand . He was convicted on DATE and sentenced to CARDINAL months’ imprisonment .

On DATE he was admonished in respect of the breach of the peace conviction of CARDINAL DATE .

On DATE the applicant was released . He was arrested in the prison car park on a charge of breach of the peace and detained on remand . On DATE the Sheriff ruled that there was no case to answer .

The applicant was released but was immediately rearrested on a charge of breach of the peace and detained on remand . On DATE he was convicted at ORG . He was sentenced to CARDINAL months’ imprisonment .

The applicant ’s detention throughout this period was spent in GPE GPE , ORG , ORG and GPE in segregation because he refused to put on clothes .

At TIME on DATE the applicant was released from GPE . He walked out of the prison naked and was arrested , after refusing to get dressed when asked to do so by CARDINAL police officers waiting QUANTITY from the prison gates , on FAC . He was charged in the following terms :

“ ... [ Y]ou ... did conduct yourself in a disorderly manner , did walk in a public place naked , refuse to wear any clothing when asked to do so , indicate that you had no intention of wearing any clothing when in public and did commit a breach of the peace . ”

He pleaded not guilty and was detained in prison on remand in segregation as he refused to dress .

On DATE the applicant ’s trial took place at ORG . He chose to remain naked and represented himself . He was asked by the ORG if he wished the services of a lawyer but replied that he did not . He maintained his plea of not guilty . The Sheriff indicated that he risked being found in contempt of court if he failed to put on clothes . The applicant refused to dress . The LAW allowed him to be present in court after a screen covering the lower CARDINAL of his body was hastily constructed .

The QUANTITY police officers who had arrested the applicant gave evidence . Police Officer A described FAC as a “ major route into GPE ” from the motorway . It was a “ busy road ” and at the material time there was a continuous flow of traffic along the road . He was firmly of the view that the applicant ’s nudity in a public place would cause alarm to anyone . During cross - examination by the applicant , Police Officer A agreed that the human body was in itself decent and was not harmful or alarming . He accepted that nothing in the applicant ’s behaviour at the time of his arrest , other than his nakedness , gave the police any cause for concern . Police Officer B gave evidence that she considered the fact that the applicant had no clothes on in a public place to be very strange and unusual and that she was “ quite shocked ” by it . She explained that at the time , FAC had been very busy with vehicular and pedestrian traffic . She had previously seen elderly people and children in the area , and there were schools and housing nearby . In cross - examination she also agreed that the human body in itself was not harmful , indecent or bad but maintained that although she had been forewarned that she would be likely to see a naked man in public she had still been shocked . She confirmed that no complaints had been received from members of the public .

The applicant gave evidence in his defence . When asked by the prosecution why he was wearing no clothes , he replied that he was making a stand and that “ we ’re innocent until we do something wrong ” . He did not believe that he was causing harm by not wearing clothes . He said that he did not wear clothes in order to provoke a reaction : although he had not always been like that , as he had grown older he had thought more about his beliefs . When asked what he hoped to achieve by making his stand , the applicant replied that he did it because he felt that it was right and that the world changed in its own way .

The ORG found the applicant guilty of breach of the peace and contempt of court . He considered that being naked in a public place and refusing to wear clothes in a public place was conduct that would be alarming and disturbing , in its context , to any reasonable person . In his stated case prepared in the context of the applicant ’s later appeal , the ORG explained :

“ CARDINAL . ... There was no dispute on the facts of the case ... I accepted that the police officers were concerned that if the appellant did not put clothes on there was a very real likelihood of him causing fear and alarm to other members of the public ... ”

He continued :

“ CARDINAL . The position of the appellant is somewhat difficult to understand . He made it clear to the QUANTITY police officers that he had no intention whatsoever of putting clothes on . He insisted on being naked in a public place . He believed that he was doing no wrong by being naked in a public place . He did not accept that he had committed an offence . ”

He noted that in questioning the police officers , the applicant had chosen not to differentiate between private and public places when it came to nakedness . He concluded :

“ CARDINAL . I was entirely satisfied that the conduct of the appellant with the aggravation of his refusal to wear clothing in a public place amounted to a breach of the peace . The criteria for a breach of the peace as discussed in the case of ORG had been met ... The evidence of the appellant did not raise a doubt in my mind . Accordingly I convicted the appellant as libelled . ”

At sentencing , the Sheriff had before him the applicant ’s previous convictions . According to the stated case , the applicant confirmed to the ORG that all previous convictions were for breach of the peace . The Sheriff ’s stated case continued :

“ CARDINAL . ... He acknowledged that he had spent DATE or thereby in prison for the same offence . A pattern has emerged namely that on his release from prison when he ‘ stepped out’ of the prison gate , always naked , he was immediately arrested .

I asked the appellant what he was hoping to achieve by insisting on being naked in public . He talked about ‘ his beliefs’ . I simply could not understand what he had to say in this regard . He did not appear to be waging any campaign or making a protest . He informed me that he would rather not be in prison . If he was not in prison , he would go back to live with his mother in a village in GPE . He had previously worked as a driver of large goods vehicles ... ”

The Sheriff discussed sentencing options with the applicant . In his stated case he explained :

“ CARDINAL . ... I enquired of him if I was minded to defer sentence for whatever reason and admit him to a bail order would he then wear clothes . After some thought the appellant stated that he would not be prepared to wear clothes ... ”

The Sheriff ’s stated case concluded :

“ CARDINAL . Taking all these matters into account I could see no alternative to a custodial sentence . In view of the content of LAW I deemed it appropriate to impose the maximum of CARDINAL months’ imprisonment which I backdated to the date that he had been taken into custody . ”

A further CARDINAL months’ imprisonment , to run concurrently , was imposed for contempt of court .

The applicant sought to appeal his conviction and sentence by way of note of appeal and a draft stated case was prepared by the Sheriff in DATE .

The applicant was provided with a copy of the stated case and was asked for details of any proposed changes . By letter of CARDINAL DATE the applicant proposed a number of changes .

On DATE a hearing was held to consider the proposed adjustments to the case stated . The applicant was brought from GPE to attend the hearing and blankets were provided to facilitate his attendance . He was told that if he refused to wear clothes or make use of the blankets he would not be admitted into the court . He refused to wear clothes or to make use of the blankets and was accordingly not permitted to attend the adjustment hearing . The hearing proceeded in his absence and his requested adjustments were considered by the FAC . CARDINAL adjustments were allowed and the remaining adjustments rejected .

Concerned that the stated case was biased , the applicant did not lodge it with ORG . On DATE , the expiry of the applicable time - limit for lodging , his appeal was deemed abandoned .

The applicant spent his sentence in segregation at FAC as he refused to wear clothes . On DATE he was released from prison .

DATE . Minutes after his release on DATE , the applicant was arrested and charged with breach of the peace for being naked in public . He was detained on remand .

On DATE he was convicted of breach of the peace . Sentence was deferred to CARDINAL DATE for up - to - date psychiatric and psychological assessments .

On DATE the applicant was sentenced to a term of CARDINAL months’ imprisonment plus DATE unserved from previous sentences . He lodged an appeal ; the outcome of the appeal is not known . He was kept in segregation at FAC while in prison because he refused to dress .

He was released on DATE .

Minutes after his release on DATE , the applicant was arrested and charged with breach of the peace for being naked in public . He was detained on remand .

On DATE he was found guilty of breach of the peace and contempt of court . On DATE he was sentenced to CARDINAL days’ imprisonment in respect of the breach of the peace charge together with DATE unserved from previous sentences plus DATE for contempt of court , to be served consecutively . He was not kept in segregation while in prison at GPE .

He was released on DATE .

Minutes after his release on DATE at TIME , the applicant was approached by CARDINAL police officers on FAC , a public road leading from GPE to FAC . The officers suggested that he put on some clothes but he refused to do so . He was arrested him for breach of the peace and detained on remand . He appeared in court on DATE and pleaded not guilty .

DATE . The trial commenced on DATE . The applicant appeared in court naked and was warned by the Sheriff that if he refused to dress or to cover himself he might be held in contempt of court . He refused to put on clothes .

The prosecution led evidence of CARDINAL police officer witnesses at trial . Their evidence was similar to that given at the DATE trial and the applicant ’s cross - examination was also in similar terms and elicited similar responses ( see paragraph CARDINAL above ) .

The applicant did not give evidence in his defence . He argued that his arrest and trial violated the Convention . He relied , inter alia , on LAW , arguing that there was no reasonable suspicion which would satisfy an objective observer that he had committed an offence ; Article CARDINAL , arguing that his arrest was arbitrary as it was based on the subjective belief that his nakedness was offensive ; Article CARDINAL , arguing that he had a strong view that there was nothing indecent about his body and that view was not being respected ; Article CARDINAL , arguing that he ought to have been given the right to express his views that nakedness was not indecent in the way that he had chosen to do ; and Article CARDINAL , arguing that he was being discriminated against because he had different views from the majority of people .

The ORG found that the applicant ’s conduct on DATE was severe enough to cause alarm to ordinary people ; threatened serious disturbance to the community ; and presented as genuinely alarming , in its context , to any reasonable person . He therefore convicted the applicant . In his stated case prepared in the context of the later appeal proceedings , the Sheriff referred to the applicant ’s Convention arguments and continued :

“ CARDINAL . I should say that none of these arguments were developed to any extent and it was not always easy to see what [ the applicant ’s ] full argument was . I came to the conclusion that none of the articles suggested by the appellant had been contravened in the procedure ... ”

As to the conviction handed down , he explained :

“ CARDINAL . In my view there was no doubt about the facts in this case ... The question was whether the conduct amounted to a breach of the peace . I was of the view that the first part of the test was easily met by the conduct . The appellant was walking along a public street in full view of anyone passing and he was completely naked with his private parts entirely on show . Such conduct would be severe enough to cause alarm to ordinary people especially when it was being carried out in an ordinary public street . It might be different if he had been naked somewhere in private , even in a public place which was remote or where fewer people would be congregated , but in or near one of the main streets of a busy town his appearance in that state would be alarming .

The question which was more troubling was whether the second part of the test was met . Would the conduct cause serious disturbance to the community ? I came to the conclusion that the context in which the conduct was taking place – being naked in a brazen fashion in the public street with no attempt to cover himself and no obvious explanation or reason for the conduct – would cause serious disturbance to the community because of the reaction of ordinary people to his presence in that state in that place . That would be particularly so if the community could see that children or vulnerable old people might be present . I considered that the test was met and that the charge was proved beyond reasonable doubt . I therefore found the appellant guilty . ”

The applicant was sentenced to a term of imprisonment of DATE for the breach of the peace and DATE for the contempt charge , together with DATE unspent from his previous sentence , a total of DATE . The sentences were not backdated and they were to run consecutively . The total length of the sentence was therefore DATE , DATE .

The applicant sought to appeal his conviction by way of note of appeal and a draft stated case was prepared by the Sheriff .

Adjustments to the stated case were proposed by both parties and a hearing was held . The applicant was not permitted to attend the hearing since he refused to wear clothes .

On DATE the applicant lodged an appeal by way of case stated , relying on Articles CARDINAL , CARDINAL , DATE , DATE , DATE , DATE and CARDINAL of the Convention .

On DATE the applicant ’s application for leave to appeal was considered by the first sift judge . Leave was refused for the following reasons :

“ The appeal is not arguable . The ORG has carefully explained the reasons for arriving at his decision . There was no infringement of the appellant ’s rights in terms of ORG . ”

On DATE the applicant was refused leave on the second sift . The judges found that for the reasons given by the first sift judge the appeal was not arguable .

The applicant was not kept in segregation while serving his sentence at ORG . He was released on DATE .

On DATE the applicant was arrested and charged with breach of the peace . He was not held in custody . On DATE a decision was made to take no further action .

Meanwhile , on DATE he was arrested on the outskirts of ORG and charged with breach of the peace . He was detained on remand and appeared at ORG in DATE . He was convicted of breach of the peace and detained at GPE and GPE GPE . He was kept in segregation during his detention .

He was released on DATE and headed south towards his home in GPE .

In DATE the applicant discovered a lump on his right testicle . He was examined in his cell but was required to wear clothes for external appointments . He refused to dress and subsequently made prison complaints about alleged inadequate medical treatment . When they were unsuccessful , he referred the complaints to ORG but on DATE he was informed that they were not upheld . The applicant then contacted ORG ( “ the Ombudsman ” ) . However , he was advised that his complaint was not one which the ORG could pursue . On DATE he was told that the lump had gone .

On DATE the applicant made a prison complaint that he was not allowed visits . He was told in reply that he was permitted visits provided that he was appropriately dressed . He referred the complaint to ORG ( “ ICC ” ) on DATE . He was advised on DATE that the ORG had fully endorsed the suggestion that visits be accommodated in the segregation unit . He was told to discuss this with the relevant staff and book a visit . No visits took place .

On DATE the applicant contacted the ORG with a complaint that ORG ( “ ORG ” ) was unreasonably refusing to enable him to receive visits . By letter dated DATE he was informed that the ORG had not upheld the complaint because according to information from the ORG , he had been asked to cover his genitalia when walking from FAC , where he was detained , to the segregation unit . He had refused to do so .

On DATE the applicant made a prison complaint about refusal of dental and general medical treatment over DATE while he was in detention . By reply dated DATE he was advised that the full range of clinical services were available to prisoners and that he was required to comply with the dress code to attend appointments . He referred the complaint to ORG , who did not uphold his complaint .

As noted above , the applicant spent much of his detention in segregation . Even when not in segregation , his ability to participate in activities and to associate with other prisoners was generally limited as long as he remained naked . He was not permitted to access the gym , for health and safety reasons . However , efforts were made to give him access to books and to explore further work or hobbies that could be conducted in his cell . Throughout his time in segregation , the applicant was reviewed regularly by health care professionals .

On DATE the applicant complained to the prison authorities that he was not allowed to associate with other prisoners or to exercise . By reply dated DATE he was told that he was not being denied association or exercise but had excluded himself from these activities by refusing to wear clothes . The applicant referred the complaint to the GPE on DATE but the ORG decided that the current arrangements were satisfactory . It noted that if the applicant were to wear clothes , he would be permitted to associate with other prisoners . However , his choice to remain naked gave rise to serious concerns that he might be the victim of violence or unwarranted comments , and the prison had an obligation to ensure his safety .

In DATE the applicant complained to the ORG that the ORG had given an unreasonable explanation for denying him access to association and exercise . By reply dated DATE the Ombudsman informed him that his complaint had not been upheld because prison staff had confirmed that if he wore clothes , he would be able to associate with other prisoners and exercise .

The applicant contacted ORG of GPE seeking details of solicitors in GPE experienced in judicial review . He received a list containing the names of CARDINAL firms , which he duly contacted . None were willing to represent him . However , a further CARDINAL firms were recommended to him . He contacted them and was informed that none were willing to represent him .

He then contacted ORG to request information regarding exemption from court fees , with a view to commencing judicial review proceedings without legal assistance . He was advised that as he was a prisoner and not in receipt of any ORG benefits , he was not eligible for exemption from court fees .


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

The first applicant was born in DATE and is serving a sentence of imprisonment in the GPE region . The second applicant was born in DATE and lives in GPE .

NORP In DATE the first applicant ’s employer , the prosecutor ’s office of LOC , provided him with a flat and concluded a tenancy agreement with him . The second applicant was included in the agreement as a member of the first applicant ’s family .

In DATE the second applicant was classified as having a firstdegree disability .

On DATE the first applicant retired from the prosecutor ’s office . On DATE he applied to ORG with a request for the transfer of the title to the flat in question to him .

On DATE criminal proceedings were initiated against the first applicant in respect of a suspected criminal offence . On DATE he was arrested and on DATE he was detained pending investigation . On an unspecified date in DATE the first applicant was released and placed under house arrest .

On DATE the first applicant ’s request for the transfer of the title to flat in question to him was refused .

On DATE the first applicant received notice to vacate the flat by DATE .

On DATE the first applicant ’s brother received notice to vacate the flat ( the notice was addressed by the prosecutor ’s office to the second applicant ) .

NORP In DATE the prosecutor ’s office brought eviction claims against the applicants on the grounds that the first applicant no longer worked for the prosecutor ’s office and that therefore , he and his family had to vacate the flat .

The first applicant contested those claims . He submitted that it would be unlawful to evict him and his mother because he , as a retired prosecutor , had a right to acquire ownership of the flat in question . He and his mother had no other housing . In addition , his mother was a retired person and had a first - degree disability .

On DATE ORG ( “ the ORG ” ) dismissed the eviction claims . The prosecutor ’s office appealed against that judgment to ORG ( “ the ORG ” ) .

On DATE ORG quashed the judgment of DATE and delivered a new decision ordering the applicants’ eviction , with no alternative accommodation being provided . The first applicant was represented by a lawyer , PERSON second applicant was not present and was not represented in those proceedings . In particular , ORG found that the first applicant and his mother had been provided with a flat for the period of the first applicant ’s service in the prosecutor ’s office . Under domestic law and the terms of the agreement , the tenants had had to vacate the housing after the termination of the agreement and in the event of their refusal they had had to be evicted with no alternative accommodation being provided . As at the date of the examination of the eviction claims the first applicant had not applied to ORG for title to the flat in question to be transferred to him ; therefore , the ORG conclusion as to the absence of any obstacles to the transfer of ownership of the flat in question to the first applicant was in conflict with the circumstances established in the case . As at the date of the examination of the prosecutor ’s appeal the question regarding the transfer of ownership of the flat in question to the first applicant had not been decided .

The first applicant lodged a cassation appeal against that decision with the presidium of ORG . He complained that the hearing of DATE had been held in his absence and that as a result he had been evicted from the only accommodation he had had .

On DATE a judge of ORG refused to refer the first applicant ’s appeal to ORG of ORG for examination on the merits . The first applicant lodged a cassation appeal with ORG of GPE .

On DATE the second applicant was evicted from the flat .

On DATE a judge of ORG refused to refer the first applicant ’s cassation appeal to ORG of ORG for examination .

In DATE the first applicant ’s brother ( Mr PERSON ) initiated court proceedings for the second applicant to be deprived of legal capacity and for him to be appointed as her guardian .

On CARDINAL DATE ORG declared that the second applicant lacked legal capacity because she was suffering from illness . In particular , the ORG based its decision on an expert report dated DATE which had established that she had been suffering from a mental handicap since DATE and as a result had not been able to understand or control her actions . That judgment entered into force on DATE .

On DATE the local public health department appointed the first applicant ’s brother as her guardian .


CASE OF SPAHIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

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);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

By CARDINAL judgments of ORG ( “ the ORG ” ) of CARDINAL DATE , DATE , DATE , DATE and DATE , which became final on DATE , CARDINAL DATE , DATE , CARDINAL DATE and DATE , respectively , ORG ( Srednjobosanski kanton , “ the ORG ” ; CARDINAL of the CARDINAL cantons of ORG ) was ordered to pay the applicants various sums in respect of unpaid work - related benefits together with default interest at the statutory rate and legal costs .

The writs of execution issued by ORG on DATE , DATE , DATE , CARDINAL DATE and DATE , respectively , were transferred to the competent bank and were listed among the charges on the debtor ’s account . On several occasions thereafter the bank informed ORG that the enforcement was not possible because the budgetary funds intended for that purpose had already been spent .

On DATE and DATE ORG of the CB Canton ( “ the Ministry ” ) informed the bank that no funds for the enforcement of final judgments had been provided in the cantonal budget for DATE and that , accordingly , the final judgments against the canton could not be enforced .

NORP However , on DATE , upon the applicants’ enquiry , the ORG informed them that in DATE the canton had designated MONEY ( BAM ) for the enforcement of judgments and BAM CARDINAL,CARDINAL in DATE for the same purpose .

The applicants complained of the non - enforcement to ORG the LAW ” ) . On DATE ( decision no . AP CARDINAL ) and DATE ( decision no . ORG CARDINAL ) , ORG found a violation of LAW No . CARDINAL to the LAW in the applicants’ and CARDINAL other cases , on account of the prolonged non - enforcement of the final judgments in their favour . It ordered the government of the CB GPE to take the necessary steps in order to secure the payment of the cantonal debt arising from the final judgments within a reasonable time . Although some of the applicants submitted a claim for non - pecuniary damages , ORG did not award any compensation .

The relevant part of the decision of CARDINAL DATE reads as follows :

“ CARDINAL . ... The court notes that the judgments [ in favour of the appellants ] have not been enforced due to the lack of funds on the debtor ’s bank account .

ORG reiterates that under LAW and LAW all levels of government must secure respect for individual human rights , including the right to enforcement of final judgments under LAW and the right to property under LAW No . CARDINAL to the Convention ... The scope of that obligation is not reduced in the present case , notwithstanding the large number of judgments ... [ T]he ORG notes that in NORP v. ORG , and again in Čolić and Others v. ORG , ORG reiterated that ‘ it is not open to a ORG authority to cite lack of funds as an excuse for not honouring a judgment debt . Admittedly , a delay in the execution of a judgment may be justified in particular circumstances , but the delay may not be such as to impair the essence of the right protected under LAW ...

ORG agrees with the position taken by ORG ... it is nevertheless aware of the effects the global economic crisis had on GPE ... The court notes that the federal and the cantonal governments had taken certain steps with the view to enforcement of final court decisions . LAW DATE provides that the final judgments against the GPE and the cantons shall be enforced within the amount of budgetary funds designated for that purpose ... and that the creditors shall enforce their claims in the order in which they acquired the enforcement titles ...

The court finds that the crux of the problem in the present case is that the CB Canton did not identify the exact number of unenforced judgments and the aggregate debt ... without which it is impossible to know when all the creditors will realise their claims against this canton . Furthemore , there should exist a centralised and transparent database of all the claims listed in chronological order according to the time the judgments became final . It should include the enforcement time - frame and a list of partial payments , if any . This will also help to avoid abuses of the enforcement procedure . These measure and adequate funds in the DATE budget would ensure that all the final judgments are enforced within a reasonable time ... and the ORG would ensure the respect of its obligations from LAW and LAW No . CARDINAL to the Convention .

The court considers that the adoption of section CARDINAL of LAW DATE had a legitimate aim , because the enforcement of a large number of judgments at the same time would jeopardise the normal functioning of the cantons . However , the limitation of the enforcement in the present case is contrary to the principle of proportionality enshrined in LAW No . CARDINAL which requires that a fair balance is struck between the demands of the general interest of the community and the requirements of the protection of the individual ’s fundamental rights ... Section CARDINAL places a disproportionate burden on the appellants ... they are placed in a situation of absolute uncertainty as regards the enforcement of their claims ...

In order to comply with its positive obligation , the government of the CB GPE must , as explained above , calculate the total amount of the aggregate debt arising from the final judgments and prepare a comprehensive and transparent database ... This court will not specify what a reasonable time - limit should be ... but , in any event , it must be in accordance with LAW and LAW No . CARDINAL to the Convention .

... The current situation does not give any guarantees to the appellants that their claims against the ORG will be enforced within a reasonable time ” .

The Constitutional Court ’s decision of CARDINAL DATE follows the same legal reasoning .

On DATE Mr PERSON and PERSON concluded out - of - court settlements with the government of the ORG pursuant to which part of their principal claims were to be paid within DATE following the settlement . They renounced the remaining principal claim and default interest . The legal costs were to be settled by a separate agreement . From the information available in the case it transpires that no such agreement has been concluded .

As regards the rest of the applicants , the final judgments in their favour have not yet been enforced .


CASE OF KARAPETYAN AND OTHERS v. ARMENIA

No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

The applicants , Mr PERSON ( the first applicant ) , PERSON Ayvazyan ( the second applicant ) , Mr PERSON ( the third applicant ) and PERSON ( the fourth applicant ) , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE .

At the material time , the applicants occupied different posts within ORG , namely Head of ORG , ORG and ORG , Counsel of ORG and Head of GPE and GPE Division of ORG respectively .

On DATE a presidential election was held in GPE . The main contenders were the then Prime Minister , PERSON , and the opposition candidate , PERSON . Immediately after the election , PERSON announced that the election had been rigged . From DATE nationwide protests , such as demonstrations and sit - ins , were organised by CARDINAL of PERSON supporters .

On DATE several ambassadors for GPE in foreign countries made the following statement :

“ We , the undersigned , remaining faithful to our calling as NORP diplomats and led by our feeling of responsibility before GPE and the NORP people , with concern for the situation which has arisen in GPE , with profound respect for the right of NORP citizens to free elections , with the conviction that only a president elected as a result of free and fair elections can best tackle the challenges facing our country on the international level and substantially raise the international image of GPE , express our support to our compatriots who have risen to struggle for freedom , protection of the right to a fair election and establishment of true democracy in GPE .

Considering the preservation of stability in the country important and public accord necessary , we appeal to our compatriots and especially the representatives of all the structures in the country responsible for maintaining public order and peace to avoid the temptation of resolving problems by use of force .

We appeal to all television companies in GPE , and especially to ORG , to ensure impartial and comprehensive coverage and to provide live airtime to representatives of all the powers who have a constructive position in overcoming the current inner - political crisis .

We appeal to all our colleagues working both in GPE or abroad to join our statement . ”

This statement was reported by the mass media on DATE . According to the first applicant , he also received the statement via his electronic mail . According to the Government , the ambassadors who issued this statement were dismissed from their posts the following day and their dismissal was widely reported in the media .

On DATE the applicants made the following statement :

“ By joining the statement issued by our colleagues from ORG we express our concern with the situation created in GPE , fraught with internal and external undesirable challenges , and outrage against the fraud of the election process , which shadow the will of our country and society to conduct a civilised , fair and free presidential election .

As citizens of GPE , we demand that urgent steps be undertaken to call into life the recommendations contained in the reports of the international observation mission , as well as other prominent international organisations .

Only by acting in conformity with the letter and spirit of the law can we create democracy and tolerance in GPE and earn the country a good reputation abroad . ”

The names of the applicants , with the indication of their office , appeared under the statement . It appears that this statement was reported by several mass media outlets , including ORG , on DATE .

On DATE the Minister for Foreign Affairs of GPE adopted decrees dismissing the first , second and third applicants from office . The fourth applicant was dismissed from office by a similar decree on DATE . As a ground for the dismissals , the decrees referred to sections DATE , subsection CARDINAL , point ( j ) and CARDINAL , subsection CARDINAL , point ( c ) , of LAW ( ՀՀ օրենքը ORG ծառայության մասին GPE , containing description which stated , inter alia , that a diplomat had no right to use his official capacity and work facilities for the benefit of parties and non - governmental organisations , or in order to carry out other political or religious activity ( see paragraphs CARDINAL - CARDINAL below ) .

On an unspecified date in DATE , the applicants instituted administrative proceedings challenging their dismissal and seeking to be reinstated in their work . In particular , they claimed that the decrees on their dismissal contained no reasons regarding the particular instance where they had made use of their official capacity and work facilities for the benefit of parties or non - governmental organisations or for engaging in political or religious activities , as prohibited by the sections of LAW . They also claimed that dismissal on the ground of convictions and opinions was prohibited by law .

On DATE ORG , as a respondent , lodged a response with ORG ( ՀՀ վարչական դատարան ) , claiming that the applicants , by making their statement of CARDINAL DATE which had then been reported by the mass media and announced during the demonstration , had engaged in political activities . Furthermore , the applicants had made use of their official capacity since they indicated their official titles in the statement .

On DATE ORG dismissed the applicants’ claim , finding that their dismissal from work was lawful since the applicants , by making the impugned statement , in essence had engaged in political activity . In this respect , ORG mentioned that the impugned statement concerned political processes as it contained a political assessment of election and post - election events . Furthermore , that statement , as well as that of the ambassadors , had been read aloud during the demonstration organised by a political force and had received a political assessment . ORG also found that the applicants , by indicating their post titles , had made use of their official capacity . The applicants’ right to freedom of expression , as protected by LAW ) , was not breached since the applicants , in exercising that right , had made use of their official status and work facilities . Therefore , the restriction on that right was in compliance with LAW . Besides , the applicants had not been dismissed on the ground of their political opinion , but because in disseminating that opinion they had made use of their official status , which was prohibited by law .

On an unspecified date , the applicants lodged an appeal on points of law against the judgment of ORG , claiming , inter alia , a violation of their right to freedom of expression , as protected by LAW . Besides , they claimed that they had been discriminated against on grounds of political opinion , in violation of LAW , since those diplomats or state officials who had expressed publicly their support for the pro - governmental candidate had never faced any sanctions : the true reason for their dismissal was their critical opinion of government actions in the sphere of human rights and democratisation . They also claimed that their dismissal had been based on an erroneous interpretation of sections CARDINAL , subsection CARDINAL , point ( j ) and CARDINAL , subsection CARDINAL , point ( c ) , of LAW since they had not made use of their official capacity or work facilities when making the impugned statement . Furthermore , the statement had not been made for the benefit of any political party and it could not be qualified as political activity as such .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) decided to declare the applicants’ appeal on points of law inadmissible for lack of merit .


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Somalia)

André Potocki;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE .

They entered GPE on DATE , when they were respectively CARDINAL , DATE , DATE and DATE , and applied for asylum and residence permits DATE .

The first and second applicants were heard by ORG ( Migrationsverket ) on CARDINAL and DATE and CARDINAL DATE . A language test was carried out by an analyst , who had been born and raised in GPE and came to GPE in DATE . After the initial interview , legal counsel was appointed to represent the applicants .

The first applicant submitted , among other things , that they were members of the ORG clan and that the family had lived together in a village called Hosingo in southern GPE since DATE . The first applicant had a university degree from GPE . On DATE , he explained to ORG that he had not visited GPE since DATE . On DATE he was confronted with the fact that his passport had been stamped on CARDINAL occations , in DATE and DATE in GPE , situated northwest of GPE , whereupon he explained that he had travelled via GPE to GPE and that those trips must have been after DATE . Once he had visited his brother ’s daughter in GPE . He did not recall the other visit . There were also stamps in his passport up to DATE from PERSON , PERSON and GPE , in GPE , but the first applicant maintained that he and his family had remained in GPE throughout that period .

PERSON took over GPE when the NORP army withdrew in DATE . On DATE , the first applicant explained to ORG that he had participated in a demonstration to protest against PERSON taking over their village , and that therefore he was on their list of persons to kill . On DATE he explained that the elders of the village decided that they would try to negotiate with ORG . The negotiation ended in disagreement and the spiritual leader of the village was killed immediately after the meeting by CARDINAL masked men . The first applicant was listed as a person to be killed and shortly thereafter CARDINAL armed and masked men came to his house and asked for him . On CARDINAL DATE he explained that the leader of the village had been killed DATE after the meeting with ORG . The applicants would not be able to move elsewhere in GPE since their clan was not domiciled anywhere else in the country and PERSON was present everywhere .

The second applicant stated initially that her mother and husband remained in DATE . Later she explained that her husband had left the village . She did not know where he was . She still had CARDINAL siblings left in GPE , plus some uncles and cousins . In DATE the family had problems with PERSON , which burned down their house . The second applicant had burn scars on her upper body from that incident . In DATE CARDINAL of the village leaders was killed and her father and husband had to flee . She was afraid of being raped by PERSON upon return .

On DATE ORG rejected the ORG request for asylum . It noted at the outset that it was difficult for NORP citizens to prove their identity since there was no authority that could issue passports or other acceptable identity documents . Accordingly , the applicants’ stories were decisive for determining their origin . The ORG found that the first applicant had provided detailed information about LOC village , situated in southern GPE . However , his pronunciation of some words was typical of that in northern GPE . In addition he had stamps in his passport , dated DATE , from airports in GPE . There were no entry or departure stamps from trips to or from southern GPE . Finally , he had provided contradictory statements about the crucial event in DATE , notably whether the leader was killed immediately or DATE after the negotiation with PERSON , and why he was being sought by them , and he had been vague about the situation in south and central GPE . The language analysis of the second applicant indicated that she originated from GPE . Moreover , she had not been able to give any detailed information about the village or her clan , which could be verified . In conclusion , ORG did not find it credible that the applicants had been living in GPE until their departure from GPE . It found it much more likely that the applicants’ most recent home had been in northern GPE .

The applicants appealed against the decision to ORG ( Migrationsdomstolen ) , before which an oral hearing was held on CARDINAL DATE . ORG refused to hear CARDINAL witnesses on the applicants’ behalf , who allegedly could have certified that they were from GPE . However , their written testimony was allowed .

By a judgment of DATE ORG upheld ORG decision . ORG did not question that the first applicant originated from LOC in southern GPE . Like ORG , however , it found that the language analysis of the first and the second applicants , and their various explanations , did not support their contention that they had had their latest domicile in southern GPE or that they should be considered refugees or otherwise in need of protection .

On DATE ORG ( Migrationsöverdomstolen ) refused leave to appeal . Hence the deportation order became enforceable .

In DATE the applicants claimed that there were impediments to the enforcement of their deportation orders . On DATE ORG decided not to reconsider the case , finding that the applicants had failed to present new circumstances which could justify reconsideration of the case .

At DATE , the applicants again requested a reexamination of their cases , which was refused by ORG on DATE . The applicants appealed against this decision to ORG , which rejected the appeal on DATE .

On DATE the third applicant claimed that there were impediments to the enforcement of his deportation order . On DATE ORG decided not to reconsider the case , finding that no new circumstances justifying reconsideration had been presented .

Likewise , in DATE the first and the fourth applicants claimed that there were impediments to the enforcement of the deportation orders against them , claims which were rejected by ORG on DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

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

The applicants , who are brothers , were born in DATE , DATE and DATE respectively and live in GPE .

In TIME of DATE , TIME , the applicants , together with their parents , decided to go to a police station to report that the applicant PERSON had been a victim of crime . They stopped a taxi on the street and because the taxi driver , PERSON , refused to take them , they got involved in a verbal dispute with him and CARDINAL of the applicants punched the bonnet of the car . Shortly afterwards , several taxi drivers from the same taxi company arrived at the scene . A team of QUANTITY police officers ( FAC and GPE ) who were patrolling the area also arrived at the scene of the incident . They were followed by CARDINAL additional police units .

In the presence of the police the dispute between the applicants and the taxi drivers escalated , with the applicant PERSON being hit in the face . When he tried to retaliate , the police handcuffed him and took him to their car . At the same time the applicant PERSON was hit on the head by an unknown person and lost consciousness . When he saw his brother lying on the ground , the applicant PERSON refused to get into the police car . At this point the QUANTITY police officers who had hold of him started hitting him and used their electric stun gun to force him into their car . Afterwards , PERSON was lifted off the ground , handcuffed and put into a police car . The applicant PERSON , who was watching the scene from a distance , was pushed to the ground by CARDINAL policemen , handcuffed and taken to another police car nearby .

The applicants were then taken to the police station , where PERSON and ORG were punched and kicked in the stomach and chest by the police officers who had brought them in . After TIME of waiting without being questioned and without making a statement , ORG was taken by ambulance , under police escort , to ORG , where he had treatment for DATE .

The other CARDINAL applicants were questioned separately by different police officers . On DATE , at TIME , when a lawyer hired by their father arrived , they were allowed to leave the police station .

According to the incident report drafted by the chief of the police units involved , on DATE at around TIME the team of CARDINAL police officers who were on patrol had seen a group of CARDINAL persons attacking a taxi driver . When they intervened to stop the fight and to identify the persons involved , the applicants became aggressive towards them too and punched them . The officers asked for support and additional patrol units arrived at the scene . Subsequently , the decision was taken to accompany the attackers , namely the applicants , to the police station to identify them , but because they refused to go the police officers had to use force and handcuff them . The report further mentioned that the applicants had damaged a taxi belonging to Mr. PERSON , who was identified by name , age , personal identity number and address .

The report also stated :

“ Before the arrival of the police units , several colleagues came to protect the taxi driver and assaulted the CARDINAL [ people ] ; because of the injuries he sustained PERSON - PERSON was taken to ORG , where he was admitted to the surgical ward ...

On the occasion of the investigation at the crime scene QUANTITY eyewitnesses were identified and gave statements ... ”

NORP The report concluded that , in accordance with an order given by the prosecutor by telephone , an investigation was immediately launched in connection with assault on police officers by the applicants and their father .

On DATE the chief asked for forensic expert reports from ORG in connection with the injuries suffered by police officers ORG and GPE The reports issued on DATE confirm that officer ORG had a CARDINAL x QUANTITY ecchymosis and excoriation on the left lumbar region , which could have been caused on DATE by being hit with a hard object , and which required CARDINAL to CARDINAL days’ medical treatment . With respect to officer GPE , the report mentioned that he had a CARDINAL x QUANTITY ecchymosis in the left occipital region , which could have been caused by being hit with a hard object on DATE and which required CARDINAL to CARDINAL days’ medical treatment .

According to a forensic medical report issued on DATE , PERSON had a haematoma of CARDINAL x CARDINAL x QUANTITY in the occipital area , numerous ecchymoses on the face , arms and left leg , and CARDINAL electrical burns on the left thigh . It was considered that the injuries , which could have occurred on DATE , were caused by being hit with a hard object , and required CARDINAL to CARDINAL days’ medical treatment .

According to a forensic medical report issued in DATE , PERSON had an excoriation of CARDINAL x QUANTITY on the right of the forehead , a CARDINAL x QUANTITY ecchymosis outside the right eye , several ecchymoses and haematomas on the head , a QUANTITY wound on the upper lip which had been sutured , several ecchymoses of QUANTITY on the back and the lower right thorax , as well as on the right elbow . The report mentioned that he was drunk when he was brought to ORG . It was considered that the injuries , which could have been inflicted on DATE , had been caused by being hit with and against a hard object or surface , and required CARDINAL to CARDINAL days’ medical treatment .

A forensic medical report issued in DATE mentioned that PERSON had a haematoma of CARDINAL x CARDINAL x QUANTITY on the right side of the head and CARDINAL ecchymoses on the right thigh . He also had limited capacity to open his mouth because of an injury to the right side of the jaw . The report concluded that the injuries could have been inflicted on DATE by being hit with and against hard surfaces and objects , and that they required CARDINAL to CARDINAL days’ medical treatment .

On DATE the applicants brought criminal proceedings against the police officers who were involved in the events of DATE , for abusive behaviour , unlawful arrest and misconduct . They claimed that on DATE they had been beaten by police officers both before and after they were taken to the police station , following an incident they had been involved in with a taxi driver .

The investigation of the ORG complaint conducted by GPE , a police officer from ORG of ORG , commenced by taking statements from the applicants on CARDINAL , DATE and DATE . They described the course of the events as mentioned in DATE above . The applicant PERSON stated that , while he was approaching the QUANTITY police officers who were handcuffing his brother PERSON , he was hit on the head and lost consciousness . He further mentioned that after his arrival at the police station he had not been ill - treated . The applicant PERSON stated that “ he was told later that [ PERSON ] had been hit by taxi drivers and policemen ” . The applicants mentioned that they did not know the names of the taxi drivers involved in the incident or of the police officers present at the scene . Lastly , they requested criminal sanctions against the police officers who had assaulted them both in the street and inside the police station .

On DATE , PERSON , the applicants’ mother , who was present during the incident , declared that she had seen around CARDINAL or thirty taxi drivers hitting the applicants PERSON and PERSON . Then she had seen the QUANTITY police officers pushing PERSON to the ground , hitting him and handcuffing him . She then stated that when the CARDINAL police officers saw PERSON lying on the ground they ran towards him , dragged him to their car , slapped him , turned him over with his face to the ground and handcuffed him . By this time all the taxi drivers had left the scene . Once they arrived at the police station she was not allowed to enter or to contact her sons . After TIME she saw the applicant PERSON being taken away by ambulance , with his handcuffs still on and under police escort .

The investigation continued with the identification of the police officers involved in the incident . In this respect , on DATE , the operational order of DATE as well as the incident report drafted by the police chief ( see paragraph CARDINAL above ) were attached to the investigation file .

On DATE PERSON took statements from police officers PERSON and ORG They declared that they had been on patrol together in a police car when they saw several taxis and several individuals hitting another person . They immediately approached the scene of the incident and asked the aggressors to stop . When they refused the CARDINAL officers called for back - up , and then intervened in order to remove from the crowd CARDINAL person who was violent and had blood on his face . When they tried to immobilise this person he went up to a taxi and hit its windscreen with his fist , breaking it . They decided to handcuff him , and at that moment he kicked ORG in the chest and refused to get into the police car , pointing to his brother , who had been beaten and was lying on the ground , and asking them to call an ambulance . Then they put him into the police car with the help of CARDINAL other colleagues and drove him to their police station . They mentioned in their statement that they did not use any physical or psychological pressure on the person in question , and that they were not equipped with electric stun guns . When they arrived at the police station the person was identified as PERSON and “ was taken over by officer PERSON from the criminal investigations unit and other colleagues who continued the investigation ” .

The same day officer ORG gave a statement in which she mentioned that she was part of CARDINAL of the units called as back - up by officers ORG and ORG When she arrived at the scene she found CARDINAL person pointing out a taxi driver who had allegedly just beaten his brother . She got back into her car and drove in the direction indicated but could not find the taxi driver . Then she returned to the scene and , according to her statement , she “ identified CARDINAL eyewitnesses who could describe the incident and they accompanied her to the police station ” . She further declared that , once inside the police station , she did not participate in the questioning and did not physically or verbally assault any of the persons involved in the incident .

On DATE , in a note drafted by officer GPE , police officers GPE , GPE , GPE , GPE , ORG , GPE and ORG were identified as having been present during the incident under investigation “ together with other public order forces ” .

On DATE officer PERSON , who was on duty at the police station on TIME of the incident , gave a statement mentioning that he had helped his colleagues PERSON and GPE to identify the applicants and their parents , and took a statement from ORG applicant ’s mother .

On DATE and DATE statements were taken from officers GPE and D.D.M. They stated that they had not been on duty on TIME of the incident , but were called in and asked to come to the police station . When they arrived they were informed about the incident and asked to help their colleagues . PERSON declared that he had heard statements from CARDINAL eyewitnesses . D.D.M. declared that he had questioned PERSON . Both officers declared that they had not assaulted any of the participants in the incident .

On DATE investigating officer GPE took a statement from officer GPE , who had also been called in from home to the police station in TIME of DATE . He stated that “ at the station there were a number of people , including taxi drivers , witnesses and members of the PERSON family ” . He then proceeded to question PERSON . He continued by stating that he was aware that the applicants were being investigated for charges of assault against police officers . Lastly , he concluded that DATE he was the community police officer in charge of the area in which the applicants lived . He stated in this respect that the applicants were disruptive individuals who had been sanctioned on numerous occasions for disturbing public order , and that in his opinion their complaint was “ biased and based on untruths ” .

The statements allegedly taken from the applicants and eyewitnesses immediately after the incident inside the police station were not included in the investigation file .

On DATE the ORG of ORG decided to relinquish jurisdiction to ORG of ORG . On DATE it was decided that ORG of ORG was competent to examine the case after all , and the file was sent back to them .

On DATE officers GPE , GPE and D.D.M. were heard again , this time before the prosecutor . In addition to his initial statement given in DATE , officer PERSON pointed out that , once inside the police station and while he was handcuffed , the applicant PERSON had banged his own head against the wall and the floor several times .

On DATE ORG of ORG dismissed the criminal complaint lodged by the applicants against some of the police officers who had taken part in the incident of DATE , in particular those officers who had questioned the applicants after they were taken to the police station , on the ground that no unlawful act had been committed by them . It held that following the incident the applicants had been restrained by police officers and taken to the police station for identification and questioning , because a car had been destroyed during the incident and police officers had been assaulted . It was further held that when they reached the police station it was already apparent from physical evidence that the applicants had been involved in a violent incident . There was therefore no evidence in the criminal investigation file to prove beyond reasonable doubt that the police officers who questioned the applicants at the police station , in particular GPE , GPE and D.D.M. , had acted violently against the applicants . Moreover , it was held that one of the applicants , namely PERSON , had inflicted injuries on himself . The prosecutor finally decided that the criminal investigation in respect of the remaining police officers , not identified by name , should be continued by ORG of ORG .

The applicants complained against this decision , arguing , inter alia , that no statements had ever been taken from any of the taxi drivers involved in the incident . They also argued that they had been hit by the taxi drivers in the presence of the police officers , who had done nothing to protect them . On the contrary , the police officers had also brutally attacked them , immobilising them in the street and then beating them up once they were inside the police station . They further alleged that CARDINAL witnesses , namely FAC and the applicants’ legal representative , had seen the injuries suffered by them but were never called to testify .

On DATE the ORG complaint was rejected as ill - founded by ORG of ORG .

The applicants appealed against the ORG decisions before the ORG , reiterating their previous arguments ( see paragraph CARDINAL above ) . Their appeal was rejected with final effect on CARDINAL DATE . In reaching this decision ORG firstly considered that sufficient investigative action had been taken , such as taking statements from the applicants and the police officers present in the police station , and , because the alleged ill - treatment took place in a police station , no other evidence was available that could verify the ORG complaint with respect to police officers GPE , GPE and GPE The court further held that it could not decide with respect to the incident which took place in the street and which involved the taxi drivers , because it was the object of an ongoing investigation conducted by ORG of ORG .

The criminal investigation with respect to the rest of the police officers and concerning the incident which took place in the street is still pending before ORG of ORG .

The criminal investigation against the applicants for assaulting police officers ( see paragraph CARDINAL above ) has also not been completed to date .