CASE OF GRANDE STEVENS AND OTHERS v. ITALY

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);No violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence;Article 6-3-a - Information on nature and cause of accusation);No violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence;Article 6-3-c - Defence in person;Defence through legal assistance);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice);Respondent State to take individual measures (Article 46 - Individual measures;Article 46-2 - Execution of judgment);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque;Peer Lorenzen

A list of the applicant parties is appended .

At the relevant time Mr PERSON was the chairman of the CARDINAL applicant companies and Mr PERSON was the authorised representative ( procuratore ) of the applicant company ORG .

On DATE the public limited company ORG ( ORG Torino ) signed a financing agreement ( prestito convertendo ) with CARDINAL banks . That contract was due to expire on DATE and stipulated that , should ORG fail to reimburse the loan , the banks could offset their claim by subscribing to an increase in the company ’s capital . Thus , the banks would have obtained PERCENT of ORG ’s share capital , while the holdings of the public limited company ORG ( which subsequently , on DATE , became PERSON ORG . , the name by which it will be referred to hereafter ) would have decreased from PERCENT to PERCENT .

Mr Gabetti wished to obtain legal advice on the best way to ensure that PERSON remained the controlling shareholder in ORG , and to this end he contacted a lawyer specialising in company law , PERSON . He considered that one possibility would be to renegotiate an equity swap ( that is , a contract allowing a share ’s performance to be exchanged against an interest rate , without having to advance money ) , dated DATE and based on CARDINAL ORG shares , concluded by PERSON with an NORP merchant bank , ORG , which was due to expire on DATE . In Mr Grande Stevens ’s opinion , this would be CARDINAL way to prevent the launch of a takeover bid with regard to the ORG shares .

Without mentioning ORG for fear of breaching his duty of confidentiality , on DATE Mr PERSON asked ORG ( ORG – “ the CONSOB ” , which in the NORP legal system , has the task , inter alia , of protecting investors and ensuring the transparency and development of the stock markets ) whether , in the scenario he envisaged , a takeover bid could be avoided . At the same time Mr PERSON began making enquires with ORG about the possibility of amending the equity swap contract .

On DATE the CONSOB asked PERSON and PERSON to issue a press release providing information on any initiative taken in the light of the forthcoming expiry of the financing agreement with the banks , any new fact concerning ORG and anything that might explain the market fluctuations in ORG shares .

Mr PERSON alleges that he was on leave on that date . He had informed Mr PERSON of the CONSOB ’s request and had sent him a copy of it . Mr PERSON submits that he was not involved in drafting the press releases described in CARDINAL and DATE below .

Mr Gabetti submits that on DATE he was in hospital in GPE . He had received a draft press release and had contacted Mr Grande Stevens by telephone ; the lawyer had confirmed to him that , given the significant number of elements that remained uncertain , renegotiation of the equity swap contract could not be considered as a relevant and currently available option . In those circumstances , PERSON approved the draft press release .

The press release issued in response [ to the CONSOB ’s query ] , approved by Mr Grande Stevens , merely indicated that PERSON had “ neither instituted nor examined initiatives with regard to the expiry of the financing contract ” and that it wished “ to remain ORG ’s reference shareholder ” . No mention was made of the possible renegotiation of the equity swap contract with ORG , which , in the absence of a clear factual and legal basis , the applicants considered merely as CARDINAL possible future scenario .

The Giovanni Agnelli Company confirmed PERSON ’s press release .

From DATE to CARDINAL DATE Mr PERSON continued his negotiations with ORG , exploring the options for amending the equity swap contract .

On DATE , in the course of an PERSON family meeting , it was decided that the draft text being studied by PERSON ought to be submitted for approval by the PERSON board of management . On DATE , the CONSOB received a copy of the equity swap contract and was informed of the negotiations under way with a view to using that contract to enable PERSON to acquire ORG shares .

On DATE , in execution of the decisions taken by their respective boards of management , PERSON and ORG concluded the agreement on amending the equity swap contract .

On DATE , in response to the question posed to it by Mr Grande Stevens on DATE ( see paragraph CARDINAL above ) , the CONSOB indicated that , in the scenario envisaged , there was no obligation to launch a takeover bid .

On DATE ORG increased its share capital ; the new shares were acquired by the CARDINAL banks in compensation for the sums owed to them . On DATE the agreement amending the equity swap contract took effect . In consequence , PERSON continued to hold a PERCENT stake in ORG .

On DATE the CONSOB ’s ORG ( CARDINAL mercati e consulenza economica DATE ufficio Insider Trading – hereafter the “ IT Office ” ) accused the applicants of breaching LAW no . CARDINAL of DATE . That article , entitled “ Market Manipulation ” , provides :

“ Without prejudice to criminal penalties where the conduct amounts to an offence , any person who , through means of information , including Internet or any other means , disseminates false or misleading information , news or rumours of a kind to provide false or misleading indications concerning financial instruments shall be liable to an administrative penalty ranging from MONEY ( ORG ) . ”

According to ORG , the agreement to amend the equity swap had been concluded or was in the process of being concluded before the press releases of CARDINAL DATE were issued , and accordingly it was abnormal that they had contained no mention of it . The applicants were invited to submit their defence .

ORG then transmitted the file to the CONSOB ’s ORG ( ufficio sanzioni amministrative – hereafter , “ the Directorate ” ) , accompanied by a report ( relazione istruttoria ) dated DATE , which set out the evidence against the accused and their arguments in reply . According to that report , the arguments submitted in their defence by the applicants were not such as to enable the file to be closed .

The ORG communicated this report to the applicants and invited them to submit in writing , within DATE period that would expire on DATE , those arguments that they considered necessary for their defence . In the meantime , ORG continued to examine the applicants’ case , by obtaining oral statements and analysing the documents received on DATE from ORG On DATE it transmitted a “ supplementary note ” to the ORG in which it stated that the new documents examined by it were not such as to alter its conclusions . On DATE the applicants received a copy of the supplementary note of DATE and its appendices ; they were given a further DATE deadline within which to submit any comments .

Without communicating it to the applicants , the ORG presented its report ( dated DATE and containing its conclusions ) to the Commission – the CONSOB proper – , that is , to the body responsible for deciding on possible penalties . At the relevant time the Commission was made up of a chairman and CARDINAL members , appointed by the President of the Republic on a proposal ( su proposta ) from the President of ORG . Their term of office was for DATE and could be renewed only once .

By resolution no . CARDINAL of DATE , the CONSOB imposed the following administrative fines on the applicants :

EUR CARDINAL in respect of Mr Gabetti ,

EUR CARDINAL in respect of Mr Grande Stevens ,

ORG CARDINAL,CARDINAL in respect of Mr Marrone ,

ORG CARDINAL,CARDINAL,CARDINAL in respect of the company PERSON ,

EUR CARDINAL in respect of the company ORG .

Mr Gabetti , PERSON and PERSON were banned from administering , managing or supervising listed companies for periods of CARDINAL , DATE respectively .

The CONSOB held , in particular , that the file showed that on DATE , date of the impugned press releases , the plans to maintain a PERCENT stake in ORG ’s capital on the basis of renegotiation of the equity swap contract with ORG had already been studied and were being put in place . It followed that the press releases falsely represented ( rappresentazione falsa ) the situation at the time . The CONSOB also emphasised the positions held by the persons concerned , the “ objective gravity ” of the offence and the existence of malicious intent .

The applicants applied to ORG seeking to have these penalties set aside . They alleged , inter alia , that the CONSOB ’s rules were illegal , since , contrary to the requirements of LAW septies of Legislative Decree no . DATE ( see paragraph CARDINAL below ) , they did not comply with the principle of an adversarial examination of the case .

Mr Grande PERSON further noted that the CONSOB had accused and punished him for being involved in publication of the press release of DATE as the executive director of PERSON . Before the CONSOB , he had argued unsuccessfully that he did not have that role and that he was merely a lawyer and consultant for ORG . Before the appeal court , PERSON maintained that , since he was not an executive director , he could not have taken part in the decision to publish the impugned press release . In pleadings of DATE , Mr PERSON requested that , should the appeal court consider the documents placed in the case file to be insufficient or unusable , it summon witnesses for questioning “ on the facts set out in the above - mentioned documents ” . He did not indicate clearly in those pleadings either the names of those witnesses or the circumstances in respect of which they were to give evidence . In pleadings of the same date , Mr PERSON named CARDINAL witnesses whose statements would prove that he had not taken part in drafting the press releases , and stated that the appeal court could , if necessary ( ove occorresse ) , question them .

In judgments deposited with the registry on DATE , ORG reduced the administrative fines imposed by the CONSOB in respect of certain of the applicants , as follows :

- ORG CARDINAL,CARDINAL in respect of ORG . ;

- EUR CARDINAL in respect of PERSON s.p.a . ;

- EUR CARDINAL in respect of PERSON .

The heading of the judgments delivered in respect of PERSON , Mr PERSON and PERSON . indicated that the court of appeal had met in private ( riunita in camera di consiglio ) . The “ procedure ” part of the judgments issued in respect of Mr PERSON and ORG . mentioned that the parties had been summoned to the deliberations ( disposta la comparizione delle parti in camera di consiglio ) .

The length of the ban on assuming responsibility for the administration , management or supervision of companies listed on the stock exchange was reduced from DATE in respect of PERSON .

The court of appeal dismissed the ORG other complaints in their entirety . It noted , inter alia , that even after the file had been transmitted to the ORG , ORG had been entitled to continue its investigative activities , as the CARDINAL-day deadline provided for the CONSOB ’s deliberations had not been binding . Furthermore , the adversarial principle was complied with if , as in the present case , those charged had been informed of the new evidence obtained by ORG and had had an opportunity to submit their replies .

The court of appeal also noted that it was true that the CONSOB had both imposed the penalties provided for by LAW no . DATE and reported the case to the prosecuting authorities , alleging that the criminal offence described in LAW same decree had been committed . Under the terms of this provision ,

“ Anyone who disseminates false information , carries out simulated transactions or uses other ploys ( artifizi ) which are objectively capable of triggering a significant change in the value of financial instruments shall be punishable by CARDINAL six years’ imprisonment and a fine of CARDINAL euros . ”

According to the court of appeal , those CARDINAL provisions had as their subject - matter the same conduct ( the “ dissemination of false information ” ) and pursued the same aim ( to prevent market manipulation ) , but differed with regard to the situation of risk alleged to have been generated by this conduct : in respect of Article QUANTITY , it was sufficient in itself to have given false or misleading indications concerning financial instruments , while LAW further required that that information had been such as to trigger a significant change in the price of the instruments in question . As ORG had indicated in its order no . CARDINAL of CARDINAL DATE , it was open to the legislature to punish illegal conduct both by a pecuniary administrative sanction and by criminal penalties . In addition , LAW ( see paragraph CARDINAL below ) , which invited the member States of ORG to apply administrative sanctions against persons responsible for manipulating the market , contained in turn the phrase “ without prejudice to the right of Member GPE to impose criminal sanctions ” .

On the merits , the court of appeal observed that it was clear from the case file that the renegotiation of the equity swap had been examined in minute detail at the relevant date and that the conclusion reached by the CONSOB ( namely , that this plan already existed DATE prior to CARDINAL DATE ) had been reasonable in the light of the established facts and the conduct of the persons concerned .

As to Mr Grande Stevens , it was true that he was not an executive director of ORG . Nonetheless , the administrative offence punishable under LAW no . DATE could be committed by “ anyone ” , and therefore by a person in any capacity whatsoever ; Mr PERSON had indeed participated in the decision - making process which had led to publication of the press release in his capacity as a lawyer consulted by the applicant companies .

The applicants appealed on points of law . In the third and fourth grounds of their points of appeal , they alleged , inter alia , that there had been a breach of the principles of a fair hearing , enshrined in LAW , because , in particular : the investigative phase of the CONSOB proceedings had not been adversarial in nature ; there had been a failure to transmit the ORG ’s report to the accused ; in the applicants’ view , it had been impossible to file pleadings with or be heard in person by the ORG ; ORG had continued its investigation and transmitted a supplementary note after expiry of the time - limit set for that purpose .

By judgments of DATE , the text of which was deposited with the registry on CARDINAL DATE , ORG dismissed their appeals on points of law . It considered , in particular , that the principle of an adversarial examination of the case had been complied with in the proceedings before the CONSOB , noting that the latter had indicated to the applicants the acts with which they were charged and taken account of their respective defence submissions . The fact that the applicants had not been questioned and that they had not received the ORG ’s conclusions had not been in breach of that principle , since the constitutional provisions regarding a fair hearing and the right of defence were applicable only to judicial proceedings , and not to proceedings to impose administrative sanctions .

Under Legislative Decree no . CARDINAL of DATE , the applicants’ impugned conduct could be the subject - matter not only of an administrative sanction , imposed by the CONSOB , but also of the criminal penalties provided for in LAW , cited in paragraph CARDINAL above .

On DATE the applicants were committed for trial before ORG . They were accused of having stated , in the press releases of DATE , that PERSON wished to remain ORG ’s reference shareholder and that it had neither initiated nor examined initiatives with regard to the expiry of the financing contract , although the agreement amending the equity swap had already been examined and concluded , information that had been withheld in order to avoid a probable fall in the ORG share price .

CONSOB applied to be joined to the proceedings as a civil party , a possibility open to it under LAW undecies of Legislative Decree no . DATE .

After DATE , the date on which the judgment dismissing the applicants’ appeal on points of law against the penalties imposed by the CONSOB was deposited with the registry ( see paragraph CARDINAL above ) , the applicants requested that the criminal proceedings against them be discontinued , by virtue of the non bis in idem rule . In particular , at the hearing of DATE , they argued that the relevant provisions of Legislative Decree no . CARDINAL of CARDINAL and LAW ( “ the ORG ” - see paragraph CARDINAL below ) were unconstitutional , on account of their alleged incompatibility with LAW No . CARDINAL .

The representative of the prosecuting authorities opposed this objection , alleging that “ double proceedings ” ( administrative and criminal ) were imposed by LAW DATE ( see paragraph CARDINAL below ) , which the NORP legislature had transposed by enacting ORG CARDINAL and CARDINAL of Legislative Decree no . DATE .

ORG did not immediately rule on the ancillary question of constitutionality raised by the defence . It ordered an expert report describing the fluctuations in ORG shares DATE and DATE and evaluating the effects of the press releases of CARDINAL DATE and the information made public on DATE .

By a judgment of DATE , the text of which was deposited with the registry on DATE , the Turin ORG acquitted PERSON on the ground that he had not been involved in the publication of the press releases , and also acquitted the other applicants on the ground that it had not been proven that their conduct had been such as to trigger a significant change in the financial markets . It noted that the fact that the press releases contained false information had already been punished by the administrative body . In the court ’s view , the applicants’ impugned conduct had , probably , been aimed at concealing the renegotiation of the equity swap contract from the CONSOB , and not at increasing ORG ’s share price .

The court held that the ancillary question of constitutionality raised by the applicants was manifestly ill - founded . It noted that NORP law ( section CARDINAL of Law no . CARDINAL of DATE ) prohibited “ double proceedings ” ( doppio giudizio ) , criminal and administrative , in respect of the “ same act ” . However , ORG CARDINAL and CARDINAL ter of Legislative Decree no . CARDINAL of CARDINAL did not punish the same act : only the criminal provision ( LAW ) required that the conduct be such as to cause a significant change in the value of financial instruments ( it referred to judgment no . DATE of ORG ( Sixth Section ) , of DATE ) . In addition , application of the criminal provision required the existence of malicious intent , while the administrative provision was applicable as soon as culpable conduct was established . Moreover , the criminal proceedings which had followed the imposition of the financial penalty provided for by LAW no . CARDINAL of CARDINAL were authorised by LAW .

As to the case - law of the ORG cited by the applicants ( PERSON v. GPE ( DATE , Series A no . CARDINAL-C ) , PERSON v. GPE [ ORG ] , no . DATE ) , ORG v. GPE ( no . MONEY , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) ) , it was not relevant to this case , since it concerned cases where a single act had been punished by criminal and administrative penalties and where the latter had a punitive element and could include a custodial sentence or ( as in the PERSON case ) were for a sum higher than the criminal fine .

The public prosecutor ’s office appealed on points of law , alleging that the offence with which the applicants had been charged was CARDINAL “ of danger ” ( reato di pericolo ) and not “ of damage ” ( reato di danno ) . It could therefore be committed even in the absence of damage having been sustained by the shareholders .

DATE . On DATE ORG allowed in part the prosecuting authorities’ appeal on points of law and quashed the acquittal of the companies PERSON and PERSON , and those of Mr PERSON and PERSON . However , it upheld the acquittal of PERSON , given that he had not taken part in the impugned conduct .

By a judgment of CARDINAL DATE , ORG convicted PERSON and PERSON of the offence set out in LAW no . DATE , considering it highly probable that , had the false information included in the press release of CARDINAL DATE not been issued , the value of ORG ’s shares would have fallen much more sharply . However , it acquitted the companies PERSON and PERSON , holding that no criminal acts could be imputed to them .

The court of appeal held that there was no appearance of a violation of the ne bis in idem principle , thus endorsing the main thrust of the GPE ORG reasoning .

According to the information provided by the Government on DATE , PERSON and PERSON appealed on points of law against that judgment , and the proceedings were still pending at that date . In their appeals , these CARDINAL applicants relied on a violation of the ne bis in idem principle and asked that an ancillary question of constitutionality be raised in respect of LAW .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in DATE and , until his arrest , lived in GPE .

On DATE the applicant was arrested on suspicion of aggravated kidnapping and extortion committed within an organised criminal group and with the use of firearms . He remained in detention throughout the investigation and trial .

On DATE ORG found the applicant guilty as charged and sentenced him to MONEY imprisonment in a high - security correctional colony .

ORG of GPE upheld the sentence on appeal on DATE .

The parties provided the ORG with extensive medical evidence , including the applicant ’s clinical records , medical certificates , expert reports , and opinions by various medical specialists .

The evidence shows that the applicant had a long history of heart and kidney diseases . In DATE he suffered a stroke , closed craniocerebral injury and cerebral contusion . DATE he suffered a myocardial infarction and was admitted to a hospital for in - patient treatment . A medical examination carried out by the hospital revealed a deterioration in the functioning of his kidney . He was prescribed a basic drug regimen , which was supervised by a cardiologist and a nephrologist . Upon discharge from the hospital , his state of health was considered satisfactory .

After the applicant ’s arrest he was taken to a temporary detention centre in the town of GPE , and DATE , on DATE , to temporary detention facility no . IZ-CARDINAL/CARDINAL in GPE ( “ facility no . IZCARDINAL/CARDINAL ” ) . On admission to the detention facility , the applicant underwent a general medical check - up performed by the prison doctor , who concluded that he was “ somatically healthy ” . DATE he underwent an electrocardiogram , which revealed hypertrophy of the left ventricle of his heart and myocardium insufficiency . The prison doctor recommended in - patient care .

On DATE the applicant was transferred from the detention facility to hospital no . CARDINAL of medical ward no . CARDINAL of ORG ( “ prison hospital no . CARDINAL ” ) . An electrocardiogram and blood and urine tests were performed in the hospital , leading to diagnosis of third - stage hypertension , third - stage arterial hypertension , coronary disease , firstdegree angina pectoris , sclerotic kidney , fourth - stage chronic kidney disease , and chronic renal insufficiency of the second degree . He was prescribed drug therapy comprising enalapril , aspirin , spironolactone and other medication .

On DATE following his admission to the hospital , the applicant made a written refusal to receive injections of hypotensive medication , arguing that they could lead to a sharp drop in his blood pressure .

The applicant ’s clinical records show that he received drug treatment for hypertension in the hospital . His blood pressure and body temperature were regularly monitored .

On DATE the applicant was discharged from the hospital and transferred to facility no . IZ-CARDINAL/CARDINAL . The discharge certificate indicated that his treatment had not produced the expected results , with the applicant ’s arterial blood pressure remaining at a high level . It recommended a consultation with a cardiologist and a nephrologist in order to adjust his treatment .

DATE , on DATE , the applicant was taken to hospital no . CARDINAL of medical ward no . CARDINAL of ORG ( “ prison hospital no . CARDINAL ” ) , where he was examined by several doctors , including a cardiologist and a nephrologist . He underwent several medical examinations , which revealed that his angina pectoris had progressed to the third stage . He was also diagnosed with firstdegree encephalopathy of mixed genesis . His antihypertensive drugs regimen was adjusted accordingly . The doctors recommended regular monitoring of his blood pressure , creatinine and urea levels . The applicant was certified as having a third - degree disability on DATE .

In DATE , the applicant ’s wife , anticipating his discharge from the hospital , complained to the head of ORG of ORG in GPE and GPE Region and to ORG that the applicant ’s medical treatment had been inadequate and about his impending transfer from the hospital to a temporary detention facility . On DATE ORG dismissed the complaint . The complaint to ORG of ORG was also unsuccessful .

On DATE the applicant was sent back to facility no . IZCARDINAL/CARDINAL . He was seen by a therapist . His treatment continued as prescribed in the hospital .

On DATE an independent cardiologist , PERSON , chosen by the applicant ’s wife , issued a report assessing the quality of the applicant ’s treatment in detention . He observed that the applicant ’s health , and in particular his heart condition , had deteriorated while in detention . He noted that after the arrest the applicant had not been given medication or appropriate dietary nutrition . Serious emotional conditions aggravated by the incarceration had also contributed to the deterioration of his health and increased the risk of a stroke , fatal heart attack or kidney failure . PERSON recommended dietary nutrition , basic treatment and regular monitoring of the applicant with a view to adjusting his drug therapy if necessary . These and the subsequent recommendations of PERSON were submitted to the authorities by the applicant ’s lawyer or wife and appear to have been included in his medical file .

On DATE a prison doctor ordered the applicant ’s medical examination . DATE the applicant underwent a biochemical blood test and a urine test . His diagnosis was re - confirmed and the doctor recommended continuing his treatment with hypotensive drugs .

On DATE Dr F. prepared a new report pertaining to the quality of the applicant ’s treatment . He suggested that the applicant ’s hypertension may have become drug - resistant and that a kidney tomography examination with a contrast agent was necessary in order to choose the correct treatment regimen .

DATE the applicant was taken back to prison hospital no . CARDINAL . A number of medical examinations and tests revealed that he was also suffering from renal hypoplasia and chronic latent pyelonephritis .

NORP The applicant subsequently acquired an acute respiratory infection and was prescribed treatment for it . This led to a change in his hypertension therapy , primarily by decreasing the dosage and excluding certain drugs . His angina pectoris attacks became worse , and he was transferred to hospital no . CARDINAL where his condition was brought under control . He was given , among other drugs , high dosages of anticoagulants . He was discharged from the hospital on DATE on condition that he remained on the prescribed drug regimen and that his blood pressure and creatinine and urea levels were regularly monitored .

From DATE to CARDINAL DATE the applicant was held in facility no . IZ-CARDINAL/CARDINAL . The records submitted to ORG do not indicate what drugs or other treatment the applicant received during this period .

In the meantime , in DATE PERSON studied the applicant ’s clinical records and recommended that he undergo a coronary angiography examination , as well as haemodialysis to define the correct treatment and to prevent possible progress of his kidney disease .

On DATE the applicant was taken back to hospital no . CARDINAL with a view to adjusting his treatment .

DATE Dr F. , an independent nephrologist , PERSON , and the head of the prison hospital examined the applicant in the hospital . They recorded a further deterioration of his heart and kidney functions and suggested that his treatment with anticoagulants might be incorrect given the high risk of heart failure or internal hemorrhage . The doctors recommended that he undergo a coronary angiography examination and a renal tomography or GPE ultrasound examination .

Another examination of the applicant by PERSON and an independent cardiologist , PERSON , on DATE led to the following opinion : the applicant had received adequate hypotensive therapy , which had nevertheless resulted in the aggravation of his hypercreatinemia . They observed that the coronary disease had started prevailing over the remaining diseases and suggested that the applicant ’s therapy should be based on regular treatment with anti - aggregants , nitrates and statins . The doctors stressed that there was a high risk of the applicant ’s condition deteriorating and leading to his death as a result of heart failure , a stroke or myocardial infarction , should prison medical personnel fail to perform a coronary angiography examination or surgery .

On CARDINAL DATE the applicant was discharged from the hospital and transferred to temporary detention facility no . GPE in GPE ( “ facility no . NORP ” ) .

On DATE the investigative authorities ordered the applicant ’s expert examination . A medical commission was to answer several questions , including whether the applicant ’s diseases posed a threat to his life and whether his further detention was compatible with his condition . According to expert report no . CARDINAL of CARDINAL DATE , the applicant was suffering from third - degree hypertension , third - stage arterial hypertension , chronic heart insufficiency of the second degree , first - degree chronic venous insufficiency , chronic coronary disease , second - degree angina pectoris , sclerotic kidney , second - stage chronic renal insufficiency , the initial stage of cerebral atherosclerosis , and dyscirculatory encephalopathy of the first degree . The commission stated that those illnesses required constant monitoring and adequate drug therapy . Any breach of his treatment regimen could induce life - threatening complications . The commission nevertheless concluded that the applicant ’s condition did not warrant his release from detention .

At DATE the applicant wrote a note refusing CARDINAL injections and intravenous therapy and stating that he had lost trust in the attending medical personnel . On CARDINAL occasion in DATE he refused to take a certain medicine , having noted that he had already taken similar drugs DATE .

On DATE the applicant was examined by PERSON , who observed that the authorities had failed to give him necessary drugs and that the applicant ’s relatives had had to step in and supply the prescribed medication . He nevertheless noted positive changes in his state of health . Dr PERSON again strongly insisted that the applicant needed to undergo a coronary angiography examination .

The applicant ’s wife complained to ORG NORP President in the North - West Federal Circuit of the applicant ’s poor treatment in detention . The complaint was to no avail . She also complained to GPE Ombudsman . On DATE the ORG recommended that the applicant ’s wife complain before the courts , apply for the applicant ’s early release on medical grounds , or complain to the administration of the detention facility .

On DATE and DATE PERSON and a doctor from facility no . IZCARDINAL/CARDINAL examined the applicant . In their joint report they noted that for a considerable amount of time the applicant had not received even basic vital medication because none had been available in the detention facility . In particular , the applicant did not receive spironolactone , aliskiren , clopidogrel and isosorbide mononitrate . Only the latter drug was substituted with analogous medication . The applicant ’s hypertension and coronary disease had deteriorated . The CARDINAL doctors therefore recommended his admission to hospital .

On DATE the applicant was examined by PERSON , who found that his kidney disease had progressed to stage DATE . The doctor stressed that an angiography examination at that stage of the development of the applicant ’s illness posed a risk of irreparable damage to the applicant ’s kidneys . However , the risk of heart failure was even higher , and therefore an angiogram was vital .

On DATE the applicant was transferred to ORG of GPE for a coronary angiography examination . He underwent a number of tests in the hospital . A coronary angiography examination performed on DATE revealed PERCENT arterial stenosis . The discharge certificate of CARDINAL DATE prescribed the installation of a coronary stent . The surgery was to be performed in due course .

On DATE the applicant was admitted to prison hospital no . CARDINAL , where he underwent various medical tests and examinations .

In a report prepared after the applicant ’s examination on DATE , PERSON and the head of the prison hospital stated that he had not received any statins . The absence of this drug had caused an increase in the applicant ’s cholesterol level and deterioration in the lipid metabolism indices . In addition , the doctors observed that the applicant ’s renal protective therapy had been insufficient and his blood pressure had not been monitored regularly . As a result , his kidney disease had progressed .

On DATE in the course of the criminal proceedings against the applicant , the trial court ordered his expert examination with a view to updating the information about his state of health , particularly in the light of the results of his coronary angiography examination . In a report issued on CARDINAL DATE experts confirmed that there was a high risk of heart complications , including lethal ones . They noted that the applicant ’s state of health called for vascular surgery , drug treatment and the limitation of stress .

On DATE the applicant was discharged from the hospital for a “ breach of regimen ” , namely his refusal to be examined by CARDINAL doctors . He continued his treatment as an outpatient .

On DATE the applicant was readmitted to prison hospital no . CARDINAL .

In DATE PERSON and PERSON again assessed the quality of the medical treatment provided to the applicant . They concluded that he had received adequate treatment , that he was in need of endovascular surgery and that his impending transfer to a correctional colony would be incompatible with his state of health .

The applicant spent DATE in hospital no . CARDINAL .

On DATE the applicant was sent to a correctional colony in GPE to serve his sentence .

Meanwhile , on DATE the applicant ’s wife complained to ORG , ORG for the Execution of Sentences , medical ward no . CARDINAL and other authorities of the continuous failure to properly diagnose and treat her husband . She received no response .

On DATE , after DATE on the road , the applicant reached correctional colony no . IK-CARDINAL/CARDINAL ( “ colony no . CARDINAL ” ) . On admission he was seen by a doctor who confirmed his diagnoses and prescribed clinical blood and urine tests , an electrocardiogram , and examinations by a therapist , a cardiologist and a psychiatrist . DATE , the applicant was prescribed basic drugs for coronary heart disease and hypertension . On DATE he was examined by a psychiatrist , who did not find any acute pathology .

The applicant was admitted to prison hospital no . DATE , where he spent DATE of DATE . He was seen by a doctor and again underwent various medical examinations , including blood and urine tests , electrocardiography and ultrasound tests . His diagnoses were confirmed and dietary nutrition and a specific drug regimen were prescribed .

From DATE the applicant was admitted to medical ward no . CARDINAL of the correctional colony . A doctor monitored his health and adjusted his treatment regimen .

The applicant spent DATE in transit between several detention facilities . At that time he contracted acute pharyngitis , which was successfully treated .

On DATE the applicant ’s health significantly deteriorated and he was admitted to the therapeutic department of medical ward no . CARDINAL . Tests revealed that he had kidney stones and a benign liver tumour . The applicant ’s drug regimen was amended . His condition was considered to have been stabilised .

The discharge report issued to the applicant upon his discharge from the medical ward on CARDINAL DATE indicated that he was to consult a heart surgeon and a nephrologist .

According to the applicant , following his discharge from the ward he was immediately sent to GPE for the recommended examinations . The journey took over DATE .

On DATE a nephrologist and a heart surgeon examined the applicant and diagnosed him with second - degree chronic renal insufficiency , coronary disease , third - degree angina pectoris and atherosclerosis of the arterial vessels . Symptomatic treatment was prescribed for his kidney disease . A coronary angiography examination was also to be performed . In addition , the neurologist noted that the applicant ’s state of health did not require haemodialysis .

On DATE the applicant underwent a coronary angiography examination in GPE Town hospital . It revealed up to PERCENT arterial stenosis with an unstable atherosclerosis plaque . Doctors authorised and immediately performed an urgent coronary angioplasty and a coronary stent was installed . The surgery was successful .


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . Her application was lodged on CARDINAL DATE .

ORG ( “ the Government ” ) were represented by their Agent , Ms Š.Stažnik .

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

On an unspecified date in DATE the applicant moved with her husband and CARDINAL children from PERSON in GPE to GPE , GPE .

On DATE the applicant applied to ORG ( NORP za socijalnu skrb ORG ; “ the welfare centre ” ) for welfare benefits ( pravo na pomoć za uzdržavanje ) . She stated that she was unemployed with no income and had CARDINAL children who were still minors .

On DATE a social worker warned the applicant about the need to provide accurate information about her assets and the obligation to report any changes to the welfare centre .

On DATE the welfare centre granted benefits to the applicant and her family on account of their poor financial situation .

On DATE the welfare centre received information from an anonymous source that the applicant ’s husband had a shop in PERSON .

On DATE the applicant informed the welfare centre about her husband ’s shop . She admitted it existed but argued that she had considered it to be irrelevant because it had been robbed in DATE and its earnings had been very low . The applicant was warned about the possibility of criminal and financial liability for providing false statements .

On DATE the welfare centre decided to stop her benefits . It established that the applicant and her family could provide for themselves through their own work , which in their case was the revenue from their shop . The decision was served on the applicant on DATE and she did not lodge an appeal .

On DATE , DATE , the applicant visited the welfare centre and gave a statement about repayment of the social welfare benefits received between CARDINAL March CARDINAL and DATE . She was warned that civil proceedings for reimbursement would be instituted against her . The applicant replied that she could not repay the due amount because the earnings from the shop were very low and that she and her husband planned to close it soon .

On DATE the ORG Attorney ’s ORG ( Općinsko državno odvjetništvo u Benkovcu ; “ the State Attorney ’s Office ” ) , lodged a civil action against the applicant in ORG ( PERSON ) , relying on the fact that the applicant had failed to disclose that her husband owned a shop in PERSON when she had been granted welfare benefits . The State Attorney ’s ORG sought repayment of the CARDINAL NORP kunas ( HRK ) ( MONEY ( ORG ) ) she had received , together with statutory default interest .

The applicant argued during the proceedings that the shop had in fact not been in operation since the robbery on DATE but that her husband had not been able to close it because of unsettled tax liabilities . She stated that they had not had the means to support themselves and their children .

At a hearing on DATE the applicant ’s lawyer asked for financial information on the husband ’s shop to be obtained from ORG in order to assess whether the applicant had satisfied the statutory requirements for welfare benefits . The applicant ’s lawyer did not provide any reasons why he or the applicant had not been able to obtain the document from the authorities of GPE , nor did he claim that . The first - instance court dismissed the proposal , considering it to be aimed at delaying the proceedings because the data would have had to be requested from GPE and GPE via the diplomatic service . The first - instance court pointed out that the applicant had had more than enough time since the institution of the proceedings to obtain the data in question if she deemed it relevant . At the same hearing the court also heard evidence , at the request of the applicant , from the director of the welfare centre , PERSON

On DATE ORG dismissed the ORG Attorney ’s claim because the applicant had not been given an opportunity to repay the money within a specified time - limit .

On DATE , upon an appeal by ORG , ORG ( PERSON ) quashed the first - instance decision and remitted the case for fresh consideration .

The court held CARDINAL hearings in the new proceedings . At a hearing on DATE the applicant ’s lawyer submitted a certificate from the regional tax office in PERSON dated DATE on the applicant ’s husband ’s unpaid tax liabilities . The State Attorney ’s ORG argued that the document was irrelevant because a certificate on unpaid tax liabilities could not be proof of earnings .

At a hearing held on DATE the first - instance court heard evidence from the applicant ’s husband at the request of the applicant . He stated that his wife had not disclosed information about their shop because she had been afraid it would prevent them from receiving welfare benefits . At the same hearing the first - instance court dismissed an application from the applicant to be heard in person because it held that she had submitted all her observations in her reply to the claim and that her request to give evidence was aimed at delaying the proceedings . The applicant ’s lawyer had no further evidence and the first - instance court concluded the hearing .

On DATE ORG granted the claim and ordered the applicant to reimburse to the ORG HRK CARDINAL,CARDINAL , together with statutory default interest , and to pay HRK CARDINAL in costs and expenses for the proceedings . It held that while the applicant ’s statements about her husband ’s shop might in fact have been true , the fact remained that she had not disclosed that information voluntarily and had therefore fraudulently , and undoubtedly unlawfully , obtained social welfare benefits which the court could not make lawful .

On DATE the applicant lodged an appeal with ORG , reiterating her previous arguments . She stated that her husband had owned the shop at issue , not her , and that she had only been employed in her husband ’s business , which had been ruined by the robbery .

On DATE ORG , relying on LAW , dismissed the applicant ’s appeal on the grounds that she had not disclosed the fact that her husband had owned a shop , and that her arguments concerning the actual state of the business and her poor financial situation were of no relevance .

The applicant then lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , alleging that her right to a fair hearing had been violated because the first - instance court had disregarded her request to obtain the data on her husband ’s shop from ORG , thus failing to correctly establish all the circumstances of her case . She also alleged that she had been discriminated against .

On DATE ORG declared her complaint inadmissible as manifestly ill - founded .

NORP The relevant part of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , GPE consolidated text ) , as in force at the material time , provided as follows :

“ Each party is obliged to provide facts and present evidence on which his or her claim is based or to refute the statements and evidence of his or her opponent .

“ Parties referring to a document as proof of a statement are obliged to submit that document themselves .

If the document is in the possession of a state authority or a legal or physical person vested with public authority , and the party is not able to arrange for the document to be handed over or shown , the court shall itself obtain the document upon a motion by the party . ”

The relevant provision of LAW ( Zakon o socijalnoj skrbi , ORG nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) , as in force at the material time , provided as follows :

“ A beneficiary who was granted allowance on the basis of a decision of ORG shall compensate the damage if :

- on the basis of false or inaccurate data which he or she knew or should have known to be false or inaccurate , or in some other unlawful manner , he or she was granted an allowance to which he or she was not entitled , or he or she was granted this allowance in an amount greater than the amount to which he or she was entitled ,

- he or she was granted an allowance because he or she failed to report a change that affects the loss or the scope of the entitlement , and he or she knew or should have known about this change . ”


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants , Mr PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , Mr PERSON , PERSON ( Birol ) , PERSON ( PERSON ) , PERSON ( NORP ) , Mr PERSON , Mr PERSON and PERSON , are QUANTITY NORP nationals . They were born in DATE , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE and DATE respectively . They were represented before ORG by PERSON , a lawyer practising in GPE .

s , may be summarised as follows .

A plot of land in Avcılar , in LOC , was registered in the land register as plot no . CARDINAL , parcel no . DATE , in the name of PERSON and PERSON , the applicants’ predecessors .

In DATE , the plot of land in question was designated as a primary school area in the local land development plan . The designation of the plot of land remained unchanged in subsequent plans drawn up DATE .

On DATE the applicants applied to the municipality to have the local land development plan altered . On DATE the municipality rejected the ORG request .

On DATE the applicants instituted proceedings before ORG seeking to have the local land development plan annulled . On DATE ORG dismissed the applicants’ case .

On DATE the applicants instituted another set of proceedings before ORG , claiming compensation for the decrease in the market value of the land and the long - term uncertainty about the fate of the land . On DATE the court dismissed the case , holding that the authorities had not seized the land in question . An appeal and a request for rectification lodged by the applicants were subsequently rejected by ORG , and the decision became final on DATE .

According to section CARDINAL of LAW ( Law no . CARDINAL ) , land can not be used for any purpose other than that indicated in the local land development plans .

Section CARDINAL(CARDINAL ) of the same LAW provides that the municipalities should prepare their DATE zoning programmes within DATE of the entry into force of local land development plans . Land which falls within those programmes and which is accordingly assigned to the relevant public administrative authorities should be expropriated during the period in question . A description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL , § § DATE and CARDINAL , DATE ) .

The object of PERSON no . DATE was to provide for the settlement , by means of compensation , of applications lodged with the ORG concerning length of judicial proceedings , and non - enforcement or delayed enforcement of judicial decisions . A Compensation Commission was set up for that purpose . A full description of the relevant domestic law may be found in GPE and Others v. GPE ( ( dec . ) , no . CARDINAL , § § DATE , DATE ) .

The competence ratione materiae of ORG was subsequently extended by a decree which came into force on DATE . The decree extended the competence of ORG to the examination of other complaints , such as alleged restriction of the right of detainees to correspondence in a language other than NORP and the prison authorities’ refusal , on different grounds , to hand over periodicals . A full description of the relevant domestic law may be found in GPE and GPE v. GPE ( ( dec . ) , no . CARDINAL , § § DATE , CARDINAL DATE ) .

ORG issued a decree which came into force on DATE . The decree extended anew the competence ratione materiae of ORG .

ORG is now entitled to examine the following subjects under LAW decree , which reads as follows :

“ a ) ORG concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant ’s title deeds because his or her land was classified as part of the public forest area , or as a result of the application of section CARDINAL/B of Law no . CARDINAL , or because the land was classified as part of the public forest area in cadastral surveys ;

b ) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant ’s title deeds because the impugned land was classified as located within a coastal area ;

c ) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the allocation of the impugned land for public use in local land development plans ;

d ) Applications concerning an alleged breach of an applicant ’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities ;

e ) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration ’s refusal to receive or send letters or similar correspondence drafted in NORP . ”


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

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicants , who are married , were born in DATE and DATE respectively . The second applicant lives in PERSON ; prior to his expulsion in DATE , the first applicant also lived there .

On an unspecified date in DATE or DATE the first applicant arrived in GPE . It is unclear on what legal basis he resided there . He never applied for a residence permit or NORP nationality .

At some point in DATE the first applicant started living with the second applicant . The Government did not dispute that fact .

The Government submitted that in DATE the first applicant was fined MONEY ( RUB ) ( MONEY ( ORG ) ) for a breach of LAW ( living on NORP territory without a valid residence permit or non - compliance with the established procedure for residence registration ) .

NORP In DATE and DATE the applicants’ CARDINAL children , PERSON and PERSON , respectively , were born . The first applicant was not officially registered as their father , however , both children had his name indicated on the birth certificates as their patronym .

On DATE the first applicant arrived in GPE from GPE . Under the bilateral visa - free agreement of DATE between the countries , his stay was authorised until DATE .

On DATE the applicants concluded a religious marriage in the NORP congregational mosque and continued to reside together in PERSON . They furnished the ORG with a copy of the marriage certificate .

It can be seen from the case documents that on DATE the first applicant was shot in the left leg . As a result of the gunshot wound he was hospitalised and underwent several operations . He was released from hospital on DATE .

On DATE the first applicant was detained by the police for a breach of LAW on account of his failure to apply for a renewal of his period of authorised stay , which had expired on DATE . In his statement to the police , which was submitted to ORG in PERSON on DATE , the first applicant stated that he had been living in GPE for DATE , that he resided with the second applicant as a family and that they had CARDINAL children . He further stated that they had not officially registered their marriage and his paternity in respect of the children had not yet been officially established . He explained that he had overstayed the term of the authorised stay as he had been shot in the leg on DATE , which had resulted in several operations and his admission to hospital , ending on DATE ; doctors had recommended that he not stay seated for TIME and that considering that the trip to the border with GPE took TIME , he had decided to stay in GPE until the injury had completely healed .

On DATE ORG in PERSON ordered that the first applicant be fined RUB CARDINAL and that he be subjected to administrative removal ( expulsion ) from GPE to GPE , which also implied a subsequent DATE entry ban . The court stated , inter alia , as follows :

“ [ ... ] as can be seen from the documents that have been submitted , [ the applicant ] Mr PERSON has stayed in GPE without lawful grounds from DATE to CARDINAL DATE [ ... ]

’s character : ... the applicant has never had administrative proceedings opened against him and has fully admitted his guilt in the commission of the administrative offence . The court finds it necessary to choose an administrative fine with subsequent administrative removal from the country as he has been residing in GPE without a legal basis and without having a work permit . When choosing the punishment the court is unable to take into account Mr ORG ’s minor children as he has not legally registered his paternity in respect of them ... ”

The first applicant appealed against the decision , alleging that his removal and DATE re - entry ban would constitute a disproportionate measure in view of his family life with the second applicant and their children . In particular , he stated that his wife , the second applicant , was pregnant with their third child , that they had CARDINAL children , that he was the family ’s breadwinner and that the leg injury had precluded him from regularising his stay in GPE in a timely manner .

On DATE the first applicant was officially registered as the father of the minors GPE and ORG

On DATE ORG examined the appeal and upheld the decision of CARDINAL DATE stating , amongst other things , as follows :

“ [ ... ] in the appeal the applicant ’s representative requested that the court change the decision by excluding administrative removal from the punishment . Mr PERSON lives with PERSON , he has CARDINAL dependent children , and he is the sole breadwinner for the family . Mr PERSON ’s paternity has been officially registered and confirmed by evidence . Presently PERSON is pregnant with Mr PERSON ’s third child in respect of whom he would also establish paternity ... [ he ] believes that administrative removal and its negative consequences would violate his right to respect for his family life ...

[ ... ] as can be seen from the case file , the applicant has been unlawfully residing in GPE for DATE . There are no reasons to believe that the applicant was prevented from leaving the country for a long time . The applicant ’s statement and that of PERSON that he was not able to move around owing to the injury have not been confirmed by relevant evidence ... the case file contains documents showing that the applicant was hospitalised from DATE with a fracture of the left hip ... it was recommended that he minimise the burden on the leg for DATE after the release from hospital . Other documents demonstrating that his mobility was limited have not been submitted to the court ...

The administrative punishment has been chosen in respect of Mr Guliyev in accordance with LAW and is the minimum prescribed by paragraph CARDINAL of part CARDINAL of Article CARDINAL of LAW , according to which administrative removal represents a compulsory element of the punishment along with an administrative fine .

The kind of exceptional circumstances which could serve as a basis for excluding that type of punishment in accordance with international law are not present in this case ...

... There are no convincing arguments which would enable the court to conclude that Mr ORG intends to permanently reside in GPE , obtain the right to temporary residence and ( or ) acquire NORP citizenship .

The marriage with PERSON has not been officially registered ... paternity in respect of the CARDINAL minors [ PERSON and ORG ] was established after ORG decision to administratively remove Mr Guliyev ... in connection with that the certificates of paternity provided to this court can not be taken into account . There are no reasons to believe that Mr PERSON had not had the opportunity prior to that to register his marriage with PERSON and the paternity ... it is impossible to conclude from the case file that Mr PERSON ’s income is the only source of income for Ms PERSON and the minor children ... ”

The applicants officially registered their marriage on DATE .

On DATE the first applicant was expelled from GPE .

On DATE ORG upheld by supervisory review the first applicant ’s removal .

On DATE the applicants’ third child , GPE . , was born . He remained in the intensive care unit owing to a congenital heart condition .

On DATE the applicants lodged a request for the application of Rule CARDINAL of ORG , asking the ORG to take measures to lift the first applicant ’s re - entry ban in order to enable him to visit his child in hospital .

On DATE the ORG refused to grant the interim measure and asked for factual information from the Government .

On DATE the Government informed ORG . had a very serious heart condition , that he was being treated in intensive care and that his state of health prevented him from travelling . The Government further stated that domestic legal provisions did not provide for any exceptions to the DATE re - entry ban .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in DATE and lives in GPE .

The Department for ORG ( Organizētās noziedzības apkarošanas pārvalde ) received information regarding the applicant ’s alleged involvement in the sale of drugs . The department initiated a covert investigative measure , namely a test purchase of drugs . This measure was carried out on CARDINAL and DATE .

After the test purchase on DATE a police patrol unit working with officers from ORG stopped a vehicle being driven by NORP in which the applicant was a passenger , at TIME near GPE city centre . The applicant was apprehended and taken to ORG premises .

The applicant submitted that he had been repeatedly hit on the head , hit several times on the back , knocked down on to the pavement and pushed , which had resulted in bodily injuries . He had not offered any resistance .

In the ORG ’s version of events GPE , a police officer , opened the front passenger door and pulled the applicant out of the vehicle by his clothing . The applicant fell on to the edge of the pavement . He was then placed face down on the pavement and handcuffed .

The Government noted that while on ORG premises the applicant had complained of chest pain , saying he had heart disease .

At around TIME the applicant was transported from the LOC of ORG by the emergency medical service to the hospital . Head of the emergency medical service unit made an entry in form no . CARDINAL , as follows : “ Abdominal contusion ( sasitums ) . Acute gastritis ? Facial contusion with skin abrasions ( nobrāzumi ) . ”

NORP The applicant was admitted to GPE no . ORG at TIME The applicant ’s medical record indicated the following diagnosis on admission : “ Head , thorax and abdominal contusion . ”

The entry made following the applicant ’s examination by a surgeon at TIME indicated the same diagnosis and the applicant ’s complaint : “ The patient was beaten up during the arrest DATE . ”

Further , at TIME a neurosurgeon recorded that the applicant had an eyelid haematoma around his left eye . The doctor also noted that the applicant had said that during his arrest he had fallen and hit his head in the area of the right eyebrow .

At TIME the applicant was referred to be tested for narcotic and psychotropic substances . The applicant was found not to be under the influence of alcohol , narcotic drugs or psychotropic substances .

On DATE , CARDINAL TIME and TIME , PERSON , a chief specialist from ORG questioned the applicant as a suspect . The applicant indicated that he wished to make a statement in the presence of a lawyer .

At TIME the applicant was transferred to a temporary detention facility , where he stayed until DATE , during which time he did not seek any medical assistance .

On DATE between TIME and TIME PERSON questioned the applicant in the presence of a lawyer . The applicant made a statement , the record of the relevant part of which is as follows :

“ ... While being arrested on DATE [ the applicant ] was pulled out of the vehicle , a jacket was pulled over [ his ] head and [ he ] was pushed on to the ground . [ He ] then received CARDINAL to CARDINAL blows to the head and CARDINAL blow to the abdomen . [ The applicant ] does not recall the precise number of blows he received . [ He ] did not lose consciousness . The blows were [ inflicted ] with a hard , blunt object . ”

In the context of the interrogation of the applicant described above , the Government put to the ORG that no complaints or requests had been raised by the applicant or his lawyer . Notwithstanding , a forensic examination of the applicant had been arranged .

Accordingly , on DATE PERSON ordered an expert report to ascertain what injuries had been sustained by the applicant , in view of the applicant ’s statement that while being arrested he had been kicked on the body and head . The order stated that it had been issued as part of a criminal investigation of unauthorised acquisition , possession and sale of psychotropic substances .

On DATE an expert examined the applicant . In the expert ’s report the following information the applicant had provided was recorded :

“ On DATE during the arrest police officers in uniforms placed a jacket over [ his ] head , hit [ him ] on the head [ and ] abdomen with something [ and he ] fell down . It is impossible to tell with accuracy whether the abrasions on [ his ] legs were caused by the fall or a blow . [ He ] had nausea [ but ] did not vomit . [ He ] did not lose consciousness ... ”

The expert ’s report of DATE described the applicant ’s condition as follows :

“ A haematoma QUANTITY on the upper eyelid of the left eye ... an abrasion QUANTITY in the middle area of the right cheek ... no visible injuries on the body found ... CARDINAL abrasions from QUANTITY x QUANTITY to QUANTITY on the front surface of the left knee joint and on the front surface of the left lower leg ... a haematoma QUANTITY on the front surface of the left lower leg . ”

On DATE the expert recorded in her report that the applicant ’s medical records should be requested from GPE no . ORG . On DATE the Department for ORG issued a request to GPE no . ORG for the applicant ’s medical records .

On DATE the expert added in the same report her conclusions based on the applicant ’s examination and the data contained in his medical documentation . In particular :

“ [ The applicant ] has the following injuries – a contusion on the head with subdermal haematoma and skin abrasion , and a contusion on the left leg with subdermal haematoma and skin abrasions .

These injuries could have been caused by hard , blunt objects .

The possibility can not be ruled out that the injuries were caused in the circumstances indicated in the decision and by [ the applicant ] , and on DATE .

The injuries ... are light injuries , which do not cause short - term health impairment for a period of time of DATE .

The diagnosis of ‘ head , thorax and abdominal contusion’ can not be taken into account in the assessment of the gravity of the injuries , because it has not been affirmed by impartial clinical data , in - patient ( stacionārā ) inspection and examination ( visible injuries are not described in the medical history and were not found in the course of the forensic examination ) . ”

NORP The applicant stated in his appeal of DATE to ORG ( PERSON apgabaltiesa ) against his pre - trial detention that physical force had been applied to him during his arrest , following which he had requested medical assistance at GPE no . ORG .

On DATE officer PERSON gave a statement in the criminal investigation regarding the test purchase of drugs carried out on DATE and DATE , and stated that the applicant had been apprehended on DATE . PERSON gave evidence that the applicant had not been apprehended immediately after the purchase , because it was necessary to ascertain whether the applicant had been working with anyone else .

On DATE ORG rejected the applicant ’s appeal against the pre - trial detention and decided to keep the applicant in custody . ORG in the decision referred to the applicant ’s argument contained in his appeal , including the following :

“ ... police employees beat up [ the applicant ] when they arrested him ; as a result he needed hospital treatment ...

In court [ the applicant ] and his lawyer ... maintained the appeal ... ”

On DATE ORG ( PERSON apgabaltiesa ) found the applicant guilty of unauthorised acquisition , possession and transport of narcotic and psychotropic substances on a large scale , with intent to sell . He was sentenced to DATE and CARDINAL months’ imprisonment , as an aggregated term , with confiscation of property and police control for DATE .

On DATE ORG of ORG ( PERSON tiesas GPE tiesu palāta ) upheld the applicant ’s conviction on appeal . Further , on DATE the ORG of ORG ( PERSON tiesas PERSON ) rejected the applicant ’s appeal on points of law .

On DATE the applicant made representation to ORG about ill - treatment during his arrest on DATE . ORG transmitted the request to ORG of ORG ( NORP policijas PERSON drošības birojs ) .

The applicant submitted to ORG a copy of a letter from ORG of ORG , dated DATE . It was sent in response to the applicant ’s submission of CARDINAL DATE , mentioned above . The letter stated that the human resources inspection division had requested information from the emergency medical service about the call made to them on DATE . However , the applicable regulations required records of emergency calls to be kept for a period of one year . It followed from the applicant ’s medical records at GPE no . ORG that on DATE the applicant had been diagnosed with head and thorax contusions and that he had told medical staff that he had fallen and hit his head while being arrested . While in the temporary detention facility CARDINAL and DATE the applicant had not asked for medical assistance .

NORP The letter indicated as follows :

“ ... in accordance with section CARDINAL(CARDINAL ) of the PERSON on the Police a police employee could not be held responsible for pecuniary or physical harm , caused within the official authority , to an offender who did not comply or who resisted during arrest . ”

The answer concluded that ORG employees had not violated the relevant statutes .

In DATE ORG collected reports ( ziņojumi ) from GPE , GPE and PERSON , officers of ORG .

PERSON , in a report of DATE , indicated that on DATE in question he had been working with a team of traffic police officers . Their task had been to intercept the applicant ’s vehicle after the test purchase of drugs . Once they had received information about the vehicle with the applicant as a passenger inside , a traffic police employee had stopped the vehicle and invited the driver to step out . At this time other department officers arrived and arrested the applicant . ORG could not remember the arresting officer or subsequent proceedings with respect to the applicant .

NORP The department officer PERSON stated in his report of DATE that the applicant ’s arrest had been carried out by PERSON He also indicated that the applicant had not been ill - treated . The applicant had complained of heart problems while on department LOC and an ambulance had been called . An examination by a doctor revealed no health problems and the applicant was then questioned .

In his report of DATE department officer PERSON declared that he had arrived at the scene after the applicant had been arrested . PERSON could not remember who the arresting officer was . According to PERSON the applicant had been transported to department LOC . Police officers had not ill - treated the applicant in PERSON ’s presence and he had not seen any injuries .

In addition to these reports , ORG of ORG obtained on DATE evidence from the temporary detention unit . This indicated that the applicant had not requested medical assistance between CARDINAL and DATE . On DATE that office also requested the applicant ’s medical file from GPE no . ORG .

Following the applicant ’s request of CARDINAL DATE to ORG to submit information about ill - treatment , a prosecutor took a statement from him on DATE . The applicant indicated that he wished to provide more details about what had happened on DATE . The statement included the following :

“ TIME of CARDINAL March CARDINAL ... [ the applicant ] was in the vehicle ... as a passenger ... The vehicle was stopped by traffic police ... [ The applicant ’s ] colleague was invited to the police vehicle ... the passenger door on [ the applicant ’s ] side opened and [ he ] received a hard blow to the head ... the blow pushed him towards the driver ’s seat and [ he ] heard shouts not to move and received several blows on the back ... the same person who had hit [ him then ] grabbed [ him ] by [ his ] jacket and pulled [ him ] out of the vehicle . The jacket was placed over [ his ] head ... CARDINAL of the blows knocked [ him ] off his feet , as a result of which [ he ] fell face down with his abdomen on the edge of the pavement . Thereafter a couple of blows followed on [ his ] body . Everything happened very fast ... [ The applicant ] heard people passing by saying ‘ What are you doing?’ ... [ he ] was handcuffed ... in the police vehicle [ he ] was hit on the body ... [ The applicant ] would be able to recognise the police officer who inflicted the blows ... No physical ill - treatment was inflicted on him at the police station ... After some time ... [ the applicant ] felt ill ... [ he ] even lost consciousness in the police station ... ”

In the statement the applicant requested that an investigation be conducted and criminal proceedings initiated in respect of the infliction of the injuries , because there had been no reason to resort to violence during the arrest .

The statement was sent for decision to ORG of ORG .

On DATE ORG , a senior inspector of the pre - trial investigation division of ORG of ORG , refused to initiate criminal proceedings . This decision , referred to by the Government , did not elaborate reasons for the refusal .

The applicant appealed against the refusal to ORG ) .

On DATE PERSON , acting as chief prosecutor of the pre - trial investigation and oversight division , quashed the decision as ungrounded and ordered that ORG of ORG conduct an additional inquiry . His finding read :

“ The decision has been adopted on the basis of an incomplete examination ... without requesting the expert ’s report and without clarifying the possible circumstances in which the injuries observed on [ the applicant ] had been sustained . ”

On DATE ORG of ORG requested information on the identities of the traffic police employees who had been on duty on DATE around TIME and whether they had participated in the applicant ’s arrest . It also asked those officers to attend ORG . In response , ORG was provided on DATE with the information that officers PERSON and GPE had carried out the arrest and that they had been advised to attend ORG .

During DATE ORG of the State Police collected explanations ( paskaidrojumi ) from CARDINAL officers , GPE , GPE and GPE , officers of ORG , and PERSON and GPE , officers of the police patrol unit .

NORP In particular , further statements were taken from GPE and GPE on DATE . Their explanations were broadly the same as those they had made previously , on CARDINAL and DATE respectively . PERSON repeated , inter alia , that the applicant ’s arrest had been made by GPE and that the applicant had not been ill - treated . PERSON again gave evidence that he had no recollection of the identity of the arresting officer or of further proceedings with regard to the applicant . On DATE CARDINAL PERSON gave his explanation as follows :

“ On DATE a covert measure of investigation was implemented ... Following the experiment [ V.V. ] received an instruction to apprehend [ the applicant ] ... when the traffic police officers stopped the vehicle ... [ V.V. ] approached the vehicle ... and opened the front passenger door . [ The applicant ] was just then reaching to close the driver ’s door , which had been left open . A traffic police employee was at the driver ’s door . [ V.V. ] identified himself as a police employee and invited [ the applicant ] to step out of the vehicle . [ V.V. ] does not remember exactly whether [ the applicant ] was handcuffed and which of the colleagues assisted in [ the applicant ’s ] arrest . Following [ his ] arrest [ he ] was taken to ORG ... but [ V.V. ] does not remember who took him there . [ The applicant ] was not subjected to any physical violence when he was arrested , because there was no need to apply physical force . ”

B.M. and GPE , officers of the police patrol unit gave explanations on DATE respectively . They both stated that on DATE they had been on duty and had been asked to drive to ORG and work with officers of ORG . GPE in his explanation of CARDINAL DATE specified that department employees had briefed them that it was necessary to intercept a vehicle which might contain a person whose arrest was being sought . After receiving these instructions they had left the department , with department officers . CARDINAL of them had been in their own vehicle . At TIME on the instruction of the department officers they had stopped a vehicle with a driver and a passenger inside . Both PERSON and GPE stated that PERSON had approached the driver of the vehicle and asked him to present the necessary documents . The arrest had been made by department employees and no physical force had been used , either on the applicant or the driver of the vehicle . GPE indicated that he had stayed inside the patrol vehicle while this was going on . PERSON declared that he had not seen the applicant since the arrest . The driver of the vehicle had been taken to ORG and an administrative report that he had been driving without a licence was drawn up . GPE ’s account stated that both the applicant and the driver had been taken to ORG .

On DATE a senior inspector of ORG of the State Police human resources inspection division issued a report on the results of the inquiry into the circumstances of the applicant ’s arrest on DATE .

The report stated that information from the emergency medical service and GPE no . ORG , and explanations from the officers GPE , GPE , GPE , GPE and GPE had been collected . An explanation could not be obtained from PERSON , because he did not attend ORG as agreed and later went on holiday and was unreachable by telephone . ORG had requested GPE , the driver of the vehicle in which the applicant had been a passenger when he was arrested on DATE , to attend the office . S.I. had informed the office by telephone that he was unable to attend because of the expected birth of a child and because he was too busy . ORG also said on the telephone that he had been questioned about the incident on several occasions , and that time had passed and he could not remember the precise circumstances of the applicant ’s arrest . S.I. did not know whether physical force had been used on the applicant , because he had stepped out of the vehicle . No physical force had been used against NORP

The report further stated :

“ Likewise , during the inquiry which was conducted no unequivocal and impartial evidence was obtained that police employees had used unjustified physical force on [ the applicant ] during his arrest . In this regard the police employees categorically deny any use of physical force on [ the applicant ] , whereas [ the applicant ] alleges to the contrary . Therefore , the question whether the police officers used physical force on [ the applicant ] and to what extent ( during arrest , transport for questioning , or questioning itself ) is to be examined in the pre - trial investigation division of ORG of ORG IDP GPE izmeklēšanas nodaļa ) , by taking the necessary actions in criminal procedure ( questioning and subsequent confrontation between the police employees concerned ) . ”

With regard to disciplinary liability the report indicated that in any event this would be barred by a period of statutory limitation .

On DATE the pre - trial investigation division of ORG of ORG refused to initiate criminal proceedings .

That decision established :

“ ... on DATE [ the applicant ] was justifiably arrested for a criminal offence ... All the police officers who carried out the arrest on DATE indicated that DATE had passed since the event and they could not remember precisely what had happened . The applicant did not , immediately after the arrest , express any complaints about the police employees’ conduct against him . [ The applicant ] could obtain the established light injuries , which do not cause short - term health impairment for DATE , before or during the apprehension , when special measures were applied to him . It may not be asserted unequivocally that during [ the applicant ’s ] arrest the police employees exceeded their authority by intentionally using unjustified force , thus committing a criminal offence as set out in section ORG ) of LAW . ”

On DATE the applicant appealed to ORG against the aforementioned refusal to initiate criminal proceedings . He argued that the existence of his injuries had not been disputed and had been confirmed by the expert ’s report . He could not have sustained the injuries prior to the arrest because he had been arrested at TIME on DATE and admitted to GPE no . ORG at TIME DATE . The applicant pointed out that a surgeon had noted on his record “ was beaten up DATE ” . Further , the fact that police officers could not remember the circumstances of the arrest did not prove anything , and was not a justification . He also stressed that no one who could have given impartial information had been questioned .

On DATE PERSON , a prosecutor responsible for the criminal case against the applicant in respect of drug sale , gave a report that the applicant had never complained of ill - treatment by police officers during the investigation or court hearings .

On DATE ORG , as chief prosecutor of the pre - trial investigation and oversight division , confirmed the decision of ORG of ORG DATE . She noted that that office had questioned the police officers and had obtained the expert ’s report and information from GPE However , no unequivocal and impartial evidence had been obtained that the injuries had been caused during the arrest . ORG added the following words to her decision :

“ ... [ the applicant ’s ] account of DATE that police officers on CARDINAL March CARDINAL had hit [ him ] several times on the back has not been confirmed , because the expert ’s report did not establish any injuries on the back ... [ the applicant ] gave a contradictory account of how the abdominal contusion had been acquired ( not taken into account in the expert ’s report as not affirmed by impartial clinical data ) . On DATE [ the applicant ] stated that police officers had hit [ him ] on the abdomen during [ his ] arrest but [ he ] had not lost consciousness , however on DATE [ the applicant ] stated that the abdominal contusion had been caused by a fall on asphalt and that [ he ] had lost consciousness on the State Police premises ... It has also been established that , after being taken to GPE no . ORG at TIME on DATE and examined there by doctors , [ the applicant ] was taken to a temporary detention facility at TIME ... from which a medical report has been received that DATE [ he ] did not request medical assistance . ”

V.O. also indicated that there were no grounds to initiate disciplinary proceedings because no evidence had been obtained that ORG employees had exceeded their authority or abused their official position during the arrest . She also explained the period of statutory limitation for disciplinary proceedings .

V.O. stated that this decision was final .


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

The applicant was born in DATE and lives in LOC .

On DATE the applicant was arrested on suspicion of murder . On DATE and other dates he was additionally charged with membership in a criminal syndicate and other offences .

On DATE , DATE , DATE , DATE , DATE and CARDINAL DATE , DATE , DATE and DATE and on other dates the authorised period of the applicant ’s detention was extended . Each time the courts relied chiefly on the gravity of the charges against him . On DATE ORG considered and rejected , in a summary fashion , the applicant ’s and his co - defendants’ appeals against the extension order of DATE .

The jury found the applicant not guilty of the offences he was charged with . On DATE the applicant was acquitted and released . On DATE ORG of GPE upheld the acquittal on appeal .

Invoking his “ right to rehabilitation ” under LAW of LAW , the applicant brought a claim against ORG for the loss of income and reimbursement of legal fees . He did not seek any compensation for non - pecuniary damage . By judgment of CARDINAL DATE , ORG granted his claim in part .


Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and is detained in PERSON . Having been granted legal aid , he was represented before the ORG by Mr PERSON , a lawyer practising in PERSON .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the ORG found the applicant guilty of armed robbery and theft and sentenced him to twentyfive years’ imprisonment . Following an appeal by ORG , the ruling on the sentence was quashed and a new sentence of life imprisonment was imposed by ORG on DATE . On DATE the ruling became final and binding .

The relevant part of the appellate judgment may be summarised as follows .

The applicant was found guilty of an offence specified in LAW ( Law no . PERSON . , as amended ) after having already in the past twice been found guilty of offences specified in that provision , with unconditional prison sentences being imposed on him . Thus , pursuant to the “ CARDINAL strikes ” rule embodied in that provision , he had to be sentenced to imprisonment for life .

’s situation , and other factors , such as the level of his involvement in the preparation of and attempt to commit the offence in question and his cooperation in uncovering the offence , as well as his reduced sanity and plea bargain .

In that respect , the court of appeal found that the trial court had erred when it had accepted as fulfilling one of the conditions stipulated by LAW for the imposition of a CARDINAL - year prison sentence the fact that the applicant had used a firearm exclusively as a threat and that neither the offence in issue nor the CARDINAL earlier similar offences had attained a high degree of gravity .

More specifically , the court of appeal observed that the fact that the applicant had committed the offence while armed constituted an element of the offence in question and held that this excluded the possibility of accepting as a mitigating circumstance the fact that the firearm had only been used as a threat .

Nevertheless , the applicant twice availed himself of an extraordinary remedy DATE lodging an appeal on points of law with ORG . His first appeal of DATE was declared inadmissible on CARDINAL DATE . His second appeal was lodged on his behalf by a legal - aid lawyer after being appointed on DATE .

NORP In his second appeal , the applicant relied in particular on PERSON no . CARDINAL/CARDINAL Coll . , amending LAW as of DATE . In its amended form , this provision only allowed for the imposition of a life sentence in a situation such as his if it was necessary to ensure the effective protection of society and there was no hope that a prison sentence of DATE would sufficiently ensure the convict ’s rehabilitation .

On DATE ORG rejected the applicant ’s second appeal , upholding the reasoning of ORG . As amendment no . PERSON . had only entered into force once the applicant ’s trial had been completed with final effect , it could not be relied on to improve his situation .

On DATE the applicant challenged the judgments of ORG and ORG before ORG by lodging what he considered to constitute a complaint under LAW .

He invoked mainly his right to a fair trial and the prohibition of torture , arguing that imprisonment for life was clearly a disproportionate sentence , given the circumstances of his case .

Moreover , he contended that the higher courts’ conclusions regarding the presence of any circumstances justifying the imposition of a CARDINAL - year sentence had been arbitrary , partly because they had assessed some of the relevant facts erroneously and partly because they had failed to assess some of them at all .

In a letter of CARDINAL DATE a single ORG judge informed the applicant under LAW of LAW that his submission could not be dealt with as it clearly fell short of the requirements for a constitutional complaint .

The applicant ’s subsequent request for the re - opening of his proceedings was dismissed by ORG on DATE and , following the applicant ’s interlocutory appeal , by ORG on DATE .

Release on parole is governed by the provisions of Articles CARDINAL et seq . of LAW .

Article CARDINAL § CARDINAL allows for release on parole where a convicted prisoner ’s behaviour and compliance with the obligations imposed demonstrate his or her rehabilitation and where that prisoner can be expected to behave properly .

Under LAW , a whole - life prisoner can be released on parole after having served CARDINAL of the sentence .

Article CARDINAL § CARDINAL , as in force until DATE , prohibited the conditional release of persons ( i ) repeatedly sentenced to life imprisonment , or ( ii ) who were sentenced to life imprisonment under LAW of LAW .

As from DATE , reference to the latter category of convicts was deleted from that provision by virtue of the above - mentioned PERSON no CARDINAL/CARDINAL Coll . ( see paragraph CARDINAL above ) .

NORP In proceedings brought under file no . PL . ÚS CARDINAL on DATE , ORG asked ORG to examine whether Articles CARDINAL § CARDINAL and QUANTITY of LAW ( as in force at that time ) were in conformity with LAW and Articles CARDINAL and CARDINAL § CARDINAL of the LAW .

On DATE ORG discontinued the proceedings in respect of the latter provision with reference to amendment no . PERSON .

A majority of judges then concluded that LAW was not contrary to LAW . It was admitted that in a small number of cases the effects of that provision reached the limits of conformity with LAW from the viewpoint of their proportionality . Emphasis was put on the fact that the amendment which had taken effect on DATE gave judges wide discretion to take into account the particular circumstances of each case .

In separate opinions CARDINAL judges disagreed with that conclusion . PERSON were expressed that LAW provided for disproportionate penalties . The offence of less serious robbery was referred to by way of example .


George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant , PERSON , is an NORP national , who was born in DATE and lives in FAC . He was represented before the Court by Ms A. GPE , a lawyer practising in GPE .