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

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

The applicants , all NORP nationals , were born in DATE and DATE respectively . At the material time they lived in different flats in a residential block ( “ the building ” ) constructed in DATE and situated at CARDINAL FAC in GPE .

The building is located in the city centre , in close proximity ( QUANTITY ) to the “ NORP ” thermal power plant ( “ the plant ” ) . The plant was constructed in DATE and reconstructed at a later date . It started operations in DATE . For DATE it burned coal to generate power , before replacing it with natural gas . The plant provided the adjacent residential areas with electricity and heat .

Several accidents have been reported throughout the plant ’s history . An accident on DATE rendered it inoperative for DATE . An expert report concerning the incident disclosed that the main reason behind the accident was the fact that no major repairs had been carried out there since DATE .

On DATE Presidential Decree No . CARDINAL was issued , stating that the plant was to be privatised and sold directly to a private company . The privatisation agreement between the Government and the company was concluded on DATE .

On DATE the plant partially ceased generating power owing to financial problems . However , it continued to use some of the generators .

According to the applicants , while operational the plant ’s dangerous activities were not subject to the relevant regulations , as a result of which , in addition to some other alleged nuisances , it emitted various toxic substances into the atmosphere negatively affecting their well - being .

On unspecified dates the applicants and other residents of the building lodged complaints with the municipal authorities , alleging that nuisances were emanating from the plant such as air , noise and electromagnetic pollution and water leakage . By official letters dated DATE , DATE and DATE the FAC ( “ FAC ) acknowledged that the residents of the building had been affected by the nuisances they had complained of . It advised ORG that relocation of the plant would not be in the public interest in view of the acute energy crisis in the country and suggested that the residents of the affected area be offered electricity and heat free of charge as a form of compensation .

In the letter dated DATE ORG asked the plant to implement certain environmental protection measures , including the installation of chimney filters to reduce the air pollution emanating from the plant . The request was left unaddressed .

On DATE , in an official response to a query by the applicants , ORG confirmed that the plant ’s activities fell within the “ first category ” within the meaning of LAW ( see paragraphs DATE below ) and that ORG ( “ ORG ) was responsible for issuing the relevant permit .

On an unspecified date in DATE the applicants and other residents of the building brought an action for damages against the plant concerning the environmental nuisances emanating from the plant . A friendly settlement was reached between the parties on DATE , according to which the claimants would renounce their claims in exchange for a commitment by the plant ’s management to provide them with hot water , electricity and heat free of charge . Owing to technical difficulties and a lack of cooperation between the relevant authorities , the friendly settlement was left unenforced .

On DATE the applicants and CARDINAL other residents of the building ( “ the claimants ” ) brought a fresh action against the plant and other respondents including the GPE electricity distribution company , ORG ( “ ORG ” ) , FAC and ORG . They claimed compensation for pecuniary and non - pecuniary damage for the harm caused to their health and well - being by the air , noise and electromagnetic pollution and water leakage emanating from the plant . They relied on privately commissioned independent expert opinions in support of their complaints .

On DATE and DATE the NORP ORG granted a request by the claimants and ordered ORG , ORG and ORG to arrange a number of expert examinations . The latter were intended to measure the environmental pollution caused by the plant , clarify how the associated harmful effects had affected the claimants’ health and might have endangered human life , and identify appropriate remedies .

An expert examination dated DATE and carried out by the Expertise and ORG at ORG concluded as follows :

“ As the “ NORP ” plant does not have a [ buffer ] zone and is immediately adjacent to a residential building , the plant ’s chimneys must be equipped with appropriate filters and other equipment to protect the population from the hazardous gases . ”

On DATE ORG ( “ the ORG ” ) at ORG issued an expert opinion on the air pollution and noise levels in the residential area concerned . It noted that while the plant ’s equipment responsible for the emission of toxic substances stood idle , it was impossible to determine the real pollution situation with which the residents had had to cope for DATE and noted that “ the results were considerably minimised compared to the possible real picture . ”

NORP The expert opinion disclosed that the plant ’s technical compliance document was defective as it did not reveal all the chemical substances known to be emitted into the atmosphere in the course of natural gas burning . That document also incorrectly indicated the height of the chimneys as QUANTITY instead of the actual QUANTITY , which could lead to the pollution data being misleadingly decreased .

With regard to the air pollution and the possible impact upon the residents of the building , the expert opinion concluded as follows :

“ Considering the fact that the plant does not have a [ buffer ] zone and is immediately adjacent to a residential building ... , taking into account the direction of the wind , a whole bouquet of emissions is reaching into the homes ... negatively affecting the population living in the adjacent area . ”

The opinion specified that even where individual hazardous substances were considered to be within the acceptable margin , it was necessary to consider the combined impact of various substances upon the health of the population as the combined toxicity might go beyond the acceptable limits . It continued to note in this connection that the concentrated toxicity of the gases emitted by the plant was twice the norm and the residents of the building concerned had to live in conditions where the concentration of toxic substances surpassed the acceptable limits TIME a day . The ORG proposed that the competent municipal authorities either ban those industrial activities or ensure the plant ’s relocation outside the town , where at least a buffer zone could be established .

On DATE ORG at ORG responded to a query by the applicants and listed the diseases that might potentially be caused by excessive concentrations in the air of substances such as SOCARDINAL , ORG , ORG , smoke and black dust . These were mucocutaneous disorders , conjunctivitis , bronchitis , bronchopulmonary and other pulmonary diseases , allergies , different types of cardiovascular disease and anoxemia ( low oxygen levels in the blood ) , which could lead to other serious disorders .

On DATE the ORG issued an expert opinion concerning the noise levels in the building . Without specifying the noise levels in the individual flats of the applicants , the opinion concluded in generic terms that “ the residential building ... situated at CARDINAL FAC [ was ] affected by noise in excess of the permissible limits . ”

On DATE the ORG expert carried out an additional investigation aimed at determining the noise levels in the individual flats of the claimants . It concluded that the permissible levels of noise were exceeded only with respect to CARDINAL claimants and not in the applicants’ apartments .

An expert opinion issued by the ORG on DATE stated that the intensity of the electromagnetic waves did not exceed the permissible levels .

The expert opinion produced by ORG on DATE disclosed that , in some instances , the intensity of the electromagnetic fields in the vicinity of the building exceeded the permissible levels . It concluded however that it was impossible to establish the exact source of the electromagnetic pollution .

On DATE the court ordered ORG at ORG to examine the health of CARDINAL of the claimants . The third applicant and another claimant were not included , without any reasons being given for their exclusion . Its experts were asked to give an opinion on whether the claimants were suffering from any diseases which might have been caused by the pollution emanating from the plant .

The Forensic Medical Examination Centre carried out the courtcommissioned examination DATE and DATE . A panel of experts concluded that the CARDINAL claimants “ [ had ] been affected by a combined impact of protracted exposure to harmful factors such as SOCARDINAL , NO , COCARDINAL as well as black dust , noise and electromagnetic pollution negatively impacting their health . ” The first and second applicants were found to be suffering from largely similar health conditions such as neurasthenia and asthenic syndrome . The panel considered it “ possible that the asthenic syndrome and neurasthenia ... [ had been ] caused by the prolonged and combined effect of being exposed to harmful factors . ” It added that “ the worsening of the health conditions of the persons examined [ had not been ] excluded . ”

On DATE the ORG dismissed the claims of the applicants and another claimant , but partially allowed the claims of CARDINAL other claimants ( “ the successful claimants ” ) with respect to the noise pollution emitted by the plant ’s generators . Relying on the expert examination of the ORG concerning the noise levels , the court found that only the CARDINAL successful claimants’ flats were affected by noise in excess of the permissible limits . It awarded them CARDINAL NORP laris ( GEL – equivalent to CARDINAL ( ORG ) ) each , holding the plant , FAC , and ORG jointly liable :

“ ... Both FAC and the Ministry failed to fulfil the obligations imposed on them by law . That is to say , despite the claimants’ numerous requests and complaints , [ the authorities concerned ] failed to take specific measures to ensure an environment safe enough for the claimants’ health . ”

Furthermore , acknowledging that the plant was responsible for the infiltration of water into the foundations of the building , the court ordered it to halt the leakage and make the necessary repairs to the ruptured walls .

As regards the air pollution complained of , the court found that the material before it did not prove a causal link between the emissions and the claimants’ health problems described in the Forensic Medical Examination Centre ’s expert report . It further suggested that the third applicant and another claimant had refused to undergo the medical examination .

While the court accepted the experts’ conclusions that the plant had breached certain environmental standards by not having filters and other purification equipment in place to decrease the emission of toxic substances , it refused to order the plant to install such equipment on the grounds that the sole remedy requested by the claimants had been compensation for the damage caused by the pollution .

On DATE the claimants appealed to ORG . Relying on the ORG ’s judgment in the case of PERSON v. GPE ( DATE , Series A no . CARDINAL ) and the findings of the courtcommissioned expert examinations at the domestic level , they reiterated their complaints about the lack of a buffer zone and the inherent risk of pollution , the absence of purification equipment over the plant ’s chimneys and its impact upon their health and well - being , and the defectiveness of the plant ’s technical compliance document . They further disagreed with the lower court ’s findings with respect to the alleged noise pollution emanating from the plant .

On DATE ORG delivered a final judgment in the case . It upheld the appeals of the CARDINAL already successful claimants and ordered the plant ’s operators , ORG and ORG to pay them , jointly , GEL MONEY ( EUR CARDINAL ) each for the deterioration of their health caused by the noise pollution that persisted after the partial termination of the plant ’s activities on DATE and affected them individually ( see paragraphs CARDINAL and CARDINAL above ) . In addition , it ordered the plant to pay GEL MONEY ( EUR CARDINAL ) DATE to CARDINAL claimant and GEL CARDINAL ( EUR CARDINAL ) to the other . It further upheld the lower court ’s finding concerning the plant ’s responsibility for the infiltration of water into the foundations of the building .

ORG rejected the complaint concerning the electromagnetic pollution as unsubstantiated .

As regards the submissions concerning the air pollution , ORG dismissed them as unsubstantiated . It reasoned that the PERSON reference to violations of environmental standards , regardless of their validity , could not have served as a basis for awarding damages for air pollution considering that they had not requested that the plant ’s permit be revoked , that filters be installed over the chimneys , that other environmental protection measures be implemented , or that the hazardous activities be banned or relocated .

The court further noted that the ORG ’s findings in the case of PERSON NORP v. GPE could not serve as grounds for requesting damages . It highlighted the fact that the plant in the instant case had been operational DATE while the flats had been built at DATE . It consequently concluded that the applicants had accepted the associated dangers when choosing to settle near the plant and were effectively barred from claiming any damages in that respect within the meaning of the Compensation for Damage Inflicted by LAW ( see paragraph CARDINAL below ) . It thus concluded that the appellants had been under a duty to tolerate nuisances such as noise , smells , steam and gases caused by the ordinary industrial activities of the neighbouring plant , whose essential purpose had been to supply the nearby buildings with heating and hot water . The court interpreted the ORG unenforced friendly settlement in an earlier set of proceedings ( see paragraph CARDINAL above ) as their acceptance of the ecological discomfort .

ORG further reasoned that at the time of the proceedings the plant had suspended most of its operations and had no longer been emitting any substances into the air . Consequently , the appellants were no longer being affected by the pollution . Moreover , they had failed , in the court ’s opinion , to show what specific pecuniary damage , if any , had been sustained as a result of the air pollution in DATE . It was further noted that the appellants had not specified the costs which they had incurred or would inevitably incur in the future for medical treatment for their health problems .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty)

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

The applicant was born in DATE . At the time of lodging his application , he was detained in a Centre for persons in preventive detention in FAC . He now lives in PERSON .

On DATE the ORG convicted the applicant of rape and sexual assault . It sentenced him to eight years’ imprisonment and ordered his preventive detention under LAW ( see paragraph CARDINAL below ) . The court found that in DATE the applicant , having acted with full criminal responsibility , had raped an DATE woman whom he had lured into a forest . It noted that DATE and CARDINAL DATE the applicant had been convicted of CARDINAL counts of rape of young women , committed DATE after his release from prison . Therefore , and having consulted a medical expert , the court found that the applicant had a propensity to commit serious sexual offences and was dangerous to the public .

On DATE the applicant , who had fully served his prison sentence , was placed for the first time in preventive detention , initially in FAC . He had thus served DATE in preventive detention by DATE .

On DATE the Lübeck ORG , having heard the applicant in person as well as his lawyer , by whom he was represented throughout the proceedings , ordered the applicant ’s preventive detention to continue .

ORG considered that the requirements set up by LAW of LAW , read in the light of ORG judgment of CARDINAL DATE ( see paragraph CARDINAL below ) , in order for retrospectively - extended preventive detention to continue , were met . It found that the applicant suffered from a mental disorder , for the purposes of section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . He had a personality and conduct disorder as described by the relevant tool for the classification of diseases , ORG in its current version ( ICD-CARDINAL ) . ORG endorsed the findings which psychiatric expert PERSON had made in his report dated DATE on the possibility of granting relaxation of the conditions of the applicant ’s detention ( PERSON ) after having examined the applicant in person . The expert had found that the applicant suffered from a profound and serious personality disorder with narcissistic elements and a lack of self - esteem . His disorder was characterised by denying and idealising conduct , total denial of his own aggression and minimisation of his criminal acts .

Furthermore , in ORG view , there was still a high risk that the applicant , owing to the said specific circumstances relating to his person and his conduct , would commit the most serious sexual offences if released . It had repeatedly been confirmed , in particular , by expert PERSON and by FAC hospital , that the applicant needed comprehensive therapy for sexual offenders in a social therapeutic institution . However , the applicant , who had not completed therapy , had confirmed at the hearing that he refused transfer to the prison ’s social therapeutic department . Furthermore , the applicant had already raped CARDINAL women and had repeatedly reoffended shortly after his release .

On DATE the applicant lodged an appeal against ORG decision with ORG . He argued that his continued preventive detention beyond the former tenyear time - limit breached LAW , as interpreted by ORG , and the LAW . He complained , in particular , that ORG had failed to obtain a new report by a different expert and had relied on the report of expert PERSON dating back CARDINAL - and - a - half years , on relaxation of the conditions of the applicant ’s detention , which had not addressed the issues relevant to his continued detention .

On DATE the Schleswig - Holstein Court of Appeal dismissed the applicant ’s appeal . As regards the finding that the applicant suffered from a mental disorder for the purposes of CARDINAL ( CARDINAL ) of LAW , ORG stressed that the decision to extend the applicant ’s preventive detention had not only been based on the written report submitted by expert PERSON in DATE . The expert had been heard in person by ORG in different proceedings ( concerning the applicant ’s transfer to a psychiatric hospital , see paragraph CARDINAL below ) on DATE and had updated and confirmed his previous findings . His assessment had further been shared by ORG hospital in its statement dated DATE on the therapeutic progress made by the applicant . The hospital , having regard to the voluminous casefile , had confirmed expert PERSON ’s conclusion that the applicant , who had refused any therapeutic treatment for DATE , suffered from a profound personality disorder as defined by the ICD-CARDINAL , namely a narcissistic personality disorder with emotionally unstable and sadistic elements .

ORG , having regard to the applicant ’s previous offences and the fact that therapy to date had not yielded success , further agreed that there was still a high risk that the applicant would commit the most serious sexual offences if released . As had been confirmed by the applicant in the hearing before ORG , his personal and therapeutic situation had not changed since ORG last decision of CARDINAL DATE in which , in periodic review proceedings , it had ordered the extension of the applicant ’s preventive detention .

On DATE the applicant lodged a constitutional complaint with ORG . He complained that the extension of his preventive detention beyond the former statutory DATE time - limit had violated his right to liberty and the protection of legitimate expectations in a ORG governed by the rule of law .

The applicant claimed that the restrictive criteria set up by ORG in its judgment of CARDINAL DATE for a continuation of his retrospectively extended preventive detention had not been met . In particular , the order for the continuation of his preventive detention had been based on an old expert report on relaxation of the conditions of his detention , which had not addressed the criteria set up by ORG . In these circumstances , the courts had not had at their disposal a sufficient basis for concluding that he had a mental disorder for the purposes of LAW . In any event , he did not suffer from a mental illness as required by LAW .

On DATE ORG , without giving reasons , declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL ) .

From DATE until CARDINAL DATE the preventive detention order against the applicant was executed in PERSON , where the applicant was detained together with persons serving their prison sentence . For as long as the applicant ’s detention was executed at that prison during the time covered by the proceedings at issue , the applicant , having refused repeated offers of treatment , in particular transfer to the socialtherapeutic institution of FAC , apparently did not undergo any therapy for sexual offenders . His occasional conversations with the prison psychologists had been discontinued in DATE .

On CARDINAL DATE the applicant was transferred to the newly - set - up ORG for persons in preventive detention in FAC . That ORG was built in order to comply with the constitutional requirement , as defined by ORG in its judgment of CARDINAL DATE , to differentiate between preventive detention and imprisonment . Soon after his transfer to that ORG the applicant started comprehensive therapy , including CARDINAL - to - one and group therapy sessions . He was granted leave without escort from DATE .

Prior to the proceedings at issue , on DATE ORG dismissed the prosecution ’s request to transfer the applicant to a psychiatric hospital for the further execution of his preventive detention under Article DATE LAW ( see paragraph CARDINAL below ) . Having heard psychiatric expert PERSON , ORG found that the applicant ’s reintegration into society could not better be supported in a psychiatric hospital . It was necessary for the applicant to undergo therapy for sex offenders in a social - therapeutic department in prison or possibly with an external social therapist . Transferring the applicant , who was not willing to undergo therapy , to a psychiatric hospital against his will would not yield any success .

On DATE , in new review proceedings , ORG ordered the applicant ’s preventive detention to continue . It had regard to the report dated DATE , submitted by psychiatric expert PERSON , on the applicant ’s mental condition and the danger he represented . Having examined the applicant in person , PERSON had considered that the applicant was an accentuated personality , possibly with sadistic personality traits , and lacked self - esteem . He found , however , that the applicant could not be diagnosed with a mental disorder as defined in the ICD-CARDINAL ; in particular , he showed no signs of sexual sadism . There was a medium risk that the applicant would again commit serious sexual offences if released .

On DATE ORG , having regard to an additional report drawn up by expert PERSON , declared the applicant ’s preventive detention terminated and ordered his release on DATE . It found that the applicant neither suffered from a mental disorder nor was there a high likelihood that he would commit the most serious crimes of violence or sexual offences if released .


Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants , Mr PERSON and ORG , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE .

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

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

NORP In DATE the applicants moved to a flat in GPE owned by ORG ( “ the ORG ” ) on the basis of a handwritten note signed by GPE , allegedly the person authorised by ORG in GPE to dispose of the ORG ’s flats . The note bore the ORG ’s official stamp .

The applicants paid the rent and utility bills in respect of the flat from DATE .

NORP In DATE criminal proceedings were conducted in ORG against GPE He was found guilty of abusing his position on the ground that he had , inter alia , unlawfully provided the applicants with the flat at issue . The first applicant was a witness in these proceedings .

After GPE declared independence in DATE , all the ORG ’s property became ORG property .

According to the Government , in DATE the first applicant bought another flat in GPE , measuring QUANTITY , which he donated to his son in DATE .

On DATE the ORG brought a civil action against the applicants in ORG claiming repossession of the flat formerly owned by the ORG and the applicants’ eviction .

According to the Government , since DATE the applicant ’s elder son has been renting out another flat in GPE .

ORG granted the claim against the applicants on DATE . The relevant part of the judgment reads :

“ ... it has been established that in DATE an authorized person from ORG of the former GPE , GPE , issued an order , handwritten on an ordinary piece of paper , instructing PERSON ( an administrator of the then ‘ GPE Housing Company’ ) to hand over the keys of the flat at issue to the first defendant , stamped it with the stamp of ORG and signed it . Subsequently , PERSON presented that certification to GPE , who gave him the keys to the flat . PERSON was employed at that time with ‘ PERSON , and was therefore neither a member of the military personnel within the ORG nor a civilian in its service .

Had the first defendant belonged to the category of persons who could have acquired the right to use such a flat , that is to say , had he fulfilled the requirements for the granting of a specially protected tenancy of the flat at issue , nothing would have prevented the authorized person of the former ORG of the GPE , GPE , from issuing him a valid decision to such effect ...

The fact that the defendants lived in the flat at issue for DATE of time with the ‘ knowledge and NORP of the provider of the flat and entirely fulfilled the obligations of protected tenants is irrelevant ... as regards their lack of status as holders of a specially protected tenancy ... because such a status could be implicitly recognised only in respect of persons who had acted in good faith . In this case it is clear that this element was missing , since the defendants knew or ought to have known that they acquired possession of the flat at issue in an illegal and unlawful manner . The fact that the provider of the flat did not ask for the eviction of the defendants can not place them in a more favourable legal position ... ”

The first - instance judgment was upheld by ORG on DATE . It endorsed the reasoning of the first - instance court and added :

“ According to the case - law [ of ORG ] concerning the application of section CARDINAL of the former LAW , a person who dwells in a flat for DATE of time with the knowledge and consent of the provider of the flat , and who fulfils all the obligations of a holder of a specially protected tenancy and acts in every respect as a person who has concluded a written contract for a protected tenancy , may be regarded as a holder of a protected tenancy even though there is actually no written contract governing the use of the flat .

However , even though the defendants have been using the flat at issue since DATE and have paid the rent and utility bills for it , they can not be regarded as holders of a protected tenancy of the flat since they acquired possession of it as a result of the abuse of office of the authorized person [ representing ] the former provider of the flat , [ a fact of ] which the defendants , and in particular the first defendant , had been aware and ought to have been aware [ sic ] because they were witnesses in the criminal proceedings conducted before ORG against the persons concerned ... Therefore , the defendants did not act in good faith , which is a condition for recognizing [ them as holders of a ] specially protected tenancy ... ”

According to the Government , in DATE the applicants moved to GPE , where they have had their registered residence ever since . The second applicant rented the flat at issue to other persons between an unspecified date in DATE and DATE .

The applicants lodged a constitutional complaint on DATE which was dismissed by ORG on DATE . ORG endorsed the lower courts’ reasoning .

According to the Government , on DATE the applicants vacated the flat .

According to the applicants they were forcibly evicted from the flat in DATE .

The relevant part of LAW ( Official Gazette nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) reads :

“ A specially protected tenancy is acquired on DATE the tenant moves into the flat on the basis of a final decision allocating the flat or on another valid legal basis , unless otherwise provided by this LAW . ”

Section CARDINAL paragraph CARDINAL of LAW ( Zakon o vlasništvu i drugim stvarnim pravima , ORG no CARDINAL/CARDINAL ) reads as follows :

“ An owner has the right to seek repossession of his or her property from a person in whose possession it is . ”


CASE OF DONČEV AND BURGOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses)

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants were born in DATE and DATE respectively and live in GPE . They were police officers .

On DATE the public prosecutor ordered , under sections CARDINAL ) and CARDINAL of LAW ( see DATE and DATE below ) , special investigative measures including secret surveillance , audio - visual recording , a simulated offer of a bribe and the use of undercover agents ( the last two measures were to be applied by CARDINAL police officers whose identity remained undisclosed in the order ) . The order was valid DATE and DATE . It was issued on the basis of a request from ORG within ORG , which suspected that traffic police officers had been accepting bribes from traffic offenders .

On DATE the applicants stopped a car near GPE , since it was being driven at QUANTITY / h over the stipulated speed limit . The driver was a certain GPE from GPE ( “ the driver ” ) . The applicants warned the driver and registered his name and the fact that they had warned him in the official record . They did not draw up an official report ( записник ) , nor did they press charges against him .

On DATE ORG ( “ the Ministry ” ) lodged a criminal complaint with the public prosecutor , alleging that the applicants had accepted a bribe of MONEY ( ORG ) from the driver ( who was in fact an undercover agent , see paragraph CARDINAL above ) in exchange for not drawing up an official report and pressing charges against him . The complaint stated that the first applicant had fully admitted to the accusations and the second applicant had partially done so .

On DATE an investigating judge of ORG ( “ the trial court ” ) opened an investigation into the allegation that the applicants had accepted a bribe . In the proceedings before the investigating judge the applicants remained silent .

According to the indictment of DATE , the applicants accepted the bribe in exchange for not drawing up a report and instituting misdemeanour proceedings against the driver . The public prosecutor requested that the trial court take oral evidence from the accused and admit the evidence obtained as a result of the order of CARDINAL DATE ( see paragraph CARDINAL above ) : CARDINAL photographs ; and an audio and video recording of the discussion between the applicants and the driver of DATE ( see paragraph CARDINAL above ) .

On DATE the trial court admitted the evidence produced by the prosecutor . The applicants remained silent . On DATE the court rendered a judgment in which it convicted the applicants and sentenced them to a suspended prison term of DATE . On the basis of the audio recording of the incident , the court established that the driver had exceeded the speed limit . He had offered DATE and the applicants had accepted – money in exchange for not pressing charges against him . In this connection , the court noted that under the law the driver was liable to a fine ( between MKD CARDINAL,CARDINAL and MKD CARDINAL,CARDINAL ) or CARDINAL days’ imprisonment , as well as a compulsory security measure ( driving ban ) , for such an offence .

NORP The applicants’ legal representatives , PERSON and PERSON , appealed against the judgment , arguing that there was no evidence to corroborate the ORG guilt . The audio evidence attested that the driver had offered the applicants money , but it did not establish that they had accepted it . Indeed , no bank notes marked in advance were found in their possession . The applicants further argued that under the applicable regulation , they had been authorised to warn the ORG first applicant challenged the credibility of the audio recording , arguing that the transcript of the audio material was incomplete . The second applicant further complained that the trial court had neither examined the driver , nor confronted them with him .

On DATE ORG accepted the applicants’ appeals and ordered a re - examination of the case . In so doing , it found that the lower court had incorrectly established the facts and had not provided sufficient reasons for its judgment . In this connection , it stated that neither the photographs nor the audio evidence had established that the applicants had accepted the bribe from the driver , who had not been examined . It therefore instructed the trial court to re - examine already admitted evidence and to question the driver in order to establish whether he had offered , and the applicants had accepted , MKD CARDINAL in exchange for not pressing charges against him . It further stated :

“ ... other evidence should be admitted if necessary ( confrontation between the accused and ( the driver ) ) . ”

At a hearing , before the trial court , held on CARDINAL DATE , the applicants denied that they had accepted money from the driver . They stated that they had been authorised , under the law , to warn him . They further contested the audio recording , arguing that there were gaps and interruptions in it . Mr GPE , the applicants’ legal representative , asked the court to hear oral evidence from the driver , as ordered by ORG ( see paragraph CARDINAL above ) , and to obtain information from the Ministry as to whether the money had been marked .

On DATE the trial court asked the Ministry to provide the name and address of the driver in order to examine and confront him with the applicants , “ as instructed by the higher court ” . It also sought information as to whether , under the order of CARDINAL DATE ( see paragraph CARDINAL above ) , the money allegedly given to the applicants had been marked . In the absence of a reply , on DATE the court repeated its enquiry . On DATE the Ministry informed the court that the money had not been marked . That would have been the case had special investigative measures ( audio and video recording ) not been ordered . It further stated that the undercover agent ( лице со прикриен идентитет ) who had been used to simulate the offer of a bribe could be examined as a protected witness under section CARDINAL(CARDINAL ) and ( CARDINAL ) of the consolidated version of LAW ( “ LAW ” ) , ( which corresponded to section DATE of the LAW as amended in DATE , see paragraph CARDINAL below ) .

In a hearing held on DATE the applicants objected to the court ’s examining the driver . In this connection , they stated that there were CARDINAL persons with the same initials ( ORG ) as the driver employed in the Ministry .

On DATE the trial court examined the driver . According to the depositions taken on that date , he was regarded as a protected witness ( заштитен сведок ) and his examination was carried out under section CARDINAL of the LAW ( which corresponds to section CARDINAL-a of the Act of DATE as amended in DATE ( see paragraph CARDINAL below ) ) . The relevant parts of the court record of that date read as follows :

“ The protected witness should be examined in a special room only in the presence of the judge and the public prosecutor in order to protect his identity . Since there is no such room in the court building , [ the applicants ] and their representatives , ( as well as ) the entire public , were ordered , on the basis of an advance agreement ( претходен договор ) , to go into the waiting room .

The accused and the lawyers did not object .

The witness , whose pseudonym is ORG ( protected witness ) from GPE , DATE of age ... having been warned about the legal consequences of false testimony , states :

‘ At TIME on DATE , in accordance with the [ public prosecutor ’s ] order , I drove to GPE together with CARDINAL other persons ... I deliberately exceeded the speed limit assuming that there would be a road patrol ... I was stopped ... ( then he described the events concerning another car which the applicants had stopped at that time , when ( CARDINAL of the applicants ) had allegedly received MKD CARDINAL from the driver of that car ) ... the policeman who took the money from the other driver approached me and I said that it was unfair that they should punish me unlike the other ( driver ) , who had paid ... Then the other policeman , who still had ( in his hands ) my ( driving ) documents , told me ‘ Ok , we wo n’t punish you either’ and gave the documents back to me . I asked them whether I should also reward them for having not punished me , as the ( other ) driver had done , to which ( CARDINAL of the applicants ) replied ‘ It will be fine if you give something’ . I asked ‘ how much should I give?’ , and he replied ‘ There is no pricelist for that , it ’s up to you’ . Then , I said ‘ I ’ll give you as much as ( the other driver ) , MKD CARDINAL’ . I took out from my pocket MKD CARDINAL and gave them to ( one of the applicants ) ... I asked them whether they would press charges against me or issue any penalty , to which ( CARDINAL of the applicants ) replied ‘ Keep your mouth shut and drive GPE ...

The public prosecutor further asked the driver whether the money had been marked , to which he replied negatively .

The record further stated :

“ Since there are no further questions , the court decides to remove the protected witness from the court room and to call the accused and their lawyers . A transcript of the statement of the protected witness should be given to them so that they may put questions to him through the court , to which the protected witness should reply .

The accused and their lawyers were called to enter the court room and at that moment , they said , in a loud voice ‘ We request exclusion of the adjudicating judge , the panel , the trial court and ORG , since ( the judge ) is conducting the proceedings unlawfully and is not following the instructions of ORG . It is so since we were removed from the court room for TIME , instead of being confronted with the witness . We suspect that no one gave a statement , all the more so since the accused have already met the protected witness ” .

The court ordered an adjournment . On DATE the presidents of the trial court and ORG respectively rejected the ORG requests for exclusion .

A hearing held on DATE was attended by the applicants and Ms M.G. , their lawyer . The driver was absent . The court stated that there was no evidence that he had been properly summoned for the hearing . The applicants were served with a copy of the court record of DATE and the driver ’s statement . The court minutes stated :

“ ... ( the applicants ) were told that they could put questions in writing , which the court would then forward to the protected witness in order for him to reply . ”

On DATE the trial court held a hearing . It was attended by the applicants and Mr PERSON , their lawyer . The driver was not present , despite the fact that he had been properly summoned . Mr PERSON stated :

“ I decline to examine the protected witness , ORG and I object to the court record of DATE since it is contradictory and untrue ( Се откажувам од распит на заштитениот сведок К.Н. и приговарам на записниикот од DATE бидејќи е контрадикторен и невистинит ) . ”

On CARDINAL DATE the trial court held another hearing , at which the applicants confirmed that they had received the bill of indictment and understood the charges against them . Both applicants maintained that they would be represented by Mr PERSON They further stated :

“ I maintain the statement given at the hearing of CARDINAL DATE [ see paragraph CARDINAL above ] and I have nothing to add ” .

NORP The court then read aloud the driver ’s statement of DATE and admitted as evidence the public prosecutor ’s order , CARDINAL photographs , as well as the audio and video recording of the critical event . The applicants made no reference as to the examination of the driver .

In the concluding remarks , Mr PERSON denied that there was any material evidence that the applicants had committed the crime imputed to them ; in particular , the video and audio material did not establish that they had received any money from the driver , nor had any marked bank notes been found in their possession . He further stated that :

“ ... we object to the use of the term ‘ protected ORG since it is not disputed that the ( applicants ) and ( the driver ) knew each other ... they saw each other and it is unreasonable to use that person as a protected witness . ”

Both applicants stated :

“ I fully adhere to the concluding remarks of my representative . I want to add that I ’m not guilty because I have not received any money ” .

On DATE the trial court rendered a judgment in which it found the applicants guilty and sentenced them to CARDINAL months’ imprisonment , suspended for DATE . It established that they had accepted the bribe from the driver , a police officer who had been following the public prosecutor ’s order to use special investigative techniques . They received MKD CARDINAL in exchange for not pressing charges , despite the fact that the relevant law provided for a fine or CARDINAL days’ imprisonment , coupled with a security measure , for such an offence . The audio evidence established that the driver had exceeded the speed limit and had offered DATE and the applicants had accepted – the money . In this connection , the court stated :

“ Following the instructions of the higher court , the ( trial ) court examined the driver with the pseudonym ORG as a protected witness . He confirmed that he had been stopped on DATE in question , since he had deliberately exceeded the speed limit ... [ the applicants ] had agreed to accept a bribe in the amount of MKD CARDINAL in exchange for not drawing up a report and pressing charges .

In this context , the statement of the protected witness and the audio material are totally consistent ... In the note [ of DATE ] , [ ORG ] submitted that the identity of the witness ORG was protected , i.e. that he was a protected witness . [ For this reason ] the court did not confront him with [ the applicants ] . ”

The applicants appealed against the judgment and maintained that there had been insufficient evidence that they had accepted the money . They argued that there had been no written warrant authorising the operation that had led to the proceedings against them ; that the bank notes had not been marked ; that they had not taken possession of any such bank notes ; that the audio material had not established that they had accepted the bribe ; and that the warning issued against the driver had been registered in the official records and had been prescribed for such offences . They further complained that their conviction had been based , to a decisive extent , on the driver ’s statement and the audio material , the credibility of which they had challenged . As to the driver , they complained that it had been unreasonable to use him as a protected witness since they had already met him . They further complained that :

“ The statement ( of the driver ) was taken in the absence of the accused and the defence ... the accused and the defence were not allowed to put questions to that person ; there was no confrontation between that person and the accused ” .

In a public hearing held on DATE in the presence of the applicants and their lawyers , ORG dismissed the appeal lodged by the applicants , finding no grounds to depart from the established facts and reasons given by the trial court . It found that the special investigating measures ( audio - visual recording and the use of a protected witness ) had been ordered by the public prosecutor in accordance with LAW ( see DATE and DATE below ) . Accordingly , the judgment could be based on that evidence and the driver ’s statement , as lawfully obtained evidence . The court further stated that :

“ Having regard to ORG judgment PERSON of DATE , at the re - trial , the trial court summoned , and at a hearing ( главен претрес ) it examined the witness ORG , who was driving the car at the relevant time ... This witness was considered a protected witness by the court . On the basis of an agreement reached with the accused and their representatives , [ the witness ] was examined in their absence . However , after his examination , the court provided the accused and their representatives with the opportunity to put questions through the court .

... For the offence committed ( by the driver ) , the accused neither drew up a report nor did they press charges against him , despite the fact that the offence was of a more serious nature ... they warned him orally , although a fine and a compulsory security measure – a driving ban – are prescribed for this offence .

The witness ORG provides an objective and detailed description of the events ... Indeed , the LAW bank note which the accused received from this witness had not been marked and secured as evidence , but the court undoubtedly established , on the basis of the statement of this witness , that he had offered DATE and ( the applicants ) had accepted – the money as a bribe . The statement of this witness is corroborated by the written transcript of the audio material ... so , the established facts are not put into question ... ”

This judgment was served on the applicants on DATE respectively .

Under section CARDINAL(CARDINAL)(CARDINAL ) of the LAW , as regards criminal offences subject to automatic prosecution by the ORG , the public prosecutor may order the use of a special investigative technique in pre - trial proceedings under the conditions and in the manner specified by law .

Section CARDINAL-b of the LAW provides that special investigative techniques may be ordered where there are reasonable grounds for suspecting that certain criminal offences have been committed by an organised group . Secret surveillance , audio - visual recordings , a simulated offer of a bribe and the use of undercover agents ( лица со прикриен идентитет ) are among the special investigative techniques permitted ( section CARDINAL-b(CARDINAL ) ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) ) .

Section CARDINAL-c provides that information , documents and objects obtained by means of special investigative measures may be used as evidence in criminal proceedings . The undercover agents can be examined as protected witnesses . Their identity is classified ( службена тајна ) .

Under section CARDINAL ) , the use of special investigative techniques at the pre - trial stage may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor , or by the public prosecutor in a reasoned written decision following a reasoned written request by ORG , but only in respect of a person whose identity is unknown .

Under section CARDINAL-e(CARDINAL ) of the LAW , evidence obtained through special investigative techniques can not be used at trial if the techniques were applied without an order by the investigating judge or the public prosecutor or contrary to the LAW .

Under section CARDINAL of the Act , the public prosecutor , investigating judge or trial judge must take measures to ensure the effective protection of witnesses if there is a risk that they may be threatened or that their life , health or physical integrity may be endangered . Their protection must be guaranteed by means of special arrangements for the examination of the witnesses and their participation in the proceedings . Protected witnesses are examined in the presence of the public prosecutor , the investigating judge or the trial judge , in a location which guarantees the protection of their identity , unless they agree to be examined using special streaming media , for which a court order is needed . An unsigned copy of the witness ’s statement is forwarded to the accused and his or her representative , who can put questions in writing through the court .

In accordance with section DATE ) , the court decided on the basis of facts and evidence admitted at the trial .

Under section CARDINAL(CARDINAL ) of the LAW , the trial court was bound to take all procedural actions and to discuss all disputed issues indicated in the judgment of the second - instance court .

Under section CARDINAL of the Act , special arrangements for the examination of a protected witness may involve concealment of his or her identity and face . If the arrangements concern the witness ’s personal information , he or she may produce evidence under a pseudonym ( псевдоним ) . Otherwise , the general rules for the examination of witnesses apply . A witness who is examined under a pseudonym may also have his or her face concealed ( прикривање на изгледот ) with the use of special streaming media , which distort one ’s voice and face . The protected witness must be placed in a special room that is physically separated from the courtroom in which the investigating or trial judge , as well as other persons attending the examination , are present .

NORP Under section CARDINAL(CARDINAL ) of the LAW , the judgment can not be based solely on evidence given by a protected witness and obtained by means of witness protection .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in DATE and prior to his arrest lived in GPE .

On DATE the applicant was arrested on suspicion of drug dealing as a result of an undercover police operation . On an unspecified date the ORG of LOC ( “ the ORG ” ) remanded him in custody . He remained in detention pending the investigation and trial .

On DATE ORG found the applicant and his co - defendant PERSON , also a NORP national , guilty as charged . The applicant was sentenced to DATE imprisonment .

On DATE ORG ( “ the ORG ” ) quashed his conviction on appeal and remitted the matter to ORG for fresh consideration . ORG noted that , in contravention of the rules of criminal procedure , the indictment had been prepared by a prosecutor who had been the spouse of CARDINAL of the police officers taking part in the undercover operation leading to the applicant ’s arrest and had testified as a prosecution witness . As regards the applicant ’s detention , the court ruled as follows :

“ Regard being had to the gravity of the charges against the defendants , their foreign nationality and illegal residence in GPE , [ the court ] does not consider it possible to lift the preventive measure pending trial applied and ... extends their detention . ”

On DATE ORG extended the applicant ’s pre - trial detention until DATE . On CARDINAL DATE ORG upheld the relevant court order on appeal , noting as follows :

“ When deciding on the preventive measure , the [ trial ] court legitimately referred to the gravity of the charges and the [ defendants’ ] characters ... It further legitimately indicated that there were no grounds for the GPE release . If at large [ the defendants ] , in view of the gravity of the charges , might abscond , continue criminal activities , put pressure on witnesses , or otherwise interfere with the administration of justice . ”

It appears that the applicant remained in custody pending consideration of the criminal charges against him .

On DATE ORG found him guilty of drug dealing and sentenced him to MONEY .

On DATE ORG upheld the conviction on appeal .

On DATE ORG granted the prosecutor ’s request for a supervisory review of the applicant ’s conviction , noting that the charges against him had not been classified in accordance with the law .

On DATE the Presidium of ORG quashed the appeal judgment of DATE by way of supervisory review and remitted the matter to the appellate court for fresh consideration .

On DATE ORG quashed the applicant ’s conviction of DATE and remitted the matter for a retrial . It further noted that the preventive measure applied in respect of him and his co - defendant should remain unchanged .

On an unspecified date ORG extended the applicant ’s detention until DATE .

On DATE it authorised his detention for a further period until DATE , noting as follows :

“ When deciding the issue of extending the [ defendants’ ] pre - trial detention and accepting the prosecutor ’s argument , [ the court ] considers that there are no grounds for changing the preventive measure . Regard being had to the gravity of the charges against [ the defendants ] , their foreign nationality and illegal residence in GPE , the court considers it impossible to lift the [ detention ] earlier applied and extends it ... ”

On DATE ORG returned the case file to the prosecutor to arrange for a translation of the indictment into the GPE mother tongue . As regards the GPE detention , the court reiterated verbatim its earlier reasoning of DATE , ordering that they be detained pending the return of the case file to the court . On DATE ORG upheld this decision on appeal .

On DATE the applicant received the translation of the indictment .

On an unspecified date ORG received the case file , and on DATE fixed the date for the hearing of the case for DATE . It authorised the applicant ’s detention for the period from CARDINAL DATE to DATE , reiterating the reasoning contained in the court orders of CARDINAL July and CARDINAL DATE . On DATE ORG upheld the relevant decision on appeal . It considered that the applicant ’s pre - trial detention had been extended in accordance with the his release pending trial . He and his lawyers had to attend the trial and were not present at the appeal hearing . The court appointed lawyer PERSON to represent him . The prosecutor was present and made submissions to the court .

On DATE ORG admitted lawyer PERSON . as the applicant ’s defender and adjourned the hearing to provide him with the time necessary to study the case file . The court further extended the applicant ’s detention until DATE . Its reasoning in that regard remained unchanged . It appears that the applicant did not appeal against the said court order .

On DATE ORG returned the case file to the prosecutor for the reasons indicated by ORG in the appeal judgment of DATE ( see paragraph CARDINAL above ) . The prosecutor was given DATE to bring the indictment in compliance with the applicable rules of criminal procedure . Lastly , the court noted , reiterating its earlier reasoning , that the applicant should remain in custody .

On DATE ORG adjourned the hearing of the applicant ’s appeal against the detention order of CARDINAL DATE as his lawyers failed to appear . As regards the pre - trial detention , the court noted as follows :

“ [ The appellate court ] considers it necessary to rule on the issue of the [ defendants’ , the fact that the appellate court will examine the issue of the GPE detention , and to ensure prompt consideration of the matter , [ the court ] considers it necessary to extend the [ defendants’ ] detention for DATE , until DATE . ”

On DATE ORG examined the applicant ’s appeal against the detention order of CARDINAL DATE . It upheld the findings of the lower court as regards the lawfulness and reasons underlying his detention . At the same time ORG , regard being had to the fact that the defendants had been detained for a long time , the gravity of the charges and their characters , considered it possible to release them on bail . The bail set for each of them was RUB CARDINAL . Lastly , the court ruled that , should they be unable to pay the bail , they would remain in custody until DATE .

According to the applicant , he was unable to pay the bail as he had insufficient funds .

On DATE ORG held a preliminary hearing in camera . After giving the applicant CARDINAL warnings for improper conduct , the judge had him removed from the courtroom . The hearing was then held in his absence . His lawyers were present and made submissions to the court . The court fixed the trial date for DATE . It further extended the applicant ’s pre - trial detention until DATE , noting as follows :

“ When deciding the issue of extending the [ defendants’ ] pre - trial detention and accepting the prosecutor ’s argument , [ the court ] considers that there are no grounds for changing the preventive measure . Regard being had to the gravity of the charges against [ the defendants ] , their foreign nationality , illegal residence in GPE and lack of permanent employment , the court considers it impossible to lift the [ detention ] applied and extends it ... . ”

On DATE ORG upheld the decision of DATE on appeal . The prosecutor was present and made submissions to the court . The applicant did not attend . He had to be present at the trial court examining the criminal case against him . The court considered the request filed by his lay defender PERSON . to adjourn the hearing in view of his involvement in another set of proceedings but dismissed it . It appointed lawyer PERSON to represent the applicant , noting as follows :

“ Regard being had to the [ applicant ’s ] failure to pay the bail in accordance with the appeal decision of DATE , the gravity of the charges infringing public health and morals that amounts to a serious violation of public policy in a society which ensures human rights guarantees and in which public health is of great value , the [ applicant ’s ] foreign nationality , illegal residence in GPE , the court at first instance has lawfully found that , pursuant to the applicable legislation , the preventive measure applied [ in respect of the applicant ] is not excessive . It is justified by society ’s response and the social consequences [ of the crime ] . Given that it is necessary to ensure the effective protection of society , the court considers a deprivation of liberty to be permitted . ”

On DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment . On DATE ORG upheld his conviction on appeal .

According to the Government , on CARDINAL DATE the prosecutor lodged an appeal against the court order of DATE and the appeal decision of DATE arguing that the applicant ’s detention from CARDINAL DATE to DATE had been unlawful . The Government did not inform the ORG about the outcome of the hearing of the matter .


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-b - Secure fulfilment of obligation prescribed by law)

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in Sundborn .

On DATE ORG ( Kronofogdemyndigheten ) in GPE issued a writ of execution ( beslut om utmätning ) attaching a mobile sawmill belonging to the applicant . It noted that the applicant ’s total enforceable tax debts amounted to SEK CARDINAL,CARDINAL ( roughly EUR CARDINAL ) and that the sawmill had an estimated value of SEK CARDINAL ( roughly EUR CARDINAL ) . The ORG decided to leave the sawmill in the applicant ’s possession but informed him that he was not allowed to sell or dispose of it or otherwise make use of it in a way that might negatively affect its value .

The applicant appealed against the decision to ORG ( tingsrätten ) of GPE and also requested ORG to stay the sale of the sawmill while the court considered the case . The request for the interim measure was granted on DATE .

On DATE ORG rejected the applicant ’s appeal and upheld the writ of execution . The interim measure was consequently also lifted .

Upon further appeal by the applicant , both ORG ( hovrätten ) and ORG ( ORG domstolen ) refused leave to appeal , the latter on DATE .

On DATE ORG contacted the applicant in order to plan the sale of the attached sawmill . In his reply DATE , the applicant stated that he had removed the sawmill from his property and hidden it . He also submitted a written statement specifying that he had removed and hidden the sawmill , alone when no one else was at home .

On CARDINAL DATE ORG visited the applicant ’s property and confirmed that the sawmill was no longer there . The ORG also handed the applicant a summons for questioning on CARDINAL DATE on its LOC , as well as an injunction in which he was ordered to provide the ORG with the necessary information to be able to recuperate the sawmill . The injunction also informed the applicant that , according to LAW , section DATE , of LAW ( ORG ) , he was duty - bound to give information about his assets and their location . It further informed him of the ORG ’s intention to ask ORG to detain him if he did not cooperate .

At the questioning , the applicant acknowledged that he knew that the sawmill was attached and that he was not allowed to dispose of it in any way . However , since he considered that the basis for the attachment was wrong , he had decided to hide it . He stated that he took full responsibility for his actions and that nobody but him had been involved or knew where the sawmill was . He refused to give any information about its whereabouts but admitted that he had driven some distance with it around mid - April CARDINAL . He further claimed that it could be only partly in his possession and that he was not sure that he could retrieve it if he wanted to . He stated that he had even considered setting fire to the sawmill . Meanwhile , the applicant ’s wife was also questioned . She informed ORG that she had no information about where the sawmill was hidden .

On DATE ORG requested ORG to detain the applicant because he had refused to cooperate and give the required information . It relied on LAW , section CARDINAL , and LAW , section DATE , of LAW . On DATE , ORG assigned a public defender for the applicant .

The applicant opposed the measure and claimed that it would be in violation of ORG CARDINAL and CARDINAL of the LAW to detain him and that no extraordinary reasons for such a measure existed .

On DATE , after having held an oral hearing , ORG rejected ORG request . It first considered that NORP legislation on this point did not contravene the said provisions in the LAW . The question was whether there were extraordinary reasons to detain the applicant . In this respect , the court noted that the writ of execution had gained legal force on DATE when ORG refused leave to appeal . Thus , the court held , only a short time had passed since the matter had been finally resolved . It further observed that ORG had not resorted to any other measures in order to convince the applicant to reveal the location of the property , such as imposing a conditional fine . Whilst recognising that the applicant so far had been reluctant to give any information about the location of the sawmill , the court found that it could not be ruled out that a less severe coercive measure would alter his attitude . Consequently , the court concluded that currently there did not exist such extraordinary reasons to detain the applicant .

ORG appealed to ORG , maintaining its claims and adding that , according to the preparatory works of LAW , it was only necessary that the debtor had received an injunction but refused to comply with it . It further submitted that having regard to the applicant ’s stance on the matter , the imposition of a conditional fine would most likely have no effect . Lastly , the ORG stated that it had reported the applicant to the police on the ground that he had committed a breach of an official order when he had removed and hidden the sawmill .

The applicant opposed the appeal , maintaining his claims and adding that he considered that , if he were detained , it would amount to imprisonment to obtain a confession . In his view , it would be clearly disproportionate to the aim pursued to detain him .

On DATE ORG quashed the lower court ’s decision and granted ORG request . It stated that a debtor had to give necessary information about his assets and failure to do so could result in the debtor being detained , if there were extraordinary reasons for detention . Moreover , it was not necessary to impose a fine initially . Having regard to the size of the debts , the value of the hidden property and the fact that the applicant had maintained his refusal to reveal its location , ORG found that there were extraordinary reasons to detain the applicant and that detention was proportionate to the aim pursued . In reaching its decision , the court found that the measure did not breach the LAW . Lastly , it noted that it should be informed as soon as the applicant had been detained in order to hold a hearing as to the continued detention .

The applicant was detained DATE . Consequently , on DATE , ORG held an oral hearing and decided to maintain its earlier decision . At the hearing , the applicant stated that the taxes and the attachment had been imposed on him wrongly and that as long as these errors had not been corrected he would not cooperate to bring back the sawmill . The court reiterated its reasons as stated in its earlier decision and added that the applicant ’s detention should be reviewed DATE and that he should be released immediately if he revealed the location of the property . Moreover , under no circumstances could the applicant be kept in detention for DATE .

The applicant appealed to ORG which , on DATE , refused leave to appeal .

On DATE ORG reviewed the applicant ’s detention and held a new hearing in the case as required by LAW , section CARDINAL , of LAW . ORG maintained that the applicant should be kept in detention since he still had not given any information about the location of the sawmill . It stated that it had not been able to undertake any investigative measures , since the applicant had stated that he had taken the sawmill far away from his property by car and its whereabouts thus were unknown to the ORG . The applicant , who requested his immediate release , maintained his refusal to give any information about the location of the sawmill and claimed , inter alia , that he suffered from high blood pressure and panic anxiety attacks , causing him difficulties sleeping . Moreover , he stated that he had recently been treated for prostate cancer and that he was not allowed to take his normal medication against his panic attacks since it contained narcotic substances . In its decision , ORG noted that the applicant maintained his refusal to reveal the whereabouts of the sawmill and found , having regard to the proportionality of the measure , that there were extraordinary reasons for the applicant ’s continued detention . Hence , ORG decided that he should remain in custody .

The applicant appealed to ORG which , on DATE , rejected the appeal . Upon further appeal , ORG dismissed the appeal since a new decision had already been taken by ORG at that time .

On DATE ORG again reviewed the detention and held a new hearing in the case . ORG maintained its earlier point of view and acknowledged that no investigative measure had been possible due to the applicant ’s continued refusal to cooperate . The applicant maintained his earlier position and added that he suffered from asthmatic symptoms due to the dry air in custody . Having regard to his age and health problems , he considered that it was clearly disproportionate to prolong his detention . ORG found that there were still extraordinary reasons for the applicant ’s continued detention and that it was not disproportionate to the aim pursued . It thus ordered that he should remain in custody .

NORP The applicant appealed to ORG which , on DATE , rejected the appeal . On CARDINAL DATE ORG refused leave to appeal .

On DATE ORG once again reviewed the detention and held a hearing in the case . The parties maintained their earlier standpoints . ORG found that continued detention of the applicant would be disproportionate to the measures he had taken . Hence , ORG concluded that there were no extraordinary reasons for the applicant ’s continued detention . As a consequence , ORG ordered his immediate release and the order was implemented DATE .

ORG appealed to ORG which , on DATE , rejected the appeal .

On DATE ORG dismissed ORG further appeal and consequently , on DATE , ORG struck the case out of its list of cases as the case was closed .

As concerns ORG police report concerning the applicant ’s alleged breach of an official order pursuant to LAW , LAW , of LAW ( ORG ) , the preliminary investigation was discontinued with reference to provisions on waiver of prosecution ( åtalsunderlåtelse ) on DATE .

On DATE ORG decided to revoke the writ of execution concerning the sawmill since it considered that no additional circumstances had emerged that could reveal its location . Furthermore , it was considered that there were no other measures which could produce results to that end .

On DATE the applicant submitted a claim for damages to the Chancellor of Justice ( NORP ) , pursuant to LAW and Other Coercive Measures ( NORP om ersättning vid frihetsberövande och andra tvångsåtgärder , CARDINAL:CARDINAL ) , in the amount of SEK CARDINAL,CARDINAL for the suffering he had endured during DATE he was deprived of his liberty . He further demanded to be reimbursed SEK CARDINAL,CARDINAL for costs which had been deducted from his pension during his time in detention .

On DATE the Chancellor of ORG rejected the claim . The Chancellor noted that the decision to detain the applicant had been taken by a court of law , in accordance with relevant legal provisions . Moreover , the examination of the case showed no basis for finding that the decision had been taken on erroneous grounds and therefore was incorrect .


CASE OF ALEKSANDRAVIČIUS AND OTHERS v. LITHUANIA

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

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicants were born in DATE , CARDINAL , CARDINAL , DATE and DATE respectively . Mr PERSON , Mr PERSON and PERSON Artem Novikov are currently detained in FAC . Mr ORG lives in PERSON and Mr PERSON is detained in ORG .

The first applicant was detained in FAC from DATE to DATE . The documents submitted to the ORG show that he was held in various different remand prison cells where most of the time he had CARDINAL QUANTITY of living space , except for the following periods :

- from TIME DATE to the morning of CARDINAL DATE he had QUANTITY of personal space ;

- on TIME DATE , the morning of DATE and the morning of CARDINAL DATE he had CARDINAL and QUANTITY of personal space .

In DATE the applicant instituted proceedings for damages . He argued that the conditions in which he had been held in FAC had been degrading : the cells had been overcrowded and the conditions unsanitary .

On DATE ORG established that the applicant had been held in overcrowded cells for DATE , given that for that duration he had been held in cells where he had had QUANTITY of personal space . Nonetheless , the court dismissed the applicant ’s complaint about unsanitary conditions in the prison as not actually proven . It noted that the applicant ’s complaints had been expressed in abstract terms and that he had not provided accurate information about the conditions in question . The court awarded him CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) in compensation for non - pecuniary damage on account of overcrowding .

The applicant appealed but on DATE ORG upheld the first - instance decision .

From DATE to CARDINAL DATE the second applicant was detained in FAC , except for the following periods when he was moved to GPE police station :

- from DATE to DATE ;

- from DATE to DATE ;

- from DATE to DATE ;

- from DATE to DATE .

The documents submitted to the ORG show that he was held in several different remand prison cells where he had between GPE and QUANTITY of personal space , except for DATE :

- the whole of DATE , TIME of DATE , TIME DATE , the morning of CARDINAL DATE , TIME of DATE , the whole of DATE , the morning of CARDINAL DATE , TIME of CARDINAL September CARDINAL , the morning of CARDINAL DATE , TIME of DATE , the TIME of CARDINAL DATE , TIME DATE , the morning of QUANTITY DATE , the morning of DATE , the morning of DATE , the evening of CARDINAL June DATE , the morning of DATE , TIME of DATE and TIME CARDINAL DATE . During those periods he had between MONEY and QUANTITY of personal space ;

- the morning of DATE , when he had QUANTITY of personal space .

In DATE the applicant instituted proceedings for damages . He argued that the conditions in which he had been held in FAC had been degrading : the cells had been overcrowded , had had rats and insects and mould on the walls . They had also been damp and his health had deteriorated .

On DATE ORG established that the applicant could only request compensation for the period from DATE because the applicant had missed the DATE time - limit to lodge a complaint for DATE . The court further held that the relevant period was DATE , and that the applicant had been held in conditions that satisfied the personal space requirement for DATE . Nonetheless , the applicant ’s complaint about unsanitary conditions was dismissed as unsubstantiated as he had not complained about them to the prison authorities . The court awarded him LTL CARDINAL,CARDINAL ( approximately ORG CARDINAL ) in compensation for non - pecuniary damage on account of overcrowding .

NORP The applicant and FAC appealed . On DATE ORG upheld the firstinstance decision .

From DATE to DATE the third applicant was detained in FAC , except for DATE to DATE . He complained about his conditions of detention from DATE to DATE .

The documents before the ORG show that he was held in several different remand prison cells where he had :

- DATE and QUANTITY of personal space from DATE to the TIME of DATE ; from TIME of DATE to CARDINAL DATE ; from TIME DATE to CARDINAL DATE ; from TIME DATE to DATE ; from the TIME of CARDINAL DATE to CARDINAL DATE ; from TIME DATE to CARDINAL DATE ; from TIME DATE to DATE ; on TIME of CARDINAL DATE and on DATE ; from TIME of DATE to CARDINAL DATE ; from TIME DATE to DATE ; on TIME DATE ; from TIME DATE to CARDINAL DATE ; from DATE to CARDINAL DATE ; from TIME of CARDINAL DATE to CARDINAL DATE ; from TIME of DATE to the morning of CARDINAL DATE ; on TIME of DATE ;

- between CARDINAL and QUANTITY of personal space from TIME DATE to the TIME of DATE ; from CARDINAL DATE to TIME DATE ; on TIME DATE ; on TIME ; on TIME CARDINAL DATE ; on TIME DATE ; on the TIME of CARDINAL DATE ; on TIME DATE ; on TIME DATE ; on TIME ; on TIME ; on DATE ; on TIME CARDINAL DATE ; on TIME CARDINAL DATE ; on TIME of DATE ;

- DATE and QUANTITY of personal space from CARDINAL DATE to the TIME of DATE ;

- between CARDINAL.CARDINAL and QUANTITY of personal space from CARDINAL DATE to the TIME of DATE .

In DATE the applicant instituted proceedings for damages . He argued that the conditions in which he had been held in FAC had been degrading : the cells had been overcrowded , his health had deteriorated and he had become bald .

On DATE ORG held that until DATE the statutory norm for personal space per prisoner per cell had been QUANTITY and that since DATE it had been QUANTITY . The court also held that the applicant had been held for DATE in conditions that had satisfied the statutory personal space requirement and awarded him LTL CARDINAL ( approximately EUR CARDINAL ) in compensation for non - pecuniary damage on account of overcrowding . The applicant ’s complaints about his health and baldness were dismissed as unsubstantiated as the applicant had not provided any evidence that he had ever complained to doctors or the prison authorities about those issues .

The applicant argued in an appeal that the compensation amount was too low and stated that he had asked the prison administration to take him to a doctor . FAC argued that the applicant ’s complaint was unfounded because the courts imposed sentences on people , it could not refuse to accept prisoners and thus it had no control over their number . On DATE ORG held that the applicant had not had enough cell space for DATE and increased his compensation to LTL CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . The court reiterated that the applicant ’s complaints about his health were unsubstantiated and that the applicant himself had not been able to prove that his health had deteriorated or that he had complained to a doctor .

The fourth applicant was detained in FAC from DATE to CARDINAL DATE , except for the following periods when he was in a prison hospital :

- from CARDINAL DATE to DATE ;

- from DATE to DATE ;

- from DATE to CARDINAL DATE ;

- from DATE to CARDINAL DATE ;

- from DATE until DATE ;

- from DATE to DATE ;

- from DATE to CARDINAL DATE .

The documents before the ORG show that he was held in several different cells in the remand prison where he had :

- between GPE and QUANTITY of personal space from TIME of CARDINAL DATE to the TIME of CARDINAL DATE ; from TIME DATE to CARDINAL DATE ; from TIME of DATE to CARDINAL DATE ; from CARDINAL DATE to the TIME of CARDINAL DATE ; on TIME of DATE ; on DATE ; on the TIME of DATE ; from CARDINAL DATE to CARDINAL DATE ; from DATE to the morning of CARDINAL DATE ; on TIME of CARDINAL DATE ; from TIME of CARDINAL DATE to DATE ; from TIME CARDINAL DATE to DATE ; from TIME of CARDINAL DATE to CARDINAL DATE ; from TIME of CARDINAL DATE to TIME DATE ; from TIME CARDINAL DATE to DATE ; from TIME DATE to CARDINAL DATE ; from TIME of CARDINAL DATE to DATE ; from TIME of DATE to QUANTITY DATE ; from TIME of DATE to CARDINAL DATE ; from TIME DATE to CARDINAL DATE ; on TIME of CARDINAL DATE ; on TIME DATE ; from TIME of CARDINAL DATE to DATE ; from DATE to CARDINAL DATE ; from TIME DATE to CARDINAL DATE ; from TIME of CARDINAL DATE to the TIME of CARDINAL DATE ; from TIME CARDINAL DATE to the TIME of CARDINAL DATE ;

- between CARDINAL.CARDINAL and QUANTITY of personal space from TIME of CARDINAL DATE to DATE ; on the morning of CARDINAL DATE ; from CARDINAL DATE to DATE , from TIME of CARDINAL DATE to TIME CARDINAL DATE ; on TIME of CARDINAL DATE ; on TIME of DATE ; on TIME of DATE ; from DATE to DATE ; on the evening of DATE ; from DATE to DATE ; on TIME of CARDINAL DATE ; on TIME of CARDINAL DATE ; from DATE to the TIME of DATE ; from TIME of DATE to CARDINAL DATE ; on TIME DATE ; from TIME of CARDINAL DATE to CARDINAL DATE ; from TIME CARDINAL DATE to CARDINAL DATE ; from TIME of DATE to CARDINAL DATE ; on TIME of CARDINAL DATE ; from TIME of DATE to CARDINAL DATE ; from TIME of CARDINAL DATE to CARDINAL DATE ; from TIME of CARDINAL DATE to DATE ; from CARDINAL DATE to the TIME of CARDINAL DATE ; on TIME CARDINAL DATE ; from TIME DATE to the morning of CARDINAL DATE ; on TIME DATE ; on the morning of CARDINAL DATE ; on TIME ; on TIME ; on TIME DATE ; on TIME DATE ; on the morning of CARDINAL DATE ; from DATE to CARDINAL DATE ; on TIME DATE ; from TIME of DATE to the morning of QUANTITY DATE ; from TIME of CARDINAL DATE to the TIME of CARDINAL DATE ;

- DATE QUANTITY of personal space on TIME DATE ; on TIME of DATE ; on TIME of CARDINAL DATE ; on TIME DATE ; on TIME DATE ; on TIME of CARDINAL DATE ; on TIME of DATE ; on TIME of CARDINAL DATE ; from DATE to CARDINAL DATE ; on TIME CARDINAL DATE ; on TIME DATE ; from the evening of CARDINAL September CARDINAL to the morning of CARDINAL DATE ; on TIME of DATE ; on the morning of CARDINAL DATE ; on TIME of DATE ; from DATE to the morning of CARDINAL DATE ; on TIME of CARDINAL DATE ; from CARDINAL DATE to CARDINAL DATE ; on CARDINAL DATE ; from TIME of CARDINAL DATE to the TIME of DATE ; on TIME CARDINAL DATE .

On an unspecified date the applicant instituted proceedings for damages . He argued that the conditions in which he had been held in FAC had been degrading : the cells had been overcrowded ; he had been held together with prisoners who smoked ; the toilets had not been separated from the rest of the cell ; and his health had deteriorated .

On DATE ORG held that the applicant ’s personal space had not corresponded to the statutory norms and awarded him LTL CARDINAL,CARDINAL ( approximately EUR CARDINAL ) in compensation for non - pecuniary damage on account of overcrowding . As regards his other complaints , the court held that there was no evidence that his health had deteriorated because of overcrowding and stated that his health condition , according to medical data , was hereditary . The domestic courts also held that the toilets had had a partition of QUANTITY and dismissed the applicant ’s complaints in this respect as unsubstantiated .

The applicant and FAC appealed ; however , ORG upheld the decision of the court of first instance on DATE .

In the application form , the fifth applicant complained about his conditions of detention in FAC from DATE until DATE . However , in his reply to the ORG ’s observations , he claimed that the period to be considered was from DATE to CARDINAL DATE . The applicant was not in prison DATE and TIME of CARDINAL DATE as he was in a prison hospital while from CARDINAL DATE to the TIME of DATE he was held in GPE police station .

It can be seen from the documents before the ORG that he was held in several different remand prison cells where he had :

- between GPE and QUANTITY of personal space from DATE to DATE ; from TIME of CARDINAL DATE to CARDINAL DATE ; from TIME of CARDINAL DATE to TIME of DATE ; from DATE to the morning of DATE ; from TIME of CARDINAL DATE to CARDINAL DATE ; from DATE to DATE ; from TIME of CARDINAL DATE to DATE ; from TIME DATE ;

- DATE square metres of personal space on the morning of CARDINAL DATE ; from TIME DATE to CARDINAL DATE ; from DATE to DATE ; from TIME of CARDINAL DATE to the TIME of DATE ; on TIME ; from TIME DATE to CARDINAL DATE ;

- QUANTITY of personal space on TIME DATE ;

- QUANTITY of personal space on TIME DATE .

On DATE the applicant instituted proceedings for damages for the period from CARDINAL DATE until DATE when he was in FAC . The applicant later further specified the period for which he was complaining as being from DATE . He argued that the conditions in which he had been held in the remand prison had been degrading : the cells had been overcrowded ; there had been rats and insects ; and his sight had deteriorated owing to insufficient lighting . The court applied the DATE period of limitation and found that the relevant period to be considered was from DATE to DATE . The court held that the applicant had been held in overcrowded cells for DATE , although the period was DATE , and awarded him LTL CARDINAL ( approximately EUR CARDINAL ) in compensation for non - pecuniary damage . The court held that the applicant had failed to substantiate his other complaints with evidence .

In an appeal , the applicant also stated that the cells had been damp and the beds uncomfortable . FAC and ORG argued that the applicant had failed to substantiate his complaints . On DATE ORG , without examining the additional complaints , held that the applicant had been held in overcrowded cells for a non - consecutive period of DATE and DATE . It increased the award for non - pecuniary damage to LTL CARDINAL,CARDINAL ( approximately EUR CARDINAL ) .