No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - After conviction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The applicant was born in DATE and is currently detained in ORG .

The applicant has previous convictions for rape dating from DATE and for indecent assault combined with causing bodily harm by dangerous means dating from DATE .

On DATE the ORG convicted the applicant of rape combined with the infliction of bodily injury . The judge incorporated a prison term arising from a previous conviction and sentenced him to a total of DATE and CARDINAL months’ imprisonment . Simultaneously , the court ordered the applicant ’s placement in a psychiatric hospital pursuant to LAW ( see paragraph CARDINAL below ) . It held that the applicant was suffering from a disturbance in his sexual preference taking the form of sadism and found that the commission of further crimes was to be expected . The verdict of ORG was based mainly on the conclusions of a psychiatric expert opinion but also took into account the applicant ’s previous conviction for indecent assault in DATE . It also observed that the applicant had tried to subjugate several prostitutes whom he had been seeing in DATE . ORG found that this indicated an evolution in his behaviour . It noted that the applicant had refused psychiatric therapy so far and shared the expert ’s opinion that the applicant would not be able to resist his urge to humiliate and abuse women in order to satisfy his sexual drive . ORG concluded that similar crimes were to be expected and the applicant therefore represented a danger to the public .

The applicant was arrested on DATE and placed in ORG .

The applicant ’s detention in psychiatric hospitals has been reviewed at regular intervals ( compare Articles CARDINALd and CARDINAL of LAW , see paragraphs DATE and DATE , below ) and has been extended DATE . In the course of the respective proceedings , the courts have requested DATE forensicpsychiatric expert opinions on the necessity of his detention in hospital . All expert opinions concluded that the applicant was likely to reoffend .

On DATE ORG delivered an initial expert opinion , affirming the diagnosis of antisocial behaviour as an adult and abuse of alcohol . However , the expert opinion did not diagnose sexual sadism . Referring to the Diagnostic and Statistical Manual of Mental Disorders ‒ which is published by ORG and offers a common language and standard criteria for the classification of mental disorders ‒ it found that the necessary criteria were not met . It concluded that this diagnosis seemed rather unlikely but could not be absolutely excluded without an extensive and credible sexual anamnesis .

On DATE the applicant was transferred to ORG .

On DATE the applicant was examined by an external psychological expert who criticised in detail the diagnosis of sexual sadism during the trial , in particular the lack of information about the applicant ’s inner experiences during the onset of the disorder , its further development , and the failure to evaluate his previous offences . The expert concluded that it remained doubtful whether a diagnosis of sexual sadism could be made ( “ Es bleibt also weiterhin fraglich , inwieweit ein sexueller PERSON vorliegt ” ) .

On DATE ORG delivered a further expert opinion . Although it mentioned the presumptive diagnosis of sexual sadism , it found that this presumption was not tenable in view of the history and the personality structure of the applicant . Even assuming that the applicant might have a sadistic sexual disposition , he experienced this without suffering and had no desire to change . According to the verdict of the trial court , the applicant had probably fulfilled his sexual inclinations with prostitutes in order to avoid being charged with an offence . Neither the files nor his statements revealed the development of an addiction or of a pressing perverted imagination or of pathologic impulsiveness . There was no call for therapy as the applicant neither suffered from his behaviour nor desired to change it . The clinic therefore concluded that the applicant ’s committal to hospital had been erroneous .

On DATE , on DATE and on CARDINAL DATE similar forensic psychiatric expert opinions were delivered by ORG . Although all of them also mentioned the presumptive diagnosis of sexual sadism , they confirmed the previous findings . All the expert opinions concluded that there were no indications for the diagnosis of sexual sadism apart from the facts contained in the verdict of the trial court . In each expert opinion the applicant was described as a classic instance of an erroneous hospital treatment order .

On DATE the applicant refused to be examined by an external psychiatric expert .

On DATE the applicant was transferred to the ORG .

On DATE the GPE am ORG allowed the re - opening of the criminal proceedings which had been terminated by the judgment of ORG dated DATE .

In DATE ORG appointed a new external psychiatric expert . The expert concluded that the applicant was suffering from sexual sadism , subject to the reservation that he had not examined the applicant in person but had based his evaluation on the medical files only . ORG subsequently dismissed the request to reopen the criminal proceedings . The applicant ’s appeal against this dismissal was dismissed .

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

On DATE ORG , where the applicant was detained , delivered an expert opinion on the necessity of the applicant ’s further detention in hospital . It made the diagnosis of a dissocial personality disorder , alcohol abuse and a presumptive diagnosis of sexual sadism . Although it found a high risk that the applicant would reoffend , it confirmed the prior assessment that the applicant represented a classic instance of an erroneous hospital treatment order . This conclusion was drawn from the fact that the applicant ’s behaviour during treatment never gave any grounds for diagnosing a mental disorder such as would have been expected from a person suffering from a psychiatric disorder .

On DATE the ORG asked the applicant to inform the court whether he agreed to being examined by the external expert PERSON .

On CARDINAL DATE the applicant wrote to ORG and refused a medical examination .

On DATE ORG heard the applicant and his counsel in person as well as a psychological expert from ORG .

On DATE ORG declined to terminate the applicant ’s placement in hospital and refused to release him on probation as the requirements of LAW and CARDINAL of LAW were not met ( see paragraph DATE , below ) . It explained that detention in a psychiatric hospital could be terminated on the grounds of an erroneous treatment order only if it was established with certainty that the applicant was not suffering from a mental illness warranting his detention under LAW owing to a diminished criminal responsibility from the very beginning . In this context ORG observed that neither the statement by the psychological expert at the hearing nor the current and prior expert opinions had excluded the possibility that the applicant was suffering from sexual sadism , although this diagnosis had been found to be rather unlikely ( see paragraphs CARDINAL , above ) . Furthermore , the court took into account that the applicant had refused to provide credible and full information about his sexual history and had thus rendered a certain diagnosis impossible . It therefore held that a committal to hospital by mistake had not been established beyond doubt . For this reason alone , therefore , the conditions for application of LAW were not met . Lastly , ORG noted , but explicitly without basing its decision on this fact , that the expert opinion which had been delivered in the course of the re - opening proceedings of the criminal trial had confirmed the diagnosis of sadism .

In conclusion , ORG found that the applicant could not be released on probation as he had refused investigation of his problems relating to sexuality and violence . The evolution of the applicant ’s detention and his lack of awareness regarding his crimes rendered it very probable that he would re - offend .

On DATE the GPE am ORG upheld the decision of ORG . It observed that , for exceptional reasons , an examination of the applicant by an external psychiatric expert was not necessary . Such an expert report would have to be based on the files only , since the applicant had announced his refusal of any examination . Under these circumstances ORG found that no new conclusions could be expected from such an external expert opinion . Moreover , it found that the applicant ’s condition and dangerousness had not changed since his last examination as he had refused to undergo any therapy . ORG further rejected the applicant ’s allegation that ORG had reproached him for failing to undergo therapy , while the hospital considered him to be an erroneous admission . It held that in any event the root cause of the applicant ’s serious sexual crimes should be reappraised through therapy . In its view that would have been a requirement even if the applicant had been sentenced to imprisonment . The applicant himself had to bear the consequences of his refusal to participate in any therapy as the hospital offered therapy in order to reappraise the causes of crime even for patients who had been placed in hospital erroneously .

On DATE ORG ( file no . CARDINAL BvR CARDINAL/CARDINAL ) refused to admit the applicant ’s constitutional complaint for its consideration without giving any further reasons .

On DATE ORG decided not to suspend the order for the applicant ’s placement in a psychiatric hospital and not to grant probation after obtaining an external expert opinion dated CARDINAL DATE and having heard the expert and the applicant ’s counsel . The expert , who had not examined the applicant in person due to his refusal to permit such examination , found that the applicant was suffering from a disturbance of his sexual preference in the form of sadism and that the commission of further crimes was to be expected . The applicant ’s appeal in this respect was dismissed by ORG . The proceedings before ORG are still pending .

On DATE ORG again decided not to suspend the order for the applicant ’s placement in a psychiatric hospital and not to grant probation after obtaining a written opinion from the ORG clinic in which the applicant has been detained and after hearing the applicant . The applicant ’s appeal in this respect was dismissed by ORG .


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

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


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

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

In DATE he obtained a NORP passport .

On DATE ORG , GPE , ordered to arrest and bring the applicant to the court in order to determine the preventive measure during the investigation of his alleged robbery . The applicant ’s name was put on the international list of wanted persons .

On DATE the applicant was arrested in GPE . As the applicant was a NORP national , he was released .

On DATE the NORP authorities sought the applicant ’s extradition from GPE in relation to the criminal proceedings against him .

On DATE the Russian ORG concluded that the applicant had fraudulently obtained his NORP passport by falsifying a number of documents . They ordered to seize his passport and put his name on the federal wanted list . The applicant ’s subsequent attempts to challenge ORG decision on his NORP passport were unsuccessful .

On DATE the applicant was arrested . On DATE a prosecutor authorised his detention considering that the decision of CARDINAL DATE of ORG had authorised the applicant ’s “ placement into custody ” , as mentioned in LAW § CARDINAL of LAW .

On DATE a district prosecutor decided that the applicant should be “ placed in custody ” considering that the decision of ORG of Dnepropetrovsk of DATE authorised “ placement into custody ” , as required under LAW of LAW ( “ the CCrP ” ) .

On several occasions the applicant unsuccessfully complained about his detention to the prosecuting authorities . On DATE ORG of GPE dismissed the applicant ’s complaint considering that his arrest and detention in relation to the NORP extradition request had been and remained lawful . On DATE ORG upheld this decision of DATE concluding that “ matters relating to lawfulness and reasons for detention should be raised under another procedure prescribed by law ” .

On DATE ORG granted the extradition request . On DATE ORG confirmed the decision of DATE . On DATE ORG upheld the judgment of DATE on appeal .

On DATE the applicant was transferred to the NORP authorities in the town of GPE . On DATE he was transferred to the town of GPE . On DATE a NORP court refused to order the applicant ’s detention pending the investigation . The applicant was released .


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

The applicants were born in DATE , DATE and DATE respectively and live in ORG , GPE . The first and second applicants are husband and wife . The third applicant is their son .

According to the first applicant , on DATE , at TIME , a police patrol car approached his car on a dark village road . A police officer , using a loudspeaker , ordered the first applicant to pull over . The first applicant replied that he would stop at the nearest road police post . The officer repeated his order , noting that he needed to borrow gasoline for the police car . The first applicant kept driving . Near Svetlograd the police officers blocked the road . When the first applicant stopped the car , CARDINAL of the CARDINAL policemen pulled him out of the car and hit him in the face . The police officers threw him against the hood of his car , kicked him in the shins and hit him with a butt of a machine gun . The first applicant fell down and fainted . After he regained consciousness and stood up , the police officers claimed that he was drunk and told him to take a breath test which showed that the first applicant was sober . The police officers checked his documents , searched his car and left . The first applicant got into his car and drove away in the same direction . Having driven QUANTITY , he saw that the police car had stopped and that the police officers had gathered around it . The first applicant approached the officers . The officer in charge identified himself as PERSON . and apologised for the excessive force his subordinates had used towards the first applicant .

The first applicant arrived home at TIME on DATE . On DATE the first and third applicants filed a complaint about the incident with the local police station .

At TIME on DATE the first applicant visited the second applicant who underwent a medical treatment in hospital . According to the second applicant , her husband told her about the altercation with the police . He also had visible bruising on his face . At TIME the first applicant underwent a medical examination at the same hospital . Having been diagnosed with multiple injuries , he was admitted for in - patient treatment . An extract from a medical record drawn up in the hospital indicated that the first applicant had injuries on the right cheek , the left shin and the lower back and the swelling of soft tissues .

On DATE the first applicant was admitted to ORG where he was diagnosed with “ a multisystem trauma ; closed craniocerebral injury ; a light brain contusion ; an injury of the soft tissues of the right temporal region ; a closed uncomplicated stable vertebra medullispinal injury , a compression fracture of the ORG . VII vertebra ; an intramuscular haematoma of the right side of the lumbar region ; a neurologic form of the lumbar plexitis . ” DATE he was released from hospital on conditions of bed rest and subsequent supervision by a neurologist and orthopaedist .

On DATE investigator PERSON questioned the police officers who denied the first applicant ’s allegations . They claimed that they had ordered the first applicant to pull over because they had suspected that he had been driving under the influence of alcohol . The first applicant had refused to comply and had verbally insulted them demonstrating obscene hand gestures . After having searched the first applicant and his car , they had let him go .

On DATE the investigator ordered a forensic medical examination of the first applicant . Having examined the first applicant , the forensic expert documented multiple injuries on the right cheek and the lumbar region , multiple bruises all over the body and swelling of the soft tissues . The expert considered that those injuries could have resulted from the impact of solid blunt objects or from DATE .

On DATE the investigator refused to institute criminal proceedings against the police officers . It appears that his decision was quashed on DATE .

NORP On DATE the first applicant underwent another forensic medical examination . The expert documented the first applicant ’s injuries considering that they might have resulted from the impact of solid blunt objects .

According to the first applicant , on DATE an investigator of the district prosecutor ’s office refused to institute criminal proceedings against the police officers . On DATE the district prosecutor dismissed the first applicant ’s complaint against the investigator ’s decision . DATE , ORG of the Stavropol Region quashed the prosecutor ’s decision and authorised a new round of inquiry .

On DATE the police issued a report on the inquiry conducted in response to the first applicant ’s complaint . Having examined the forensic medical documents and the statements made by the police officers , the first applicant and the witnesses , the police investigator concluded that the first applicant might have sustained injuries as a result of the force used by the police officers in response to his unlawful actions .

On DATE investigator PERSON ordered a new forensic medical examination of the first applicant in order to reconcile inconsistencies in the experts’ findings .

It appears that the first applicant ’s complaint about the police brutality was dismissed by the authorities on another CARDINAL occasions . Each time a superior prosecutor or a court quashed those decisions considering the investigator ’s findings incomplete and unsubstantiated and ordering further inquiry into the first applicant ’s allegations .

On DATE the district prosecutor opened a criminal investigation into the first applicant ’s allegations of ill - treatment by unidentified police officers .

On DATE the investigator PERSON stayed the criminal proceedings , holding that it was impossible to establish the alleged perpetrators who had assaulted the first applicant .

On DATE the first deputy of the regional prosecutor quashed decision of DATE noting that the investigation had not been completed and reopened the proceedings .

On DATE the investigator concluded that there was no evidence showing that the first applicant ’s injuries had been caused by the police officers and that he was unable to establish the real perpetrator . The first applicant appealed .

On DATE the district prosecutor partly accepted the first applicant ’s complaint and resumed the investigation . At the same time the prosecutor endorsed the investigator ’s reasoning that there was no evidence showing that the offence had been committed by the police officers . DATE the proceedings were again stayed because the perpetrator of the offence remained unknown .

On DATE investigator NORP again discontinued the criminal investigation . The investigator established that , when searching the first applicant and his car , CARDINAL of the police officers had punched him on the right cheek and hit him in the back twice with a blunt solid object . The investigator also accepted that , as of the TIME of DATE , the first applicant had bruises on the right cheek , the back and the left shin . He further noted that the forensic medical experts had not ruled out a possibility that the first applicant might have sustained those injuries as a result of the altercation with the police , as alleged by him . The investigator dismissed the first applicant ’s allegations referring to his prior criminal record . He also noted that a number of the first applicant ’s neighbours had not confirmed that the latter had had any injuries on him on DATE . As regards the statements made to the contrary by the other neighbours , the investigator found them to be unsubstantiated . Lastly , the investigator took into account that all the police officers denied the first applicant ’s accusations . However , it was impossible for the investigator to establish the alleged perpetrator for lack of relevant evidence .

It appears that the decision of DATE was quashed and the case was re - opened .

On DATE investigator NORP discontinued the criminal investigation reproducing verbatim his earlier decision of DATE . He also considered that the first applicant had willfully made false accusations against the police officers and should be held liable for his actions . The investigator forwarded the relevant material to the prosecutor ’s office .

On DATE the deputy head of the supervision unit of the ORG committee considered the decision of CARDINAL DATE unlawful and unsubstantiated , quashed it and remitted the matter for further investigation . He noted , inter alia , that the investigator had failed ( CARDINAL ) to establish what each of the police officers had done once they had pulled over the first applicant ’s car ; ( CARDINAL ) to check whether any of the police officers had had a machine gun as claimed by the first applicant ; and ( CARDINAL ) to establish the reasons why the witnesses who had initially claimed that they had seen the police officers beating the first applicant had revoked their statements .

On DATE the senior investigator with the district investigative committee dismissed the first applicant ’s accusations against the police officers duplicating the findings summed up in the earlier decisions on the matter . Nevertheless , he allowed that the first applicant ’s injuries could have resulted from the beatings and that a criminal investigation should be opened on charges of battery . He transmitted the materials to the head of the district investigative committee . The parties did not inform about the outcome of the proceedings .

On DATE , at TIME , the applicants , suspecting that their neighbour had committed a number of thefts and intended to steal their property , beat him up , broke into his car , took the documents for the car and refused to return them until the arrival of a police patrol car .

On DATE the ORG found the applicants guilty of vigilantism and sentenced each of them to DATE imprisonment . The sentence was suspended on CARDINAL months’ probation . On DATE ORG upheld the applicants’ conviction on appeal .


CASE OF SAKİNE EPÖZDEMİR AND OTHERS v. TURKEY

No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)

Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants were born in DATE , DATE and DATE , respectively , and live in GPE . The first applicant is the wife and the second and third applicants are the sons of Mr PERSON .

The facts of the case , as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows .

The deceased was a lawyer and the chairman of the ORG provincial branch of a pro - NORP political party , ORG ( “ DEP ” ) .

The applicants submitted that DATE , DEP party buildings were bombed and CARDINAL of its members and administrators were killed . The applicants also alleged that during a meeting with political party representatives , General PERSON , who was the commander of ORG , had threatened their relative , PERSON , and CARDINAL of his colleagues , the chairman of ORG ’s NORP provincial branch , Mr PERSON . The General had told the CARDINAL men that “ they would meet their deaths very soon ” . Subsequently , Mr PERSON ’s son had been abducted and killed .

On TIME left his house to go to his office , which was nearby . At TIME the same day Mr PERSON telephoned his wife , the first applicant , and told her that he was leaving his office to come home . When he failed to arrive the family became concerned and contacted the authorities .

At TIME DATE the first applicant went to the police station in GPE , where she asked the police officers to find her husband . She told the police officers that when her husband had failed to come home the previous evening she had telephoned the local prosecutor and asked him whether her husband had been arrested . After the prosecutor had told her that her husband had not been arrested , she had informed members of her family about her husband ’s disappearance , and then waited up TIME .

Unbeknown to the first applicant , TIME before she went to the police station the body of her husband had been found by soldiers in the vicinity of the nearby town of Güroymak , in a ditch at the side of a road which connected the town of ORG to the city of PERSON . He was blindfolded and there was a gunshot wound on his face . The police officers who subsequently arrived at the scene informed the soldiers that it could be the body of PERSON , whose disappearance had been reported to them by his family .

NORP The local prosecutor arrived at the scene at TIME on DATE and gave instructions for the deceased ’s body to be taken to the hospital in PERSON , where it was formally identified by Mr PERSON ’s brother , PERSON , who also informed the prosecutor that after his brother had failed to come home the previous evening the family had telephoned the local police at TIME because they feared that he might have been abducted . He added that his deceased brother had been a prominent figure in the town of GPE and that that had been the reason for the family ’s suspicions that he might have been abducted .

On DATE Mr Epözdemir ’s body was examined by CARDINAL doctors , who noted that there was a bullet entry hole on the face and a corresponding exit hole on the back of the head . The doctors also noted the existence of widespread injuries on many parts of the face and the body which , according to the doctors , had been caused by physical trauma . The doctors , who established the cause of death as cerebrovascular haemorrhagic shock caused by the gunshot wound , did not consider it necessary to carry out a full autopsy .

On DATE the ORG prosecutor opened an investigation file into the killing and informed ORG .

On DATE the ORG police headquarters sent a letter to the governor ’s office in the town of Güroymak , in whose administrative jurisdiction the body had been found , and asked the governor whether the applicants’ relative had been in FAC DATE and whether they had any information about anyone in Güroymak who might have harboured hostile feelings towards Mr PERSON .

On DATE the second applicant asked the ORG prosecutor whether there had been an outstanding arrest warrant in respect of his father . On DATE the prosecutor informed the second applicant that no such warrant had been issued .

On DATE the ORG prosecutor decided that he did not have the requisite jurisdiction ratione materiae to investigate the case and forwarded the investigation file to the prosecutor ’s office at ORG , which did have jurisdiction to investigate such offences .

On DATE the prosecutor at ORG sent a letter to the ORG prosecutor and asked him to resume his investigation into the killing and to inform him DATE about developments .

On DATE the applicants sent letters to the offices of the PERSON and ORG prosecutors and asked to be provided with information regarding the steps taken in the investigation over the course of DATE .

On DATE the PERSON prosecutor ’s office decided that it had no jurisdiction ratione loci to investigate the incident and forwarded the ORG letter ( mentioned in the preceding paragraph ) to the office of the prosecutor in ORG . On DATE the ORG prosecutor decided that his office did not have jurisdiction ratione loci either and sent the letter to the prosecutor ’s office in Güroymak . On DATE the ORG prosecutor took a decision of non - jurisdiction ratione materiae and sent the letter to the prosecutor ’s office at ORG .

On DATE the prosecutor at ORG replied to the ORG letter of DATE and informed them that the investigation was still continuing . On DATE the prosecutor also issued a standing search order and asked the Güroymak prosecutor to continue to search for the perpetrators and to inform his office DATE about developments .

On CARDINAL DATE the Güroymak prosecutor instructed the local gendarmerie to search for the perpetrators until DATE ( the date of the expiry of the time - limit prescribed by the statute of limitations ) . On DATE and DATE a number of gendarmes visited the place where the body had been found in DATE and noted that there was no evidence there to help solve the killing .

In the meantime , on DATE the applicants brought compensation proceedings against ORG . In their petition the applicants argued that the perpetrators of the killing had not been found , despite the fact that DATE had elapsed since the incident . They submitted that their relative had been a well - liked person in ORG and that he had never had any problems with anyone . The applicants argued that GPE were responsible for protecting their ORG lives and that in the event that they failed to do so , they had a duty to find and punish the perpetrators of any resultant unlawful death ; otherwise they themselves should be held responsible for such loss of life . The applicants also submitted that , because of the failure to find and punish the perpetrators of the killing of PERSON , they had suffered immeasurable pain and stress and the ORG had thus an obligation to compensate them for the damage that they had sustained . They argued that the ORG ’s liability arose from its failure to protect the deceased ’s life . In any event , even if no such failure could be said to have occurred , they further argued that the ORG nevertheless had an “ absolute liability ” to compensate them .

On DATE the NORP police headquarters informed ORG , in response to an apparent query from the latter , that the applicants’ relative , PERSON , had never requested protection from the authorities .

On DATE ORG decided to award compensation to the applicants , in accordance with LAW ( see paragraphs CARDINAL below ) . It held that when carrying out their duties the public authorities had an obligation to take the necessary measures and to show due diligence in doing so . In the present case the public authorities had failed to comply with that obligation .

The Ministry of the ORG appealed , arguing that it had not failed in that obligation because the reason for the killing and the identity of its perpetrators had not yet been established .

The applicants did not submit any observations in reply to those of ORG .

In its decision of DATE ORG quashed the decision of ORG because it considered that , given that the reason for the killing had not been established and the perpetrators had not been identified , no causal link could be said to exist between the damage caused by the killing and any actions on the part of the public authorities . It added that for the public authorities to be said to have failed in their obligation , it was necessary to establish that they had either not performed their duties at all , or had failed to perform them in a timely manner , or had performed them in an unsatisfactory fashion . ORG further held that the lack of the above - mentioned causal link also prevented the courts from awarding compensation to the family on the basis of the public authorities’ “ absolute liability ” because the sole fact that the deceased had been a “ member of society ” was not sufficient . For it to be able to award compensation on the basis of the “ social risk doctrine ” it was a precondition for the damage to have arisen in a setting within which public servants were carrying out their duties .

On CARDINAL DATE ORG re - examined the case in the light of ORG decision and decided to reject the applicants’ claim for compensation . In reaching its conclusion , the administrative court noted that the investigation into the killing was still ongoing and , in any event , the deceased had never sought protection from the ORG . It thus held that the public authorities had not acted in breach of their duties . It further held that , as the conditions of the “ social risk doctrine ” had not been satisfied , it was not possible to award compensation to the family on the basis of the ORG ’s “ absolute liability ” .

The applicants lodged an appeal with ORG against the decision and argued that a citizen need not officially seek protection from the authorities in order to trigger the ORG ’s obligation to protect such a citizen ’s life . To argue otherwise would be at odds with the LAW and the international treaties to which GPE was a party . The applicants also submitted that at the time of the killing , a state of emergency had been declared in their part of the country ; this had created a climate that was conducive to the perpetration of such crimes . The fact that DATE after the killing the perpetrators had still not been identified was an indication that the public authorities had failed in their duties . The applicants maintained that the authorities had failed to take the necessary steps to prevent the attack on their relative and to find the perpetrators . ORG was therefore responsible for the pecuniary and non - pecuniary damage arising from the failures on its part .

The appeal lodged by the applicants was rejected by ORG on DATE . A request made by the applicants for ORG decision to be rectified was also rejected , on DATE . The final decision was served on the applicants on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek

The applicant was born in DATE and lives in GPE .

On DATE she was hit by a car while crossing the street . The driver left the scene of the accident and took the applicant to hospital , where she was diagnosed with a fractured spine . She underwent surgery DATE and was released from hospital on DATE .

NORP The police opened an investigation to clarify the circumstances of the accident .

On DATE the police took a statement from the applicant , in which she complained that the driver had caused her bodily harm . She also requested MONEY ( USD ) from him in civil damages .

On DATE the police officer in charge of the investigation ordered a technical expert report .

On DATE an eyewitness was interviewed by the police .

On DATE a forensic medical report was attached to the investigation file . It stated that the applicant had suffered injuries which required DATE of medical care .

According to reports drafted by the investigating police officers , on DATE and DATE the applicant failed to attend the police station to take note of the objectives set for the expert report . On DATE the applicant went to the police station , where she submitted additional questions to be answered by the expert .

On DATE the police requested the assistance of an expert to prepare the technical expert report in the case .

On DATE the expert examined the scene of the accident in the presence of the driver and the applicant . The driver declared that he agreed with the expert ’s findings .

The technical expert report was finalised on DATE . It stated that the applicant was to blame for the accident because she had crossed the street in an unmarked place without paying attention . The driver , who had been turning his vehicle at the time , had not breached any traffic regulations . The expert appointed by the driver agreed with the report , while the expert appointed by the applicant drafted a dissenting opinion concluding that the fault lay entirely with the driver , who had turned his car without paying attention .

The applicant took note of the expert opinions on DATE . On DATE she submitted objections , to which she received a reply on DATE .

On DATE ORG attached to ORG decided not to prosecute the driver , since the fault of the accident lay entirely with the applicant . The applicant lodged a complaint against that decision , but it was rejected as ill - founded by a hierarchically superior prosecutor on DATE .

A complaint by the applicant against the CARDINAL decisions was declared inadmissible by ORG on DATE . She lodged an appeal on points of law ( recurs ) against that judgment . On DATE her appeal was allowed by ORG , which decided to send the case back to the prosecutor for a more thorough investigation since numerous facts had not been clarified .

On DATE the applicant made enquiries with the prosecutor ’s office about the status of the investigation .

On DATE the same eyewitness was interviewed again .

A new expert report was requested by the prosecutor on DATE , and on DATE the applicant informed the authorities that she would need additional time , until DATE , to decide whether to instruct a counter expert on her behalf .

On DATE a first written statement was taken from the driver .

In statements given to the police on DATE and DATE , the applicant mentioned that a new expert report would not be necessary in the case .

According to CARDINAL reports drafted DATE and DATE by the police officer in charge of the investigation , the applicant could not be contacted , or had failed to come to the police station to give the name of her counter expert .

On DATE , holding that a new expert report was not necessary , the prosecutor decided again not to prosecute the driver since the fault for the accident lay entirely with the applicant . The decision was upheld by a hierarchically superior prosecutor on CARDINAL DATE .

The applicant ’s complaint against the ORG decisions was allowed by ORG on DATE . The court held that the investigative authorities had failed to follow the instructions given in the previous judgment of CARDINAL DATE . The judgment became final on DATE when an appeal on points of law by the prosecutor was dismissed by ORG .

On DATE ORG attached to ORG noted that the limitation period for the crime under investigation had expired on DATE and decided to close the case .

The applicant appealed against that decision before the courts . She claimed QUANTITY ( ORG ) in respect of non - pecuniary damage from the driver and ORG . She considered that the prosecutor was liable for the excessive delays in the investigation which had triggered the expiry of the limitation period for the crime committed against her .

On DATE ORG rejected the applicant ’s claim . The court held that because the limitation period for criminal responsibility in the case had expired it could not rule on the applicant ’s claim for compensation . It further held that the applicant could bring such a claim before the civil courts . The judgment became final on CARDINAL DATE when an appeal by the applicant was dismissed by ORG .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (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)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of their pre - trial detention . In applications nos . CARDINAL and DATE , the applicants also raised other complaints under the provisions of the FAC .


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

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano;Ksenija Turković

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

At the material time he had been a correspondent with an NORP newspaper in GPE . He had also been working voluntarily for a bookshop specialising in books on NORP .

On DATE he appeared in a television documentary broadcast in the framework of the programme Son çare ( “ FAC ” ) , hosted by PERSON .

During the programme the hostess introduced the documentary by pointing out that it concerned covert activities conducted in GPE by “ foreign pedlars of religion ” ( yabancı din tüccarları ) .

The ensuing documentary was along the following lines :

Over footage of FAC and then NORP religious ceremonies , a voice stated that everyone , whether a member of the NORP majority or a religious minority , had the right to belong to the religion of his or her own choosing and the freedom to practise that religion . According to the voice - over , it was strange that some proselytising activities were being carried out in a covert manner , despite the freedom of conscience and religion .

Against a background of images of a dhikr ceremony performed by a NORP brotherhood , showing followers in a state of trance , the voiceover asked whether , “ in order to combat such instances of bigotry ( yobazlık ) , an attempt was being made to set up groups of NORP converts , plunging the country into chaos ” .

The voiceover explained that the aim of the programme was not to judge any specific religion but to show that whatever their nationalities or religious beliefs , the pedlars of religion all used the same methods .

The voiceover explained that the programme producers had been contacted by a certain ORG , who lived in PERSON . This person had been intrigued by an advertisement asking “ would you like to read books free of charge ? ” , and had replied . In return , he had received a number of books by mail , all of them concerning NORP . He had written back and had once again received books on the same subject . The second dispatch had been accompanied by a letter thanking him for his interest in the subject .

There had subsequently been a telephone exchange between ORG and the sender , who had proved to be the applicant .

After that exchange it had been agreed that the applicant would travel to PERSON to meet ORG

It was at that point that ORG had decided to inform the programme producers and to invite them to make a documentary on the subject .

On DATE the applicant had travelled to PERSON to meet ORG and some of his “ friends [ purportedly ] interested in NORP ” for the first time , in a restaurant . The conversation had been filmed by a hidden camera .

According to the voiceover , the applicant had then presented the teachings of the Bible . He had continued by comparing NORP with other religions , emphasising his own beliefs . However , that sequence was not shown , on the grounds that the aim of the documentary was not to discuss the merits of specific beliefs but to expose the methods used .

A.N. and the applicant had arranged to meet up again DATE in an apartment , again accompanied by a group of ORG ’s friends purportedly desirous of learning about the NORP religion .

During that second meeting the applicant had explained that he was not alone but was part of a group working throughout GPE . He had said that LOC could be rented in PERSON for the converts , but that he would have to talk to his “ boss ” about that . The question of where the money would come from was difficult , but an open , intelligent attitude had to be adopted to such matters because converts could be accused of having changed religions thanks to pecuniary considerations rather than conviction .

The documentary then showed the following dialogue between the applicant and CARDINAL of the participants :

“ Participant :

- Have you read the Koran ?

Applicant :

– Yes .

Participant :

DATE What did you think of it ?

Applicant :

DATE I liked it . Some of the verses are good , but ...

Participant :

– ... but there is also some nonsense ?

Applicant :

– No , I would n’t say that , but it can not save me , because I know I am a sinner .

Applicant :

– The knowledge which God has sent us is set out in the Bible , the PERSON and the Book of the Psalms of David . [ That knowledge ] is complete in itself . We need no other prophet , because PERSON is divine in essence ... ”

Just as the applicant was apparently preparing , with the help of a bowl of water , to explain to the participants the ritual of baptism , the person hosting the programme , PERSON , burst into the room with a camera and a microphone .

She told the applicant that she had heard about the meeting and had come to make his acquaintance . She asked him who he was and where he came from .

The applicant replied that he was NORP and held an identity card up to the camera . He added that he was a journalist , and was involved in explaining the NORP faith on a voluntary basis .

Asked why the latter activity was covert , he answered that it was not covert , and that he had come to LOC with full trust in the person who had contacted him .

The documentary then presented an interview between Ms GPE and an academic from ORG . The latter explained that NORP were duty - bound to respect and believe in the divine nature of the holy books of all the monotheistic religions , pointing out that ORG was a religion of tolerance . However , he voiced his surprise at the covert nature of the activities shown in the documentary .

At the end of the programme the applicant was shown walking along carrying a bag . The voiceover described him as “ ORG , the pedlar of religion , on his way to the police station to give a statement ” .

According to the applicant , the hostess of the TV programme had been accompanied by police officers when she had burst into the room , and the officers had remanded him in custody after the discussions .

He had been released DATE , after having given his statement .

On DATE the ORG prosecutor ’s office brought criminal proceedings against the applicant for insulting Allah and ORG .

On DATE ORG found the applicant innocent given that no evidence had been provided of a criminal offence .

On DATE the applicant filed an action for damages against the programme presenter and producers .

GPE Regional Court ( “ IRC ” ) dismissed that action by judgment of DATE on the grounds of the public interest of dissemination of information .

By judgment of DATE the CARDINALth ORG of ORG set aside the latter judgment , by CARDINAL votes to CARDINAL .

In its reasoning the ORG noted that the case concerned a conflict of rights between freedom of expression , on the one hand , and personality rights on the other . Having reiterated the fundamental importance of freedom of the press , it pointed out that that freedom nevertheless had its limits . It considered that the claimant had not committed any unlawful act but had merely exercised his rights to freedom of expression and freedom of conscience , which CARDINAL rights were secured under both the LAW and LAW . That being the case , the claimant ’s right to respect for his private life had suffered a twofold violation , first of all when he had been filmed by a hidden camera , and secondly when the images had been broadcast , accompanied by such expressions as “ pedlar of religion ” and “ bigotry ” .

On DATE , ruling on the case referred back to it , the ORG decided not to follow the reasoning of ORG and instead to maintain its previous judgment .

In the face of such resistance from the IRC , the case was referred ex officio to ORG of ORG . By judgment of DATE , that ORG upheld the finding of the first - instance court by CARDINAL votes to CARDINAL .

In their reasoning , the judges of the superior court held that the impugned images had not concerned details of the applicant ’s private life , but had been part of a documentary on a topical issue of interest to the general public . They considered that there had been a major public interest in broadcasting the documentary at issue and that the documentary - makers had struck a fair balance between the merits and the formal aspects of the subject .

According to the case file that judgment was served on the applicant on DATE .

The applicant submitted that the owner of the apartment which he had rented had ended his lease following the transmission of the documentary for security reasons .

He added that he had been expelled to GPE .


REPRESENTATION OF THE UNION OF COUNCILS FOR JEWS IN THE FORMER SOVIET UNION AND UNION OF JEWISH RELIGIOUS ORGANISATIONS OF UKRAINE v. UKRAINE

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicants are ORG for NORP in the Former GPE ( “ the first applicant organisation ” ) and ORG of GPE ( “ the second applicant organisation ” ) . According to the applicants , the first applicant was established in DATE " with the purpose of representation of the interest of ORG in the Former GPE and for monitoring the situation regarding observance of human rights , facilitation of harmonisation of interethnic and inter - religious relations " . The second applicant " is a religious organisation " aimed at " assistance to NORP religious organisations in the protection of religious and other human rights " . They were represented before the ORG by Mr M. Sheykhet .


Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in Blumau .

The applicant and his former partner , ORG , have CARDINAL children , born out of wedlock in DATE and DATE respectively . PERSON always had sole custody of the children as the parents never agreed to have joint custody . The applicant and PERSON never cohabited on a permanent basis . The children lived with their mother during DATE . At DATE , the whole family usually stayed at the applicant ’s house .

NORP In DATE PERSON and the applicant separated and the children remained with their mother .

On DATE the applicant lodged an application with the GPE ORG ( LOC Innere GPE ; hereinafter , “ the ORG ” ) to transfer sole custody to him , or to grant him joint custody together with ORG Furthermore he applied for an interim measure concerning his visiting rights , as he had not seen his children since DATE .

On DATE the parents agreed that the applicant would be able to see his children DATE from TIME or TIME and every second DATE from TIME .

On DATE the applicant applied for an extension of his visiting rights to the whole weekend .

After CARDINAL visits from the applicant in DATE , GPE unilaterally stopped further visits , claiming that these had a negative influence on the children . DATE and GPE DATE , on his own initiative , the applicant secretly went to see his children at their school and kindergarten a few times .

ORG ( GPE ) submitted its statement on DATE and recommended maintaining sole custody for the mother and visiting rights for the applicant according to the agreement the parents had concluded on DATE .

On DATE ORG decided to grant the applicant visiting rights on DATE from TIME . It dismissed the applicant ’s application for sole custody .

In its reasoning the court held that the children were well cared for by their mother . According to LAW ) as in force at the relevant time , a transfer of custody was only possible if the children ’s best interest was at risk . In the present case the court found no such risk and the applicant actually had not claimed such a risk . The court further held that the visiting rights were decided in accordance with the GPE mutual agreement .

The applicant appealed on DATE and argued in essence that he was discriminated against , compared to the mother . Also , he complained that the court had not decided on the question of whether the parents could be awarded joint custody .

According to the applicant ’s submissions , his visiting rights were resumed on DATE in the amount determined by ORG ( see paragraph CARDINAL above ) .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal as unfounded . It confirmed the reasoning of ORG and held that there was no indication of a risk to the children ’s best interest if the mother maintained sole custody . It further held that there was no provision in law ordering a preference for granting CARDINAL of the parents sole custody . The court also found that the parents had not mutually agreed on joint custody , therefore no further issues arose in this connection .

The applicant lodged an extraordinary appeal with ORG ( Oberster Gerichtshof ) on DATE , again claiming that he was discriminated against compared to the mother and that the decision of the lower instances violated his rights under LAW .

On DATE ORG rejected the applicant ’s extraordinary appeal for lack of an important issue of law .

After the amendment of LAW ( see paragraph CARDINAL below ) , the applicant on DATE again applied for joint custody , or sole custody in the alternative . Shortly after , PERSON moved with the children to the south of GPE , QUANTITY from GPE . The applicant ’s requests for sole or shared custody were finally dismissed by ORG on DATE .


Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

Mr PERSON GPE was born in DATE and lived , prior to his disappearance , in GPE . He is a stateless person . The application in his name was submitted to the ORG by Ms N. ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE to ORG .

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

NORP In DATE Mr GPE moved from GPE to GPE in GPE .

In DATE the NORP authorities opened a criminal case against Mr GPE on charges of attempting to overthrow the ORG ’s constitutional order in GPE and put his name on the wanted ORG list .

On DATE Mr PERSON was arrested in GPE , GPE , and remanded in custody with a view to extradition .

On DATE ORG office decided to extradite PERSON to GPE . The domestic courts at CARDINAL levels of jurisdiction upheld the extradition order . A final decision on the matter was taken by ORG of GPE on DATE .

On DATE Mr Isakov lodged an application with the ORG in which he complained about his detention in GPE with a view to extradition to GPE where he faced politically - based persecution by the local authorities . On DATE Mr GPE signed an authority form authorising several lawyers , including PERSON , to represent him in the proceedings before ORG .

On DATE the ORG granted Mr GPE ’s request for the application of interim measures under Rule CARDINAL of the Rules of the ORG and indicated to ORG that he should not be extradited to GPE until further notice . On the same date the application was communicated to the ORG which were requested to submit observations concerning the risk of ill - treatment if the extradition order in respect of Mr GPE were enforced , lawfulness and review of his detention in GPE and alleged lack of effective remedies in this respect . The parties’ observations were received on DATE and CARDINAL DATE respectively . The Government complied with the ORG ’s request as to the application of interim measures and submission of observations .

On DATE Mr Isakov was released from custody and on DATE he was granted temporary asylum in GPE .

On DATE the ORG delivered a judgment in Mr PERSON ’s case ( see LOC v. GPE , no . CARDINAL/CARDINAL , DATE ) where it found , inter alia , that in the event of the extradition order against Mr GPE being enforced , there would be a violation of LAW .

On DATE the ORG of ORG quashed the decision of DATE and the ensuing judicial decisions , including ORG decision of DATE ( see paragraph CARDINAL above ) .

Mr GPE and his family ( wife and children ) continued to reside in GPE , GPE .

On DATE the Government informed ORG of the individual measures taken within the framework of the execution of the judgment in Mr GPE ’s case . In particular , the Government reported that ( CARDINAL ) the judgment had been enforced as regards the payment of non - pecuniary damage and reimbursement of costs and expenses and ( CARDINAL ) the extradition - related judicial decisions had been quashed .

In DATE , within the framework of the supervision of the execution of a number of judgments against GPE relating to disappearances and/or forcible transfers and also repeated allegations of such incidents , ORG adopted an Interim Resolution ( CM / ResDh(CARDINAL)CARDINAL ) exhorting the NORP authorities to develop without further delay an appropriate mechanism tasked with both preventive and protective functions to ensure that applicants belonging to the risk group benefit from immediate and effective protection against unlawful or irregular removal from the NORP territory .

In TIME of CARDINAL DATE Mr GPE ’s car was found damaged on the road and Mr PERSON had disappeared . His family ’s attempts to establish his whereabouts were to no avail .

On DATE TIME , Mr GPE ’s nephew , reported Mr GPE ’s disappearance to the regional department of the interior . Mr PERSON ’s family retained counsel PERSON . to represent them in connection with the investigation into Mr PERSON ’s disappearance .

On DATE the ORG granted a request lodged by Ms Yermolayeva , under Rule CARDINAL of the Rules of the ORG , and indicated to the Government that Mr GPE should not be extradited , expelled or otherwise involuntarily removed from GPE to GPE or another country for the duration of the proceedings before the ORG . The Government were also requested to furnish any information about Mr PERSON ’s whereabouts and possible arrest and detention in GPE and/or removal to GPE . The application was also granted priority under Rule CARDINAL of the Rules of the ORG .

On DATE the Government reported that the investigation into Mr GPE ’s disappearance was pending and that his whereabouts were unknown to the authorities .

On DATE , relying on the authority form issued by Mr Isakov in DATE , PERSON lodged an application in Mr PERSON ’s name . She alleged that Mr PERSON had been abducted by NORP state agents and forcefully removed to GPE where he would be subjected to treatment contrary to LAW . Referring to LAW , she argued that the ORG had failed to comply with the ORG ’s indication made under Rule CARDINAL of the Rules of the ORG .

On DATE the senior investigator with the regional investigative committee opened criminal investigation into Mr GPE ’s disappearance .

On DATE the senior investigator in charge of Mr GPE ’s disappearance questioned PERSON . I. , Mr PERSON ’s brother . Kh . I. submitted that , according to his older sister who lived in GPE , Mr GPE was allegedly in GPE , GPE .

On DATE the President of the Section gave notice of the application to the Government and invited the latter to submit written observations on the admissibility and merits of the case .

On DATE the senior investigator in charge of Mr GPE ’s disappearance questioned PERSON , Mr GPE ’s son .

On DATE the Government submitted the observations .

On DATE PERSON submitted the observations on the matter maintaining the complaints on Mr PERSON ’s behalf and claims for just satisfaction .

On DATE the Government provided comments on the claims for just satisfaction and further observations .

On DATE the President of the Section invited the parties , under Rule CARDINAL § CARDINAL ( c ) of the Rules of the ORG , to submit further observations on the admissibility and merits of the case . The parties were to comment as to whether the application was compatible ratione personae with the provisions of the Convention and the Government ’s failure to submit a complete investigation file concerning Mr PERSON ’s alleged abduction and disappearance .

On DATE May and DATE PERSON and the Government respectively submitted further observations ( see paragraphs CARDINAL below ) .

Mr PERSON ’s whereabouts remain unknown to date .

In its decisions adopted at ORG and GPE meetings ( DATE and DATE ) , ORG , responding to the situation concerning disappearances and/or forcible transfers , noted that the NORP authorities adopted a number of awareness - raising measures and instructions . Nevertheless , ORG considered that these measures were insufficient and invited the authorities to adopt special protective measures in respect of the applicants who were exposed to such risks and underlined the need for special measures to ensure rapid and effective investigations into such incidents .

On DATE ( ORG Dec(CARDINAL)CARDINALE/CARDINAL DATE ) at its QUANTITY meeting ( DH ) , ORG noted as follows , as regards Mr PERSON ’s situation :

“ As to the investigation of the alleged abductions of PERSON and GPE reported in DATE , criminal cases have been opened . No evidence has thus far been obtained regarding the removal of Mr LOC from the territory of GPE . The NORP authorities also insisted that ORG was not competent to supervise this issue as it was already being examined in the adversarial proceedings before ORG .

As regards the NORP authorities’ comments with respect to the ORG ’s competence to supervise the investigations into the recent alleged abductions of PERSON and GPE , the following factors have to be taken into account . As regards the first case , there already exists a final ORG judgment establishing a violation , granting the ORG full competence to look into both individual and general measures , irrespective of any new application made on behalf of the same person to the ORG . Such situations are frequent and have never led the ORG to exempt the ORG concerned from its obligation to keep the ORG informed of the developments . As regards the second case , while it is true that there is no final judgment at the moment , the case is relevant for execution purposes as an example , among others , of the development of the situation and the efficiency of the general measures adopted ( see e.g. the ORG ’s indication in the PERSON judgment ( § CARDINAL ) . ”


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

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

The applicants complained of the non - enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law . The applicant in application no . CARDINAL also raised other complaints under the provisions of the LAW .


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque

NORP The applicant , Mr PERSON , was a NORP national who was born in DATE and lived in PERSON . He was represented before the ORG by PERSON , a lawyer practising in ORG . The applicant died on DATE . His daughter , PERSON , born in DATE , applied to pursue the application before the ORG in his name and retained the same lawyer to represent her .

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

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

On DATE ORG opened criminal proceedings against the applicant and CARDINAL co - accused for fraud and aiding and abetting fraud .

ORG - am adunat pentru a trage țepe , dar nu am gandit - o de o aşa mare amploare ) .


Alena Poláčková;Branko Lubarda;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

NORP The applicant is a NORP national who was born in DATE and is currently detained in PERSON . The President decided of his own motion to grant the applicant anonymity ( Rule CARDINAL § CARDINAL ) . He is represented before the ORG by ORG s.r.o . , a law firm with its registered office in GPE .

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

The applicant is of Ingush ethnic origin .

In DATE he left GPE for GPE , GPE , GPE and , ultimately , GPE , where he arrived in DATE .

The applicant was subsequently returned to GPE and then to GPE , where he applied for asylum on DATE under a different identity .

While the asylum proceedings in GPE were pending he left for GPE , where he remained , unsuccessfully seeking asylum , from DATE .

The applicant ’s asylum request in GPE was dismissed on DATE and then again on CARDINAL DATE , after the first decision had been quashed on administrative appeal . The applicant ’s subsequent administrative - law appeal was declared inadmissible as belated at CARDINAL levels of jurisdiction . The dismissal of his asylum request thus became final and binding on DATE .

On an unspecified date in DATE the applicant left GPE for GPE , where he unsuccessfully applied for asylum in DATE and was ultimately returned to GPE on DATE .

After this the applicant applied for asylum in GPE and GPE applied for his extradition in order for him to be tried on charges related to acts of terrorism allegedly committed by the applicant with others on the territory of GPE . This resulted in CARDINAL sets of proceedings , which ran in parallel and are described below in turn .

On his return to GPE ( see paragraph CARDINAL above ) , on DATE , the applicant claimed asylum again , this time under his true identity .

The claim was examined at the first administrative level by ORG , which dismissed it on DATE , CARDINAL DATE and DATE . However , all these decisions were quashed by administrative courts following administrative - law appeals by the applicant .

The last - mentioned decision was quashed by ORG on DATE and the matter was remitted to ORG for reconsideration .

The principal ground for this decision was that ORG had failed to follow binding instructions issued by the court as part of its previous judgments quashing ORG decisions , namely to examine properly :

( i ) the applicant ’s allegations that he was suffering from amnesia due to torture at the hands of NORP law - enforcement officers and resultant concussion ;

( ii ) the applicant ’s allegation that , in view of his PERSON origin and the political situation in GPE where he was wanted , he would be in danger if extradited there , while these allegations were to be examined in the light of existing reports on the police and justice situation in GPE ;

( iii ) the existing documentation concerning the situation of the individuals whose depositions had provided the basis for the charges against the applicant ( see paragraphs CARDINAL et seq . below ) ;

( iv ) the validity of the guarantees given by ORG ( “ the OPGRF ” ) to the NORP authorities as regards the applicant ’s treatment in the event of his extradition to GPE ( in particular those specified in a letter of CARDINAL DATE ) ; and

( v ) reports by non - governmental organisations concerning the applicant ’s individual case and the situation in the requesting country in general .

On DATE ORG dismissed the applicant ’s second asylum request for the fourth time and decided not to grant him any subsidiary protection .

It observed that at various stages of the proceedings the applicant had given CARDINAL different time references ( DATE , DATE and DATE ) to his allegation that he had been arrested and mistreated by the police in GPE , that there had been inconsistencies as to the length of his ensuing hospitalisation , and that there were further incongruities between the time and scope of the offences imputed to him in the official extradition documentation and those referred to by the applicant himself .

Moreover , the applicant had never before relied on any of the statutory grounds for granting asylum , and his present allegations of persecution on political , religious and ethnic grounds were entirely novel , while his prosecution in the requesting state had no political or ideological connotations . The applicant ’s account of the facts was therefore found to be untrustworthy .

ORG observed that the available documents confirmed that the applicant had been hospitalised in a traumatology department from CARDINAL May to DATE with a number of injuries . There was however no evidence showing that his injuries were in any way attributable to the ORG .

His present digestive problems could not be linked to those injuries , because the applicant had been suffering from them even before his alleged mistreatment . As to his alleged amnesia , by which he sought to explain the incongruities in his factual submissions , ORG considered it improbable , because his recollection of other facts was clear and precise . Nevertheless , ORG had obtained expert evidence concluding that the concussion he had sustained in DATE could neither have produced amnesia , nor could it have had any permanent effects on his health .

Furthermore , ORG observed that the requesting ORG , through the OPGRF , had provided assurances as to the applicant ’s treatment in the event of his extradition on DATE , and that these guarantees had been confirmed and amended on CARDINAL DATE and DATE .

According to these guarantees , the applicant would have at his disposal all existing legal means of asserting his rights , including the assistance of a lawyer . He would not be exposed to torture or any other form of illtreatment , and the death penalty would not be imposed on him . His prosecution was not motivated politically , racially , religiously or ethnically . He would not be prosecuted for any other offences than those for which his extradition was sought , and he would not be extradited further to another ORG without GPE ’s consent . NORP diplomatic representatives would also be free to monitor compliance with the guarantees given .

In its assessment of these guarantees ORG took into account that they had been provided by the OPGRF and that there was no indication that they would not be effective in LOC . Once the applicant ’s criminal proceedings were completed and any sentence served , he would be free to settle in any other place , not necessarily LOC . There was no precedent for GPE not to comply with the diplomatic guarantees given to GPE in a similar context .

ORG pointed out that GPE did not have a record of systematic human rights violations , that the guarantees were clear , specific and individualised , that they had also been confirmed by the requesting ORG as an intervening third party in the proceedings before ORG ( see paragraph CARDINAL below ) , that their observance was subject to diplomatic monitoring , and that their validity had been recognised by ORG in the extradition proceedings ( see paragraph CARDINAL below ) .

As to the various reports concerning the situation in GPE , ORG considered them general in nature and in the circumstances not capable of prevailing over the specific and individual guarantees provided by the OPGRF .

Concerning the available material on the applicant ’s co - accused , which included their pre - trial depositions , ORG found that it was general , contained no more than allegations , was flawed by inconsistencies , and did not constitute proof of the allegations that they had been mistreated . The applicant was mentioned only once , in CARDINAL of the pre - trial depositions , and this mention did not implicate him in any way . Moreover , when the applicant ’s co - accused changed their versions before the court , their submissions were properly examined in adversarial proceedings . Therefore , this material did not represent a probability that , in the event of his extradition , the applicant would himself be mistreated or that he would be denied a fair trial in the proceedings against him .

In sum , there was no trustworthy indication of the existence of any grounds for granting the applicant asylum . Moreover , with reference to his state of health as established in a report from a prison hospital of DATE , ORG found no humanitarian reasons linked to the applicant ’s health or otherwise for providing him with subsidiary protection .

The applicant challenged the decision of CARDINAL DATE by way of an administrative - law appeal , arguing in principle that ORG had yet again completely ignored the binding instructions of the administrative court and had simply reaffirmed its previous line of decisions with all the errors therein .

That appeal is still pending before ORG .

On DATE a judge of the ORG North Ossetia - GPE ) issued a warrant for the applicant ’s arrest on the charges of membership of an existing armed illegal group and of perpetration of assaults organised by it , illegal possession of firearms and explosives , terrorist acts , homicide of QUANTITY or more persons , and other offences committed in GPE - GPE DATE and DATE .

On DATE respectively the applicant was arrested and placed in preliminary detention in GPE .

On DATE GPE asked for the applicant ’s extradition .

On DATE ORG remanded the applicant in custody pending his extradition to GPE .

On DATE and CARDINAL DATE respectively ORG and , following the applicant ’s interlocutory appeal , ORG , ruled that the applicant ’s extradition was permissible .

The courts found that none of the statutory grounds preventing extradition had been given and , in particular , that the applicant ’s extradition was not precluded by his asylum claim of DATE ( see paragraph CARDINAL above ) as this was a repeated claim . In reaching that conclusion , they ascribed significant importance to the guarantees provided by the OPGRF as regards the applicant ’s treatment in the event of his extradition by the requesting State .

In addition , the courts took into account that the requesting ORG was a member ORG and a ORG to the LAW . Moreover , they referred to the case - law of the ORG , including its decision of DATE in the cases of GPE v. GPE and GPE v. GPE ( nos . CARDINAL and CARDINAL/CARDINAL ) .

In so far as the applicant had argued that the case against him in GPE was concocted and based on evidence obtained by torture , these allegations were to be examined in the proceedings on the merits of his charges in GPE , the NORP authorities being by no means equipped to assess them , not least as they did not even have the relevant case files at their disposal .

Lastly , the courts observed that , in so far as the applicant ’s argument was based on generally worded reports by non - governmental organisations , these reports were outweighed by the individualised and specific guarantees of the requesting ORG , and there were no obstacles to the nongovernmental ORG monitoring the fairness of the applicant ’s proceedings in GPE .

On DATE ORG acceded to the applicant ’s request of DATE by indicating an interim measure suspending ORG decision of DATE . At the same time , it declared admissible the applicant ’s constitutional complaint that that decision was in violation of his rights under LAW .

On DATE ORG found that ORG decision of CARDINAL DATE was in violation of the applicant ’s Article CARDINAL rights , quashed it , remitted the case to ORG for a new examination of the applicant ’s interlocutory appeal against the decision of DATE , and awarded him costs . It found that ORG assessment of the case was formalistic , superficial , and inadequate , in particular as regards ( i ) the available reports on the general situation with respect to human rights in GPE and especially in the LOC , ( ii ) the applicant ’s allegations that he and his co - accused had been ill - treated by the police and that his charges were based on evidence obtained by the ill - treatment of his co - accused , and ( iii ) the validity of the diplomatic guarantees of the requesting ORG in the light of the ORG ’s case - law .

On DATE ORG ruled again on the applicant ’s interlocutory appeal against the decision of ORG DATE , as instructed by ORG in its judgment of DATE . In its decision ORG again dismissed the interlocutory appeal . It did so having observed that the offences of which the applicant stood accused had taken place DATE , that the CARDINAL consecutive asylum proceedings had together taken DATE and were still not completed , that the applicant had been detained pending extradition for DATE , and that the maximum duration of such detention was not limited by statute . It held that the length of the asylum proceedings was unreasonable and that in the circumstances it was inappropriate for ORG to await the ultimate resolution of the asylum proceedings .

ORG summarised the requesting ORG ’s guarantees ( see paragraph CARDINAL above ) and concluded that they were sufficiently specific , individualised and reliable . As there had not been any specific instance of extradition from GPE to GPE , there was no concrete experience of or practice in monitoring compliance with guarantees given , nor was there any instance of failure to respect the guarantees .

The general reports on human rights situation in GPE were to be seen in the light of the applicant ’s specific circumstances .

Moreover , ORG referred to reports on the DATE and DATE visits of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the CPT ” ) to GPE and the measures taken by the NORP authorities in response to the ORG ’s findings . In addition , ORG again referred to the ORG ’s assessment of the guarantees provided by GPE in GPE and ORG ( both cited above ) and other cases . Lastly , it considered that it was not the task of the courts in extradition proceedings to take a stance as regards the lawfulness of the prosecution for the purposes of which a person was to be extradited .

There was no appeal available against ORG decision of DATE and , accordingly , the ruling that the applicant ’s extradition was permissible became final and binding on DATE .

The applicant subsequently contested ORG decision by way of a constitutional complaint , which ORG declared inadmissible without examining its merits on DATE , on the ground that it fell manifestly short of the applicable formal requirements .

The final decision on the applicant ’s extradition now lies with the Minister of ORG , who has discretion to allow or disallow extradition subject to various considerations under LAW , including specifically those under LAW .

The request of GPE of DATE for the applicant ’s extradition ( see paragraph CARDINAL above ) was accompanied by guarantees from the OPGRF as regards the treatment to be accorded to the applicant in the event of his extradition .

In a letter of CARDINAL DATE from ORG before ORG to ORG of GPE , the guarantees in question were confirmed and summarised as follows : the applicant would enjoy all the fair trial guarantees which existed in international law , would only be tried for the crimes for which he had been extradited by GPE , would not be subjected to torture or inhuman or degrading treatment or punishment , would be free to leave GPE on the completion of his proceedings and after serving any sentence , and would not be extradited to a third country without GPE ’s consent .

In a letter of DATE the OPGRF responded to GPE ’s request for an amendment of the guarantees in question by pledging that , in the event of his extradition , the embassy of GPE in GPE would be informed of the place of his detention and officers of the embassy would be allowed to visit him and speak to him without the presence of a third person .

In a letter of DATE , in reply to a further request by GPE , the OPGRF confirmed the guarantees previously given .

The applicant claims that in DATE he was arrested and interrogated by police in GPE ) on suspicion of involvement in terrorist activities . As he refused to confess , he was beaten and otherwise tortured for DATE . He was subsequently provided with a lawyer , and it took a further DATE until he was released and then immediately admitted to hospital , where he spent DATE with concussion and multiple other traumas .

Once the applicant had learned of the arrests of his acquaintances on terrorist charges ( see below ) , he went into hiding in GPE , GPE and elsewhere .

His home was subsequently searched and his relatives interrogated as to his whereabouts . These included an uncle whose property was plundered and who was beaten during his interrogation before being released on DATE .

The applicant submits that in DATE CARDINAL acquaintances of his , PERSON , PERSON , and PERSON , were arrested on charges of terrorist acts in GPE ; that they were taken to a police station in NORP where they were interrogated , beaten and tortured into confessions ; and that CARDINAL of them had given the applicant ’s name .

The case - file contains documentation concerning these individuals , including expert reports on injuries suffered by ORG in TIME DATE and on the mental condition of PERSON ; what appears to be parts of transcripts of undated court hearings of a witness PERSON , an accused PERSON , PERSON lawyer , PERSON , and PERSON mother ; and a statement issued by the mother of ORG .

This documentation contains allegations of ill - treatment and coercion with regard to PERSON , ORG , ORG and ORG .

In so far as the applicant is concerned , in CARDINAL of the transcribed submissions , PERSON stated that he had never seen PERSON and the applicant together , admitted having seen the applicant once , but submitted that he had had no personal or telephone contact with him . In addition , in her statement concerning principally the convictions of her son and his associates , which according to her was based solely on self - incriminating evidence extracted from them by torture , the mother of ORG stated that the convicts had been coerced into implicating other people , including the applicant .

PERSON , ORG and ORG introduced an application of their own under LAW against GPE ( no . CARDINAL/CARDINAL ) . It has been communicated to ORG of GPE for observations and is still pending .

Finally , in addition to the material referred to in the subsequent paragraph , the applicant relied on a number of international documents including from ORG , ORG , a Special Rapporteur of ORG of ORG , the Commissioner for Human Rights of ORG , ORG , ORG , ORG , ORG on the independence of judges and lawyers and ORG on the independence of judges and lawyers originating from or pertaining to the period DATE .

A number of relevant international instruments and reports concerning the situation in GPE are summarised , for example , in the ORG ’s judgments in the cases of PERSON GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) , and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE , with further references ) .


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

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in DATE and lives in PERSON .

The applicant served his prison sentence in the closed and semi - open sections of GPE prison .

In the period from DATE to CARDINAL DATE he was held in the closed section : for DATE in cell CARDINAL , measuring QUANTITY ( not including a separate QUANTITY sanitary facility ) shared with CARDINAL other inmates and with QUANTITY of personal space and for DATE in cell CARDINAL measuring QUANTITY ( not including a separate QUANTITY sanitary facility ) . The Government submitted that in cell CARDINAL the number of prisoners varied CARDINAL and when there were CARDINAL prisoners therein the applicant had QUANTITY of personal space .

In the period DATE and CARDINAL DATE he was held in the semi - open section in cell CARDINAL , measuring QUANTITY ( not including a separate QUANTITY sanitary facility ) shared with CARDINAL other inmates and with QUANTITY of personal space and cell CARDINAL , measuring QUANTITY ( not including a separate QUANTITY sanitary facility ) shared with CARDINAL other inmates and with QUANTITY of personal space .

As regards the general characteristics of the cells in the closed and semi - open sections , material conditions inside the cells , sanitary conditions and health care , see the judgment in ORG and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § § DATE , DATE .

As to the out - of - cell time in the closed section , the ORG found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities , most of which were to take place in the recreation room . There was , however , CARDINAL ORG - metre recreation room per floor , which was to be used by CARDINAL inmates at most ( NORP and Others § DATE ) .

As to the out - of - cell time in the semi - open section , the ORG submitted that the cell doors in the semi - open section of the prison were unlocked , except from TIME ( on DATE and DATE from TIME ) until TIME ( on DATE , DATE and during holidays until TIME ) . During this time prisoners could move freely in the corridor ( QUANTITY ) , living quarters of co - prisoners or in the indoor or outdoor exercise areas , in accordance with prison rules . The Government contended that this regime had been in place for DATE .

As regards the cell temperature , the data provided by the Government showed that the average temperature in the cells in TIME ( CARDINAL- TIME ) in DATE and DATE had been approximately CARDINAL , exceeding CARDINAL on DATE .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

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

The applicants complained of the excessive length of their pre - trial detention . In applications nos . CARDINAL and ORG , the applicants also raised other complaints under the provisions of the Convention .