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

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev

The applicant was born in DATE in GPE , in the former GPE ( GPE ) , and lives in GPE .

The applicant is the natural and only daughter of PERSON , who recognised paternity in DATE . She lived in the territory of the former GPE until DATE , while her father lived in GPE ( FRG ) , having married . The father and the daughter corresponded regularly during that period . DATE , the applicant also visited her father and his wife once DATE . After the applicant obtained an exit permit in DATE for herself , her husband and her younger daughter , she left the GPE and moved to GPE . Thereafter the applicant visited her father on a regular basis until DATE . He died on DATE .

On DATE the applicant applied to ORG for the right to administer her father ’s estate , asserting the incapacity of her father ’s wife to protect the applicant ’s inheritance due to a grave illness , and notified ORG of her inheritance claims . Furthermore , she asked to receive copies of all documents relating to the estate . She asserted that DATE she had regularly visited her father at his retirement home and had talked to him on the telephone . Subsequently , her own health had prevented her from visiting . Telephone calls had been impossible because her father ’s health had meant he had no longer been able to use a telephone . The retirement home had been in possession of her address and telephone number , and had phoned her on several occasions .

In a decision of CARDINAL DATE ORG dismissed the applicant ’s application , as there were no indications that the applicant ’s father ’s wife could not protect the inheritance . In addition , being born before DATE and thus not being a statutory heir , she had no right to receive copies of documents about the estate .

On DATE the applicant appealed to ORG , arguing in particular that she needed the power to administer the estate because her father ’s wife suffered from dementia and that she was a statutory heir because she was her father ’s natural daughter .

In a decision of CARDINAL DATE ORG upheld ORG decision refusing to give her the power to administer her father ’s estate , holding that the applicant was not a statutory heir and thus had no right to apply . ORG referred to the first sentence of section CARDINAL(CARDINAL)(CARDINAL ) of the Children Born outside Marriage ( Legal Status ) Act of DATE ( see paragraph CARDINAL below ) and to a decision of ORG of DATE , in which the provision had been found to be in conformity with LAW ( see paragraph CARDINAL below ) .

On DATE the applicant appealed to ORG , arguing that the application of the first sentence of section CARDINAL(CARDINAL)(CARDINAL ) of the Children Born outside Marriage ( Legal Status ) Act would discriminate against her and breach her inheritance rights and was therefore not in conformity with LAW . The applicant pointed out that in her case there was no need to protect the legitimate expectations of the deceased or other heirs as she was her father ’s only daughter and her father had been separated from his wife for DATE when he had died . Furthermore , cultural and social changes within society had to be considered when interpreting LAW .

NORP In a decision of CARDINAL DATE ORG dismissed the applicant ’s appeal on the grounds that it was bound by the decisions of ORG in which the first sentence of section CARDINAL(CARDINAL)(CARDINAL ) of the Children Born outside Marriage ( Legal Status ) Act had been found to be in conformity with LAW . In ORG view , the provision did not contravene LAW , despite NORP reunification , as ORG had held in a decision of DATE ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE the applicant lodged a constitutional complaint with ORG , claiming discrimination as a result of the application of the aforementioned provision . According to her there were no apparent reasons why children born outside marriage should be treated differently from those born within marriage . That was particularly true in her case because she was her father ’s only child . The applicant argued that ORG , when considering an appeal , had to respect LAW , which provided that children born outside marriage must be provided by legislation with the same opportunities for physical and mental development and for their position in society as those enjoyed by children born within marriage . That provision prohibited a generalised application of the first sentence of section CARDINAL(CARDINAL)(CARDINAL ) of the Children Born outside Marriage ( Legal Status ) Act .

In a decision of CARDINAL DATE ORG declined to consider the complaint , which it considered inadmissible for lack of sufficient substantiation ( no . CARDINAL ) . It observed , in particular , that the applicant had failed sufficiently to address the arguments of ORG decision . As the applicant doubted the validity of the first sentence of section CARDINAL(CARDINAL)(CARDINAL ) of the Children Born outside Marriage ( Legal Status ) Act , which had previously been declared valid by ORG , she had been obliged to give further reasons , which she had failed to do .


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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 . They also raised other complaints under the provisions of the Convention .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant was born in DATE and is currently detained in GPE prison .

On DATE the applicant , Mr GPE and Mr V.S. broke into the home of Mr N. , a local businessman , which was located in LOC . The applicant had CARDINAL prior convictions for theft , burglary , robbery and carjacking . According to the findings of the domestic court that subsequently convicted the applicant , Mr N. had fought with the intruders and , unable to overcome his resistance otherwise , they had stabbed him to death . As a result of the attack PERSON , PERSON ’s wife , sustained injuries of medium severity . Numerous valuables and documents were stolen , including some jewelry , a reserve officer ’s card belonging to ORG and certificates showing his achievements in sports .

On DATE the LOC police instituted criminal proceedings in connection with the incident .

On DATE PERSON was arrested and questioned . He stated that the applicant had stabbed N. in the course of the burglary . V.S. had hit PERSON , who had tried to come to N. ’s rescue .

At TIME on DATE I.Kot . , PERSON . , ORG and PERSON , detectives from ORG , located the applicant in PERSON and apprehended him in the street . According to the subsequent submissions of the applicant and the detectives to the domestic authorities , the applicant attempted to flee ; in order to stop him from fleeing the detectives tripped him up , he fell on the asphalt pavement and was then handcuffed . According to the applicant , after he had been handcuffed the police officers continued to hit and kick him .

The applicant also claimed that following his arrest he had been illtreated by the police in order to extract his confession .

At TIME on DATE an arrest report was drawn up by ORG . According to a document provided by the Government , at the same time the applicant was admitted to the GPE temporary detention facility ( ізолятор тимчасового тримання , “ the ORG ” ) .

On DATE an investigator , PERSON , asked a forensic medical expert to record any injuries on the applicant ’s body and to provide an expert opinion as to when and how they had been inflicted .

On DATE the forensic medical expert , PERSON ( referred to as Mr H. by the Government ) , issued a report stating that the applicant had the following injuries : a bruise on his forehead and , overlapping it , CARDINAL long , deep , vertical parallel scratches ; bruises on the bridge of his nose , his chin , wrists and neck ; CARDINAL small bruises on the fingers of his right hand ; and swelling of the back of his right hand . The bruises on his wrists were soft and pink in colour . The other bruises were covered in dry scabs . The expert classified the injuries as minor and expressed the opinion that they could have been inflicted on DATE . According to the report , the applicant explained to the expert that he had injured his face and hands when he fell trying to run away from the police .

At TIME on DATE PERSON , the investigator from ORG , questioned the applicant as a suspect . The applicant stated that on DATE he had agreed with ORG proposal to burgle Mr N. ’s home . The applicant had not taken a knife with him and had not seen V.S. or FAC do so . Once they had broken into the house , the applicant switched off the television set ORG had been watching , while GPE and GPE started punching ORG screams , PERSON tried to enter the room , and the applicant hit and kicked her . Afterwards the applicant kicked N. CARDINAL or CARDINAL times . While the others continued hitting ORG , the applicant started looking for money , then took a knife from ORG and cut some paintings out of their frames . He also took other valuables from the house .

At TIME on DATE , following the applicant ’s complaint about his health , an ambulance was called to the ORG for the applicant . The ambulance staff noted that the applicant had bruises on his face and right hand , and was suffering from concussion , hypertension and an oedema .

On DATE the applicant was charged with aggravated burglary and infliction of grievous bodily harm resulting in the death of the victim . Questioned on DATE as an accused , the applicant confirmed the account of events he had given on DATE and added that he had seen V.S. hitting ORG but not stabbing him . The applicant reiterated that he had not stabbed ORG and had had no intention of murdering him . He had used the knife to cut paintings out of their frames . Prior to the burglary ORG had promised that he would take it upon himself to force ORG to give up the money .

On DATE the applicant was examined by medical staff on his admission to the GPE pre - trial detention centre ( слідчий ізолятор , hereinafter “ the GPE ” ) . According to a certificate issued by the GPE on DATE , the applicant did not raise any complaints during that examination .

In the period from DATE to CARDINAL DATE the police took the applicant from the GPE CARDINAL times in order to carry out investigative measures with him .

On DATE Mr PERSON . was appointed as the applicant ’s defence counsel . On DATE the applicant was questioned in PERSON . ’s presence . The applicant confirmed the account of events he had given on CARDINAL and DATE , including the statement that at ORG ’s house he had used the knife to cut paintings out of their frames , and added that there had been no plan to murder ORG but simply to burgle his house . When he and his co - defendants had learned that ORG would be home , the plan had been simply to tie him up .

According to the Government , on DATE the applicant was familiarised with the medical expert ’s report of DATE and made no comments or requests .

On DATE , having examined the applicant as an inpatient , a panel of psychiatric experts issued a report concluding that the applicant was not suffering from a mental illness . In discussing the applicant ’s mental health history the experts noted that in DATE he had been involved in a fight , suffered a blow to the head and had received outpatient treatment for the injury . On DATE the applicant and his lawyer signed a statement confirming that they had examined the report and had no comments or requests to make .

On DATE the applicant was questioned again in the presence of his lawyer . He reiterated his earlier statement . In the course of the questioning the investigator asked the applicant why he had not initially joined his co - defendants in attacking N. The applicant refused to answer .

In the course of the pre - trial investigation GPE stated that it had been the applicant who had stabbed LOC In the course of a confrontation between the applicant and GPE , the latter reaffirmed his statement . The applicant denied ORG allegations but refused to testify .

P. stated that it had been ORG , and not the applicant , who had attacked and hit her .

Ms GPE stated that on DATE the applicant had given her a mobile phone and a silver chain which he had stolen from ORG and P.

On DATE the case against the applicant and his co - defendants , GPE and GPE , was sent for trial to ORG ( “ the Court of Appeal ” ) , sitting as a trial court .

On DATE the trial court informed the applicant that the question of whether an additional psychiatric examination should be ordered would be examined in the course of the trial .

The applicant pleaded guilty to the charge of theft of documents , guilty in part to the charge of aggravated burglary , and not guilty to the charge of murder . He refused to testify at length , but in response to a question stated that he had used a knife to cut the paintings out of their frames at the GPE house . PERSON pleaded guilty to the charge of aggravated burglary and GPE pleaded guilty to that charge in part . They largely reiterated the statements they had given during the pre - trial investigation concerning the applicant ’s role in the crime , in particular stating that they had not stabbed N. and had seen the applicant , knife in hand and covered in blood , lead ORG , also covered in blood , to a safe to extract ORG ’s money . ORG also stated that the applicant had told him that he had stabbed N.

PERSON and PERSON testified that late on the night of the murder the defendants had left the house where they had been staying together . GPE had been carrying a knife . The defendants had then returned with various objects , including paintings and documents . PERSON testified that she had seen blood on the applicant ’s clothes when he returned TIME . PERSON also testified that when the applicant had returned , he had given her his clothes and had instructed her to burn them . However , she had left the clothes in the house .

CARDINAL other witnesses testified that on DATE they had witnessed the owner of the house in question handing over to the police a bag of clothes which had been left there by the defendants . According to DNA expert reports , the applicant ’s hair and blood possibly originating from the victims were found on the clothes in the bag .

On DATE the applicant asked the trial court to call PERSON , the medical expert , as a witness , on the grounds that in her report of DATE she had failed to specify exactly when the injuries had been inflicted on the applicant . In support of his request he stated that he had been ill - treated in the course of and following his arrest . The applicant also asked for PERSON . , an investigator from ORG to be called as a witness , arguing that his statements during the pre - trial investigation were untrue and had been dictated to him and given under pressure . He also asked for police detectives I.Kot . , PERSON . , ORG and ORG to be called as witnesses , arguing that they had ill - treated him in the course of arrest and in the course of his initial interrogation , causing the injuries recorded in the medical expert ’s report of DATE . The trial court refused those requests . According to the ORG , the grounds for the refusal were that the trial court had in its possession the transcripts of the interviews with the police officers in question conducted during the pre - trial investigation . Moreover , the trial court considered that the applicant ’s allegations of ill - treatment had already been examined within the framework of pre - investigation enquiries , in the course of which no corroboration of the applicant ’s allegations had been found .

On DATE the trial court convicted all CARDINAL applicants of murder , of aggravated burglary , and of theft of documents . In respect of the conviction for murder the applicant was sentenced to life imprisonment with confiscation of all of his property , GPE to DATE and GPE to DATE imprisonment . Additional prison sentences were imposed in respect of the other charges but because of the sentencing rules , the overall sentences imposed were the same as the sentences for murder .

The court found it established that the applicant and his CARDINAL co - defendants , GPE and GPE , had committed aggravated burglary of Mr N. and PERSON While it was the applicant who had stabbed PERSON to death , all the defendants had used violence against ORG to overcome his resistance and so were guilty of his murder . As evidence of the applicant ’s guilt the court referred to the testimony of the co - defendants , of PERSON , PERSON , Ms M.M. , Ms A.V. ( see paragraphs DATE , DATE and DATE above ) , and of a number of other witnesses who had described how the defendants had disposed of their clothing and of the objects taken from the GPE house . The court also relied on physical and expert evidence . In reaching its finding that it had been the applicant who had stabbed PERSON , the court referred to the testimony of his co - defendants , noting that it was consistent with P. ’s testimony to the extent that all CARDINAL had testified , contrary to the applicant , that it was PERSON , and not the applicant , who had attacked P. The court also referred to the DNA expert evidence which had found blood , possibly originating from ORG , on the trousers worn by the applicant on TIME of the murder and seized by the police at the house where the applicant had left them . The court also referred to the applicant ’s admission during the pre - trial investigation that he had used the knife , that is the murder weapon , to cut paintings out of their frames .

On DATE ORG upheld the applicant ’s conviction and mitigated his sentence to DATE imprisonment .

On DATE the applicant wrote to the head of ORG of GPE in GPE complaining that he had been illtreated in the course of his arrest and afterwards by the police . In particular , he stated that on DATE of his arrest he had been going to a meeting with a certain PERSON when he had been approached by a stranger , who had turned out to be a police officer . Thinking that the stranger was trying to steal his phone , the applicant started running away . However , other officers tripped him up . He fell and the officers started kicking and punching him . The police officers continued to kick him once he was in their car and subsequently , in the place to which he was taken after his arrest .

On DATE the Chervonograd prosecutor ’s office and on DATE the DATE prosecutor ’s office refused to institute criminal proceedings in connection with the applicant ’s complaint .

On DATE the Lviv regional prosecutor ’s office ( “ the LRPO ” ) quashed the decisions of DATE and CARDINAL DATE and remitted the case to the ORG prosecutors for further examination . The ORG concluded that the pre - investigation enquiries had been incomplete . The ORG indicated that the Chervonograd prosecutor ’s office should undertake a number of additional measures to establish the circumstances of the incident , most notably : ( i ) interview PERSON whom the applicant had been going to meet when he had been arrested ; ( ii ) identify the ambulance staff who had visited the applicant on DATE and interview them ; ( iii ) interview the forensic medical expert to find out whether the injuries observed by the expert on the applicant on DATE were consistent with the applicant ’s allegations of ill - treatment .

On DATE the ORG prosecutor ’s office again refused to institute criminal proceedings against detectives I.Kot . , PERSON . , ORG , ORG . The decision was based on the statements of the police detectives and the expert report of DATE . The detectives had stated that they had tripped up the applicant while he had been attempting to escape . The prosecutor ’s office concluded that that fall explained the applicant ’s injuries . On DATE ORG upheld that decision , rejecting as unsubstantiated the applicant ’s argument that his injuries had resulted from ill - treatment .

On DATE the Pustomyty prosecutor ’s office refused to institute criminal proceedings against the investigator PERSON . and CARDINAL other officers of ORG . The decision was based on the interviews with the officers . The prosecutor ’s office also referred to the ORG records and an unspecified forensic medical expert report , according to which the applicant had had no injuries at the relevant time . The applicant was informed of that decision on CARDINAL DATE .

On an unspecified date the decision of DATE was overruled .

On DATE the Pustomyty prosecutor ’s office again refused to institute criminal proceedings against the police officers of ORG and of ORG for lack of corpus delicti in their actions . The decision was based on the statements of the officers , who had denied the applicant ’s allegations .

On DATE ORG quashed the decision of CARDINAL DATE . The court found numerous omissions in the pre - investigation inquiry , in particular that the authorities had failed to explore under what circumstances an ambulance had been called for the applicant while he had been in the ORG ; they had also failed to examine the records from the facilities where the applicant had been detained .

On DATE a new Code of Criminal Procedure came into force . Under the new Code an investigation is commenced by creating an entry in ORG ( “ the Register of Investigations ” ) ( see paragraph CARDINAL below ) .

On DATE ORG granted the applicant ’s claim and ordered the LAW prosecutor ’s office to create an entry in ORG in order to investigate the applicant ’s allegations of ill - treatment .

On DATE the entry was created .

On DATE the FAC prosecutor ’s office decided to discontinue the investigation . On an unspecified date ORG overruled that decision .

On DATE the ORG prosecutor ’s office reopened the investigation and the applicant was questioned . He insisted that he had been ill - treated by police detectives I.Kot . , PERSON . , ORG and ORG in the course of his arrest and on the way to the NORP police station , where his arrest had been recorded . The police detectives were interviewed and denied any ill - treatment , insisting that the applicant had been injured when he had fallen while trying to flee .

On DATE the Chervonograd prosecutor ’s office decided to discontinue the investigation for lack of corpus delicti in the actions of detectives I.Kot . , PERSON , ORG and ORG The decision referred to an earlier decision of DATE to refuse to institute criminal proceedings , according to which the applicant had fallen while trying to flee from the police . As a result , he had sustained concussion and bruises . The decision also referred to a number of pieces of evidence supporting that version of events , most notably the statements of the police officers and the medical expert ’s report of DATE .

The decision of CARDINAL DATE was upheld by ORG on DATE and by ORG on DATE .


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE . On DATE the ORG convicted him of murder and sentenced him to DATE and CARDINAL months’ imprisonment . Since DATE he has been serving the sentence in correctional colony no . IK-CARDINAL , in GPE , GPE Region .

According to the applicant , his eyesight began deteriorating in DATE . In DATE he complained about this to a resident colony doctor .

DATE the applicant was examined by an ophthalmologist , who visited the detention facility . The doctor diagnosed an “ almost mature ” cataract of the right eye and a focal cataract of the left eye . An in - depth medical examination in a hospital was recommended .

On DATE the applicant was sent to a prison hospital for an examination by an ophthalmologist . The ophthalmologist confirmed the presence of cataracts on both eyes . He established that the patient had lost his vision in his right eye and prescribed cataract surgery . It was noted that owing to the lack of intraocular lenses in stock and the overcrowding of the facility , the surgery would have to be performed later , in a “ planned manner ” .

The applicant was sent back to the detention facility , the ophthalmologist having recommended that the applicant undergo another eye examination DATE .

On DATE the applicant complained about the quality of medical assistance he had received to ORG in GPE . His complaint was then referred to the medical unit of his detention facility , which dismissed it in a letter dated DATE , stating that the patient had been provided with medical assistance in full .

NORP In DATE the applicant was seen by the head of the medical unit and put on a waiting list for admission to the ophthalmological department of the prison hospital for a medical examination and eye surgery .

On DATE the applicant was seen by an ophthalmologist . The doctor endorsed the advice that the applicant had received on DATE and confirmed that he needed cataract surgery .

On DATE and DATE the applicant underwent repeated eye examinations , which revealed that the cataract on his left eye was growing . The need for surgery was again noted . The surgery was performed in the prison hospital on DATE .


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

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

The applicants complained that they had been unfairly convicted of drug offences following entrapment by ORG agents .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

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

On DATE a DATE old woman , PERSON , went to a party in PERSON , a small town , and never returned home .

On DATE her relatives reported her disappearance to the police .

Having questioned a number of witnesses , the police established that PERSON had left the party with her cousin NORP and the applicant , CARDINAL of his friends . At TIME on DATE PERSON , NORP and the applicant were seen drinking beer in a café . Several witnesses stated that while the applicant had been in the café he had carried a certain “ pennant ” of a mobile operator company . Shortly afterwards , a witness saw the applicant walking down a road with his arms around PERSON After that nobody saw PERSON

R. told the police that in the morning on DATE he had left PERSON with the applicant and had gone to work .

On an unspecified date DATE the police questioned the applicant as a witness in connection with PERSON ’s disappearance . During that questioning the applicant said that in TIME on DATE he had left PERSON with CARDINAL unknown men , had taken a taxi at a taxi stand and had gone home . Police officer PERSON brought the applicant to the taxi stand and asked the taxi drivers whether they had seen him on DATE . The taxi drivers did not recognise the applicant and the applicant could not indicate the car and the driver who had allegedly driven him on DATE . He also could not provide any details about the appearances of the car or the driver .

After the applicant ’s questioning as a witness and the visit to the taxi stand ( see paragraph CARDINAL above ) , on DATE the police detained the applicant for an “ offence of minor public disorder ” and placed him in a cell at the Novy Sanzhary Police Station . Before the ORG and the trial court the applicant submitted that he had not committed any such offence and had been placed in the cell without any reasons . No further information about the nature of the offence in question was made available to the ORG .

Before the ORG the applicant stated that on CARDINAL and DATE , while he had been kept in the cell , police officers had beaten him and threatened him urging him to “ tell the truth ” about PERSON ’s disappearance . The material in the case file ( namely , a copy of the applicant ’s indictment ) contains reference to the statements of police officers NORP and PERSON saying that on DATE , while the applicant was in the cell at the Novy Sanzhary Police Station , they questioned him without a lawyer in connection with K’.s disappearance . On DATE they questioned him again on the same issue without a lawyer and he confessed to PERSON ’s murder , robbery and rape .

On DATE during the questioning by I. and F. the applicant made a written statement saying that in the morning on DATE , after NORP had left , he had decided to walk PERSON home . As he and PERSON had been walking down a road , he had tried to hug her but she had struck him in the groin . He had reacted by suddenly grabbing her by the neck with his CARDINAL hands and holding her for TIME . PERSON had fainted so he had let her go . After that he had dragged her body into some bushes , pulled down her knickers , bra and t - shirt and had raped her . After that he had taken CARDINAL NORP hryvnias ( MONEY ) from her wallet and had left . As he had been leaving , PERSON had been unconscious , but he had not known whether she had been dead or alive , he had had no intention to kill PERSON when he had grabbed her neck but he had realized that such actions could theoretically result in her death . I. and PERSON passed the applicant ’s written confessions to investigator PERSON from the local prosecutor ’s office .

Still on DATE investigator PERSON opened a criminal case against the applicant for the rape , robbery and murder of PERSON and read him his procedural rights as a suspect , including his rights of defence . The applicant confirmed in writing that he understood his rights . PERSON also arrested the applicant on suspicion of murder , robbery and rape .

TIME investigator PERSON carried out a reconstruction of events in the presence of the applicant , attesting witnesses PERSON and PERSON , and a forensic medical expert , PERSON The applicant showed them the place where he had grabbed PERSON by the neck and her body lying in the bushes . The experts and the investigator inspected the crime scene and collected physical evidence . Investigator PERSON kept written TIME of the inspection of the crime scene . He noted that the corpse was heavily damaged from decay , worms and insects , it was lying face up with legs spread apart . PERSON ’s bra , t - shirt and knickers were pulled down . Near the corpse the police found a pennant of a mobile operator company and ORG open wallet .

On DATE after the reconstruction of events , investigator PERSON questioned the applicant in his capacity as a suspect without a lawyer being present . The applicant confirmed his previous statements .

In his application form the applicant stated that for the first time he had been allowed to see a lawyer on DATE . However , from the material in the case file , the authenticity of which the applicant did not dispute before the ORG , it follows that on DATE the investigator PERSON appointed lawyer PERSON to represent the applicant under the legal aid scheme and questioned the applicant in his presence . The applicant confirmed that he had strangled PERSON with both hands , taken CARDINAL hryvnias from her wallet , put her body in the bushes , pulled down her clothes and raped her .

On DATE was appointed as the applicant ’s lawyer instead of GPE at the request of the applicant ’s father . The applicant confirmed in writing that he wished to have PERSON as his lawyer .

DATE the police conducted a further reconstruction of events which the applicant , lawyer PERSON , CARDINAL attesting witnesses and CARDINAL forensic medical experts took part in . The applicant confirmed that he had strangled PERSON with both hands , and that after she had fainted he had put her body in the bushes , taken CARDINAL hryvnias from her wallet , pulled down her clothes and raped her . During the reconstruction , he told the medical experts that he had not been ill - treated by the investigative authorities .

On DATE the applicant was questioned again without a lawyer . Before the questioning he noted in writing that he did not object to being questioned without a lawyer . He described the clothes he had worn on DATE of the murder and said that after the murder the clothes had been washed . The police seized the clothes in question from the house of the applicant ’s parents .

On DATE the applicant was examined by a forensic medical expert , who observed no injuries and reported no complaints .

On DATE the investigator read the applicant his procedural rights as an accused , including his rights of defence . The applicant indicated that he wanted to have S. as his lawyer .

DATE the applicant was charged with rape , robbery and murder . He was questioned in lawyer PERSON ’s presence and confirmed having strangled PERSON with both hands , taken CARDINAL hryvnias from her , put her body in the bushes , pulled down her clothes and raped her .

Forensic examinations conducted in DATE and DATE revealed that PERSON had died because she had been strangled by the neck on both sides . The forensic experts did not find on the corpse any forensic evidence ( fingerprints , body fluids , genetic material , and the like ) originating from the applicant . No such evidence was discovered on the crime scene either . The experts also found no forensic evidence of rape on the body because its soft tissues had been destroyed by decay and worms . However , in their report the forensic medical experts noted that the corpse ’s position and the fact that the clothes on it had been displaced proved that PERSON had been raped .

On DATE the applicant confirmed that he wished to have S. as his lawyer . Later that day he was questioned in S. ’s presence and said that he had not intended to kill or rape PERSON He had only decided to rape her after she had fainted . He said that he had not taken CARDINAL hryvnias from PERSON ’s wallet . In fact , he had seen CARDINAL hryvnias on the ground near her body , decided that they had fallen from his own pocket and had taken them . He also said that he had given his earlier statements voluntarily without being physically or psychologically coerced into doing so .

Witnesses questioned during the pre - trial investigation stated that the pennant found on the crime scene looked exactly as the one which they had seen on the applicant in the morning on DATE ( see paragraph CARDINAL above ) . The applicant did not deny that it was the same pennant .

On DATE the investigator granted the applicant ’s request to have his mother appointed as his representative .

On DATE the applicant was informed that the pre - trial investigation was completed and the indictment was drafted . The applicant was allowed to study the case file with S. and his mother .

On DATE the case was sent for trial to ORG .

On DATE , during a court hearing at which lawyer PERSON was present , the applicant stated that after PERSON had kicked him in the groin he had suddenly struck her on the neck with one hand . She had fainted and he had put her body in the bushes and left . He denied having strangled PERSON with his CARDINAL hands , robbed her , pulled down PERSON ’s clothes , and raped her . He submitted that the police had detained him DATE before DATE , kept him in a cell and ill - treated him until he agreed to confess to the murder , robbery , and rape .

The court ordered the prosecution authorities to conduct a preinvestigation inquiry into the applicant ’s allegation of ill - treatment .

On DATE the ORG prosecutor ’s office refused to institute a criminal investigation into the applicant ’s complaint of illtreatment after questioning PERSON and NORP , who denied that they had subjected him to any pressure . Copies of the written TIME of the questioning of F. and I. are not available to the ORG .

The applicant requested ORG to send his case for additional investigation on the ground that his right to defence had been restricted on DATE when he had been questioned without a lawyer . On DATE the ORG rejected that request noting that although the applicant ’s right to legal assistance had indeed been restricted on DATE , the situation had been remedied because starting from DATE the applicant had been represented by a lawyer and confirmed his self - incriminating statements in his presence .

The court questioned PERSON and NORP and the attesting witnesses present during the reconstruction of events on DATE . They all denied that the applicant had been coerced . The forensic experts who had examined ORG ’s body were questioned by the court ; they refuted the applicant ’s claim that he had struck the victim once on the neck . They said that her injuries proved that she had died because she had been strangled by the neck on both sides , in the exact same way the applicant had described during the pre - trial investigation .

Being questioned at a court hearing in the presence of a lawyer the applicant stated that he had involuntarily killed PERSON by striking her with one hand , he had not strangled , robbed or raped her . According to him , the police had pulled down PERSON ’s clothes , put her body face up and spread her legs because they wanted to accuse the applicant of her rape .

On DATE the NORP ORG of Appeal convicted the applicant of robbery , rape , and murder of PERSON and sentenced him to DATE imprisonment . The court found that the applicant had wanted to rob and rape PERSON and had strangled her in order to supress her resistance . The court referred to the statement which the applicant had made in the presence of his lawyer , TIME of the inspection of the crime scene on DATE , the results of the forensic examination of PERSON ’s body and other material evidence found on the crime scene , forensic expert ’s statements made before the court , and statements of witnesses who on DATE had first seen the applicant with NORP and PERSON and then later with PERSON alone walking down the road . The court also noted that the pennant which the applicant had with him when he had been in the café ( see paragraph CARDINAL above ) had been later found on the crime scene . The court also referred to the statements of witnesses who had seen that on DATE PERSON had with her a note of CARDINAL hryvnias . The conclusion that PERSON had been raped was made having regard to the position of PERSON ’s body when it had been discovered by the police and the fact that her clothes had been pulled down . In its reasoning the court did not refer to the clothes which the applicant described on DATE ( see paragraph CARDINAL above ) as an evidence of his guilt . However , in the operative part of the judgment the court ordered the police to return the clothes to the applicant ’s mother . As to the applicant ’s allegation of ill - treatment , the court dismissed this as unsubstantiated referring to the prosecutor ’s decision of CARDINAL DATE .

The applicant appealed to ORG . He complained , in particular , that the trial court had relied on his confessions extracted under duress and without a lawyer .

On DATE ORG upheld the judgment of DATE . It noted , in particular , that when convicting the applicant the trial court had mainly relied on the statements which he had made in the presence of the lawyer PERSON DATE .

In a letter to ORG in DATE , the applicant described the conditions of his detention in PERSON . He stated that he had been held there since DATE in a cell measuring QUANTITY with CARDINAL other inmates . The window had been covered by a plastic sheet making it impossible to open . Because of this no fresh air had entered the cell and in DATE , the temperature would sometimes reach CARDINAL He had never been allowed to leave the cell . The food had been inadequate .

The applicant submitted photos of a building which he claimed was PERSON . The windows appear to have bottom - hinged shutters made of transparent plastic . On the photographs the shutters are open , and there are QUANTITY of space between the window and shutter and the shutter and wall .

The Government submitted that during his detention in the GPE , the applicant had been held in various cells and it was unclear which of them he had been referring to in his letter to the ORG . From DATE to CARDINAL DATE he had been detained with CARDINAL other detainees in cell no . CARDINAL , which measured QUANTITY . He had therefore enjoyed QUANTITY of personal space . From DATE to CARDINAL DATE he had been detained with CARDINAL other inmates in cell no . CARDINAL , which measured QUANTITY . The space allocation for CARDINAL person had therefore been QUANTITY . Both cells were equipped with CARDINAL beds . The GPE windows could be opened and had not been blocked with plastic sheets . The food the applicant had received met the standard set by domestic law . The Government did not deny that the applicant had been unable to leave the cells he had been held in .


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)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in PERSON .

Following a dispute with a private third party , the applicant initiated compensation proceedings .

On DATE ORG granted the applicant compensation , amounting to MONEY ( TRY ) ( MONEY ( ORG ) ) . In the operative part of the judgment , the court indicated that the defendant party had to pay TRY MONEY ( approximately EUR CARDINAL ) for court fees pursuant to the PERSON on Charges . The court registry accordingly sent a payment order to the defendant party . However , no payment was made .

On DATE the applicant submitted a petition to the registry of the first instance court , requesting that the judgment be served on her in order to commence enforcement proceedings . On DATE , the court rejected the request on the ground that it was impossible under Section CARDINAL(CARDINAL ) ( a ) of the Law on Charges ( Law no . CARDINAL ) to serve a copy of the judgment unless the court costs that should have been born by the defendant party had been discharged .

At the time when the application was introduced , the applicant had therefore been unable to bring enforcement proceedings in order to have the above - mentioned judgment executed unless she herself was willing to pay the court fees that the defendant party had failed to pay .

Following the introduction of the present application with the ORG , the domestic legislation was amended ( see paragraphs CARDINAL - CARDINAL below ) , and subsequently the judgment in question was served on the applicant . In the absence of an appeal , the judgment became final on DATE . On DATE the applicant initiated enforcement proceedings against her debtor . On DATE the applicant further requested the enforcement office to place a lien on the debtor ’s property . According to the documents in the file , as of DATE the debt , which is still not enforced , amounts to TRY CARDINAL ( approximately ORG CARDINAL ) including the initial amount of compensation awarded by the domestic court plus interest running at statutory rate .


No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Georges Ravarani

The first and second applicants were born in DATE and DATE respectively and live in LOC . They are wife and husband .

On DATE the first applicant , who was DATE pregnant and already past her due date , was admitted to the obstetrics and gynaecology ward of ORG .

On TIME she was given medication in order to induce labour , but the medication was subsequently discontinued and she was given sedatives . In TIME her waters broke . The doctors noticed that the heartbeat of the foetus was weak and decided to perform a Caesarean section . Following the surgery , the first applicant gave birth to a daughter . The newborn baby was in a serious condition , so she was taken to a hospital in GPE for intensive care .

On CARDINAL DATE the baby died . The applicants decided not to have an autopsy performed on her body – according to them , they were informed by doctors that an autopsy was not necessary . The Government contested this and submitted that the applicants had been informed that an autopsy had been necessary but refused it nonetheless .

Following the baby ’s death , ORG conducted an internal inquiry into the medical services provided to the first applicant . The inquiry report , issued on DATE , found that some erroneous entries had been made in the first applicant ’s medical file , the assessment of her and the baby ’s condition had probably been inadequate , and certain actions to resuscitate the baby had been taken too late .

At the ORG request , ORG also conducted an inquiry into the medical services provided to them at ORG . A provisional report , issued on DATE , found that the first applicant ’s labour had not been induced in compliance with the relevant rules , the condition of the foetus had not been properly monitored , there had been shortcomings in the resuscitation of the baby , and CARDINAL of the doctors ( PERSON ) had not been properly qualified to provide obstetric services . The report issued a series of recommendations to the hospital , and also suggested that ORG conduct a more in - depth inspection of the medical services at ORG .

ORG issued its report on CARDINAL DATE , in which it identified several shortcomings in the work of doctors who had provided care to the first applicant , and concluded that the medical services had been inadequate .

Subsequently , doctor PERSON was dismissed from ORG , and the hospital stopped providing obstetric services , citing a lack of qualified medical personnel . PERSON , a gynaecologist , and CARDINAL other doctors were officially reprimanded for having provided inadequate medical services to the first applicant and PERSON was later dismissed at her own request .

On DATE the applicants asked the NORP district prosecutor ( hereinafter “ the prosecutor ” ) to open a pre - trial investigation into the medical negligence at ORG which had led to their newborn daughter ’s death . The pre - trial investigation was opened on DATE and carried out by the LOC police . In DATE and DATE the applicants were interviewed and granted victim status in the investigation .

On DATE a court - appointed doctor delivered a specialist opinion ( specialisto išvada ) that the applicants’ daughter ’s death had resulted from asphyxia during birth and meconium aspiration syndrome .

In DATE and DATE the police interviewed the doctors who had provided medical services to the first applicant , and obtained various documents from ORG .

In DATE the applicants asked the prosecutor to exhume their daughter ’s body so that an autopsy could be performed and the cause of her death could be more precisely determined . However , the prosecutor denied their request , relying on an opinion from medical experts that performing an autopsy DATE after the baby ’s death would not give any results because of the significant post - mortem changes to the body during that time .

NORP In DATE the police asked CARDINAL court - appointed doctors for a specialist opinion on the causes of the baby ’s death and the actions of the doctors at ORG . The applicants also submitted questions and their questions were forwarded to the specialists . The opinion , delivered on CARDINAL DATE , stated that no causal link between the ORG actions and the death could be established , and that it was not possible to determine whether the death could have been avoided because an autopsy of the body had not been performed . Subsequently , the applicants asked the police to order another opinion from specialists , and they submitted additional questions . On DATE CARDINAL other court - appointed doctors provided answers to the applicants’ questions . Their overall conclusions were the same as those of the previous specialists .

On DATE the prosecutor discontinued the pretrial investigation on the grounds that no causal link between the actions of the doctors at ORG and the baby ’s death had been established . On DATE a senior prosecutor upheld that decision , but on DATE ORG upheld a complaint submitted by the applicants and reopened the pre - trial investigation . The court found that the CARDINAL specialist opinions ( see paragraph CARDINAL above ) had not answered some of the questions submitted because certain medical data had not been made available . It also found that the investigation had not established why an autopsy had not been performed ( see paragraph CARDINAL above ) . Therefore , the court ordered the prosecutor to ask additional questions of some of the witnesses and order a comprehensive forensic examination .

On DATE the prosecutor asked the court to order a forensic examination of the causes of the baby ’s death and the causal link between the ORG actions and the death . The applicants submitted a list of additional questions to be forwarded to the forensic expert . On DATE ORG ordered the examination , but that order included only the prosecutor ’s questions and did not provide any reasons as to why the applicants’ questions had not been included . The applicants appealed against it , but on DATE ORG dismissed their appeal on the grounds that deciding which questions to forward to the expert was the lower court ’s prerogative .

On DATE the applicants again submitted their questions to the prosecutor and asked for an additional forensic examination . On DATE ORG ordered an additional forensic examination , and that order included the applicants’ questions . However , the court ’s order was only forwarded to the forensic expert on CARDINAL DATE .

On DATE a court - appointed forensic expert delivered the answers to the prosecutor ’s questions ( see paragraph CARDINAL above ) . The expert found that the cause of the baby ’s death had been determined correctly , the medical services provided to the first applicant had been adequate , and there was no causal link between the ORG actions and the death .

On DATE the applicants submitted a complaint to ORG , stating that the pre - trial investigation was being conducted inefficiently and with undue delays . They complained , in particular , that the court ’s decision of DATE to order an additional forensic examination ( see paragraph CARDINAL above ) had not been forwarded to the expert until DATE , DATE and DATE after it had been issued . ORG conducted an official inquiry , which on DATE concluded that NORP prosecutors had committed disciplinary violations , and that the pre - trial investigation had not been properly conducted and supervised . The inquiry found that the LOC district prosecutor ’s office had been reorganised in DATE , which was the likely reason for the above - mentioned shortcomings . No individuals were penalised .

On DATE a court - appointed forensic expert delivered the answers to the applicants’ questions ( see paragraph CARDINAL above ) . Among other things , the expert found that some of the LOC actions had not been in line with the relevant requirements , but there was no direct causal link between their actions and the ORG daughter ’s death .

On DATE the prosecutor discontinued the investigation on the grounds that no causal link between the actions of the doctors at ORG and the ORG daughter ’s death had been established ( see paragraphs DATE , CARDINAL and DATE above ) . The applicants appealed against that decision , and on DATE a senior prosecutor reopened the pretrial investigation and assigned it to a different police department . The senior prosecutor considered that , following the decision to discontinue the investigation , new relevant circumstances had emerged , although he did not specify what those circumstances were .

On DATE PERSON , the gynaecologist , was served with a notice that , under Article CARDINAL of LAW , she was suspected of having failed to perform her official duties ( see paragraph DATE below ) . On DATE the case was referred to ORG for examination on the merits .

On DATE ORG held an oral hearing . PERSON was not present and her lawyer informed the court that she had been admitted to hospital , although no medical certificate was submitted . The court adjourned the case until DATE .

On DATE PERSON was again not present , and the court received a medical certificate confirming her hospitalisation until DATE . The court decided to adjourn the case and proposed CARDINAL alternative dates : CARDINAL DATE , DATE and DATE . PERSON ’s lawyer stated that PERSON would not be well enough by DATE , and that on the later dates he would be unable to represent her . The court adjourned the case until DATE .

On DATE the applicants applied to the court to reclassify the charges against ORG as negligent homicide in violation of special conduct security rules under LAW ( see paragraph CARDINAL below ) . The court adjourned the case until DATE in order to give the accused enough time to acquaint herself with the case file .

On DATE ORG terminated the case on the basis that it was time - barred . It held that PERSON had been charged with a crime of negligence , and the DATE statutory limitation period had ended on DATE ( see paragraphs CARDINAL above and CARDINAL below ) . The court also dismissed the application to reclassify the charges and noted that , in any event , reclassification would not alter the statutory limitation period .

The applicants appealed against that judgment . They submitted that , in line with LAW , the statutory limitation period must have been suspended while the examination of the case had been adjourned owing to ORG illness ( see paragraph CARDINAL below ) .

On DATE ORG dismissed the applicants’ appeal and upheld the judgment of the first - instance court . It firstly held that the legal provision cited by the applicants had been adopted after the alleged offence had been committed , and that at the time the alleged offence had been committed domestic law had not provided for suspension of the statutory limitation period during the adjournment of a case ( see paragraphs CARDINAL - CARDINAL below ) . The court further held that , in any event , the examination of the case had been adjourned for an important reason PERSON ’s hospitalisation – so there were no grounds for suspending the statutory limitation period .

On DATE ORG refused to examine a cassation appeal lodged by the applicants , on the grounds that it did not raise any important legal questions .

The Government in their observations informed the ORG that on DATE the applicants instituted civil proceedings against ORG , claiming compensation in respect of pecuniary and nonpecuniary damage caused by inadequate medical services provided to the first applicant and their newborn daughter . They revised their claim in DATE and DATE . The applicants claimed a total of CARDINAL NORP litai ( LTL – approximately MONEY ( ORG ) ) in respect of non - pecuniary damage and a total of LTL CARDINAL ( approximately ORG CARDINAL ) in respect of pecuniary damage , consisting of funeral expenses and the second applicant ’s lost earnings during his time off work after their daughter ’s death .

On DATE ORG granted the applicants’ claim in part . Relying on the available inquiry reports , as well as the specialist opinions and results of the forensic examinations delivered in the criminal proceedings ( see paragraphs CARDINAL , DATE , DATE , DATE , DATE and DATE above ) , the court held that the doctors at ORG had breached their duty of care and that their actions “ had contributed ” ( turėjo įtakos ) to the death of the ORG daughter , so there were grounds for the hospital incurring civil liability . However , the court considered that the ORG actions had not been premeditated or grossly negligent , so the ORG claim in respect of non - pecuniary damage was granted in part , and they were awarded a total of LTL CARDINAL ( approximately EUR CARDINAL ) under that head . They were also awarded a total of LTL CARDINAL ( approximately EUR CARDINAL ) in respect of pecuniary damage , on the basis of the documents in the court ’s possession .

The applicants and the hospital appealed against that judgment , but on DATE ORG upheld the lower court ’s findings . The hospital transferred the awarded amount to the applicants’ bank accounts in DATE .


CASE OF RAMOS NUNES DE CARVALHO E SÁ v. PORTUGAL

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Disciplinary proceedings;Article 6-1 - Impartial tribunal;Independent tribunal;Public hearing);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

On DATE ORG of the Judiciary ( FAC , “ FAC ) instituted disciplinary proceedings against the applicant , who at the time was a judge at FAC ( disciplinary case no . CARDINAL/CARDINAL ) .

On DATE the judicial inspector F.M.J. , who was in charge of the disciplinary proceedings , made his submissions , proposing that the applicant be ordered to pay CARDINAL day - fines for having called another judicial inspector , Judge PERSON , a “ liar ” during a telephone conversation , in breach of her duty of propriety . He also found that she had accused ORG , who was responsible for conducting her performance appraisal , of “ inertia and lack of diligence ” .

On DATE the applicant submitted a request to the HCJ for Judge PERSON to be withdrawn from her case on the grounds that he had breached her right to be presumed innocent and had close ties to the judicial inspector whom the applicant had allegedly insulted .

On an unspecified date the applicant filed her pleadings , submitting that the disciplinary proceedings should be declared null and void as there had been a breach of the principles of equality and impartiality and of her right to be heard .

On DATE Judge PERSON requested leave from the HCJ to withdraw from the case , saying that he was the applicant ’s “ sworn enemy ” following the accusations she had made against him in the context of her request for him to withdraw .

On an unspecified date the HCJ granted Judge PERSON ’s request and replaced him with a different inspector , Judge PERSON

NORP In his final report dated DATE the newly appointed inspector Judge PERSON proposed that the applicant be ordered to pay DATE - fines for acting in breach of her duty of propriety .

During the proceedings a witness called by the applicant gave evidence . He stated that he had been present during the conversation in question and that the applicant had not made the alleged remarks .

In a decision of DATE the HCJ , sitting in plenary , ordered the applicant to pay CARDINAL day - fines , corresponding to DATE without pay , for acting in breach of her duty of propriety . The HCJ found that it was not appropriate to suspend the fine in the applicant ’s case .

The formation of the HCJ which made the order against the applicant comprised CARDINAL members , of whom CARDINAL were judges and CARDINAL were nonjudicial members .

QUANTITY of the non - judicial members issued a joint dissenting opinion expressing the view that it was not possible to establish in the present case , solely on the basis of ORG ’s statement , that the applicant had called him a “ liar ” , and finding that the remarks referring to his “ inertia ” and “ lack of diligence ” came within the scope of the applicant ’s freedom of expression .

On an unspecified date the applicant lodged an appeal on points of law with ORG of ORG ( PERSON do Supremo Tribunal de Justiça ) , requesting a review of the establishment of the facts . In support of her request the applicant argued that the penalty imposed on her had been disproportionate .

On DATE ORG of ORG unanimously upheld the HCJ ’s decision , finding in particular that

( i ) there was no doubt as to how the rules of NORP law were to be interpreted , with the result that the request to seek a preliminary ruling from ORG of ORG should be rejected ;

( ii ) ORG task was not to review the facts of the case but simply to verify whether the establishment of the facts had been reasonable ;

( iii ) the applicant had made use of false testimony , a fact that should count against her in determining the penalty to be imposed ;

( iv ) the administrative authority handling the case had not been required to assess whether the fine should be suspended since the present case did not involve a custodial sentence ;

( v ) the accusations of “ inertia ” and “ lack of diligence ” which the applicant had made against the judicial inspector ORG had insulted him , falling short of the minimum ethical standards expected from a judge , and had not come within the scope of freedom of expression .

A second set of disciplinary proceedings ( case no . TIME ) was opened against the applicant for use of false testimony in the earlier proceedings .

On DATE the judicial inspector , Judge GPE , filed submissions against the applicant , accusing her of breaching her duty of loyalty . He did not propose any specific penalty .

On DATE GPE submitted his final report , proposing that the applicant be suspended from her duties for DATE .

On DATE the applicant raised a plea of nullity with the judicial inspector in respect of this report , complaining that the penalty in question had not been proposed directly in his submissions . By order of CARDINAL DATE GPE rejected the applicant ’s plea .

By a decision of CARDINAL DATE the HCJ , sitting in plenary , ordered that the applicant be suspended from her duties for DATE for acting in breach of her duty of honesty . The HCJ considered that the applicant had given false testimony by asking a witness whom she had called in disciplinary case no . CARDINAL/CARDINAL to make false statements concerning the allegations against her . The HCJ established the facts taking into account the applicant ’s mobile phone records , which had been obtained with her consent at the request of the judicial inspector F.M.J.

The DATE ’s decision of DATE was taken unanimously , with CARDINAL of its CARDINAL members present . Of these , CARDINAL were judges , including the President of the HCJ , and CARDINAL were non - judicial members .

On an unspecified date the applicant appealed to ORG of ORG against the decision of DATE . She disputed the facts , alleging that

( i ) she had not been given a hearing on the subject of the proposed disciplinary penalty , as it had not been specified in the submissions ;

( ii ) the HCJ had altered the legal classification of the acts she had allegedly committed and the circumstances of her involvement in the disciplinary offence ;

( iii ) ORG had omitted to give reasons for its decision not to suspend enforcement of the penalty imposed ;

( iv ) the penalty imposed had been disproportionate .

In a judgment of CARDINAL DATE ORG of ORG unanimously upheld the decision of DATE on the grounds that

( i ) it had limited power to review the facts in so far as the appeal was an application to set aside rather than a full appeal on fact and law , regard being had to LAW ;

( ii ) adequate reference had been made to the proposed penalty in the judicial inspector ’s final report , of which the applicant had also been duly informed ;

( iii ) it had been open to the HCJ to increase the proposed penalty on the grounds that the applicant ’s defence related to the facts of the case rather than the proposed penalty ;

( iv ) with regard to the legal reclassification of the facts , the applicant ’s rights had been safeguarded since the HCJ , without altering the facts , had adopted a different legal interpretation of the duties that had been breached ;

( v ) the HCJ , which was in charge of the disciplinary proceedings , had not been required to assess whether the applicant ’s suspension from duty should be suspended , since no possible custodial sentence had been at stake in the proceedings and the HCJ had enjoyed a degree of discretion in that regard ;

( vi ) the penalty did not appear disproportionate ;

( vii ) in view of the false testimony given by CARDINAL witness in an attempt to protect the applicant , the HCJ had been entitled , in imposing a penalty , to take into consideration the fact that the applicant had had recourse to a third party in order to tamper with the evidence in the file .

A third set of disciplinary proceedings was instituted against the applicant ( case no . CARDINAL/CARDINAL ) for allegedly asking the judicial inspector , Judge F.M.J. , in the course of a private conversation , not to take disciplinary action against the witness who had given evidence on her behalf in the first set of disciplinary proceedings .

On DATE the judicial inspector , Judge PERSON , submitted his final report , proposing that the applicant be dismissed from her post for acting in breach of her duty of honesty .

In her pleadings the applicant admitted having had a private conversation with the judicial inspector , but denied having made such a request to him .

In a decision of DATE the HCJ , sitting in plenary , ordered that the applicant be suspended from duty for DATE for acting in breach of her duties of loyalty and propriety .

The decision of DATE was taken with CARDINAL of the CARDINAL members of the HCJ present . Of these , CARDINAL , including the President , were judges and CARDINAL were non - judicial members . CARDINAL of the judges issued a dissenting opinion to the effect that the facts as established , given their seriousness , warranted a penalty of early retirement or dismissal under LAW ( see paragraph CARDINAL below ) .

On an unspecified date the applicant appealed against that decision to ORG of ORG , requesting that a public hearing be held so that she could call a witness and present some documents . She complained of the legal reclassification of the facts , the fact that no reasons had been given for the refusal to suspend the penalty , and the disproportionate nature of her suspension from duty .

In a judgment of CARDINAL DATE ORG of ORG unanimously upheld the judgment of DATE , finding

( i ) that the applicant ’s request for a public hearing should be refused on the ground that it was not the task of ORG to review the establishment of the facts . Instead , its task was confined by law to verifying that the HCJ had complied with the principles and rules governing the examination of evidence , and in particular that its decision regarding the establishment of the facts had been coherent and reasonable ;

( ii ) that the applicant had produced lengthy pleadings , making it unnecessary to hear legal arguments in oral proceedings ;

( iii ) that the request for evidence to be taken from the witness had been aimed at establishing the content of the draft decision in the applicant ’s disciplinary case ; this ran counter to the confidentiality of the proceedings leading to the final decision ;

( iv ) that the documents submitted by the applicant had exceeded the scope of the disciplinary proceedings ;

( v ) that the HCJ had considerable discretion regarding issues relating to the law on the determination of the disciplinary offence , which was defined in broad terms in LAW , and that ORG could alter that legal classification only in the event of a manifest or gross error concerning the seriousness in disciplinary terms of the applicant ’s conduct ;

( vi ) that ORG could likewise not review the penalty imposed , but could only determine whether it had been appropriate to the offence and proportionate to it ;

( vii ) that ORG was not required to rule on the refusal to suspend the disciplinary penalty imposed , as the proceedings did not fall within the sphere of criminal law and no custodial sentence had been applied .

In its judgment of CARDINAL DATE ORG of ORG found as follows :

“ Whether or not a public hearing should be held at an individual ’s request in connection with a special administrative action to set aside an administrative act depends on the extent of ORG powers of review as regards the establishment of the facts . It is clear that a hearing devoted to the production of evidence and discussion of the facts would be useful and meaningful only if ORG had unlimited jurisdiction to review all the facts established by the impugned decision . If that were the case ORG would form its own opinion regarding the evidence and would examine new evidence , going well beyond a review of lawfulness .

However , as is clear from the uniform case - law of ORG , this option is not available in the light of ORG . ”

On DATE ORG of the Judiciary , sitting in plenary , after grouping together the penalties imposed on the applicant ( cúmulo jurídico das penas disciplinares aplicadas ) in the CARDINAL sets of disciplinary proceedings referred to above , unanimously imposed a single penalty of CARDINAL days’ suspension from duty .

The decision of DATE was final and was taken with CARDINAL of the CARDINAL members of the HCJ present . Of these , CARDINAL , including the President of the HCJ , were judges and CARDINAL were non - judicial members . The disciplinary penalty of CARDINAL days’ suspension from duty imposed on the applicant was enforced by the national authorities .


CASE OF DUBSKÁ AND KREJZOVÁ v. THE CZECH REPUBLIC

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The first applicant , PERSON , was born in DATE and lives in GPE . The second applicant , PERSON , was born in DATE and lives in GPE .

The first applicant gave birth to her first child in hospital in DATE without any complications . According to her , during the birth the medical personnel present were urging her to agree to undergo various kinds of medical intervention even though she had expressly stated her wish not to be subjected to any unnecessary medical treatment . She was also forced to give birth in a position she did not wish . She wanted to leave the hospital TIME after the birth as both she and the baby were healthy , but a doctor ordered her to stay in the hospital . She therefore did not leave until DATE , when she presented a letter from her paediatrician , who confirmed that she would take the child into her care .

In DATE the applicant became pregnant for the second time with an expected delivery date in DATE . The pregnancy was free from complications and the medical examinations and tests did not indicate any problems . Since she considered that giving birth in a hospital had been stressful for her , the applicant decided to give birth at home and searched for a midwife to assist at the birth . However , she was unable to find any midwife who was willing to assist her with a home birth .

On DATE she wrote to her health - insurance company and to ORG ( krajský úřad ) asking for help in finding a midwife .

On DATE the health - insurance company replied that NORP legislation did not provide for the possibility that a public health - insurance company might cover costs arising from home births and that it therefore had no contracts with any health professionals providing such services . Moreover , prevailing expert medical opinion did not approve of home births .

In a letter of CARDINAL DATE ORG added that the midwives listed in its register of health professionals were , in any event , only allowed by law to attend births at LOC possessing the technical equipment required by Decree no . CARDINAL and not in a private home .

Not having found any health professional to assist her , the applicant gave birth to her son alone at home on CARDINAL DATE .

On DATE she lodged a constitutional appeal ( ústavní stížnost ) claiming that she had been denied the possibility of giving birth at home with the assistance of a health professional , in violation of her right to respect for her private life .

On DATE ORG ( PERSON ) dismissed the appeal , holding that it would be contrary to the principle of subsidiarity for it to decide on the merits of the case because the applicant had not exhausted all the available remedies , which included an action for protection of personal rights under LAW and an application for judicial review under LAW of LAW . It nevertheless expressed its doubts as to the compliance of the NORP legislation with LAW and asked the relevant parties to initiate a serious and well - informed debate about new legislation . CARDINAL out of the CARDINAL judges attached to the decision their separate opinions , in which they disagreed with the reasoning behind it . Most of them considered that ORG should have dismissed the appeal as an actio popularis and should have refrained from expressing any views on the constitutionality of the legislation concerning home births .

The second applicant is the mother of CARDINAL children who were born at home in DATE and DATE with the assistance of a midwife . The midwives attended the births without any authorisation from the ORG .

According to the applicant , before deciding to give birth at home , she had visited several hospitals which had all refused her requests to deliver the baby without any medical intervention that was not strictly required by the situation . They had also refused to agree to her wish for uninterrupted contact with the baby from the moment of birth , as the regular practice was to take the child away from the mother immediately after the birth to be weighed and measured and for further medical observation lasting for TIME .

At the time of lodging the present application , the applicant was pregnant again , with an expected delivery in DATE . The pregnancy was free from complications and she again wished to give birth at home with the assistance of a midwife . However , she was unable to find a willing midwife because of the risk of a heavy fine if medical services were provided without authorisation . The applicant asked various authorities to help find a solution to her situation .

In a letter of CARDINAL DATE ORG replied that it did not provide medical services to individual patients and that the applicant should make enquiries with GPE ( Město Praha ) which , acting as a regional office , registered and issued authorisations to health professionals .

On DATE the applicant ’s health - insurance company informed her that the attendance of a health professional at a home birth was not covered by public insurance .

On DATE GPE informed the applicant that no midwife registered in GPE was authorised to assist with home births .

On DATE the applicant gave birth to a child in a maternity hospital in GPE , QUANTITY away from GPE . She had chosen that hospital because of its reputation for respecting the wishes of mothers during delivery . Nevertheless , according to her , not all her wishes had been respected . Despite the fact that both she and the child had been healthy and that no complications had occurred during the birth , the applicant had had to stay in the hospital for TIME . The newborn baby had been separated from her after the birth and before leaving the maternity hospital the remains of the child ’s umbilical cord had been cut off despite her wishes to the contrary .

In its bulletin no . CARDINAL/CARDINAL of DATE ORG published a practice guideline which stated :

“ Conducting a delivery in GPE is regarded as a healthcare provision that is provided only in a healthcare institution . Each healthcare institution must fulfil the statutory requirements ... and the requirements laid down by the relevant secondary legislation . ”

ORG ( Česká lékařská komora ) considers a home birth to be a procedure non lege artis because of the dangers associated therewith .

Almost all births in GPE currently take place in hospital , with PERCENT of births happening at home .

NORP In reaction to what has been perceived as an attempt to criminalise midwifery in some central and eastern NORP countries – in particular in GPE – the President of ORG and the President of ORG and ORG issued a joint statement on DATE in which they declared : “ There is strong evidence that out of hospital birth supported by a registered midwife is safe , and a preferred experience for many mothers . Women should not be denied this choice because of the lack of an adequate regulatory framework that makes it possible for midwives to practice their profession in any place that women choose to give birth . ”

On DATE ORG set up an expert committee on obstetrics with the objective of studying the issue of home births . There were representatives of care recipients , midwives , physicians’ associations , ORG , the ORG ’s Commissioner for Human Rights and public health - insurance companies . The representatives of the physicians’ associations boycotted the meetings , declaring that the current state of affairs was satisfactory and that , in their view , there was no need to change anything . Subsequently , ORG removed the representatives of care recipients , midwives and the ORG ’s Commissioner for Human Rights , with the argument that only by changing the committee ’s composition in this way would it be possible for it to agree on certain conclusions .

On DATE ORG ( Rada vlády pro rovné příležitosti žen a mužů ) , an advisory body to the Government , recommended the prevention of further discrimination against women in the enjoyment of their right to a free choice of the method and circumstances of giving birth and the place of delivery . It also recommended the prevention of discrimination against midwives by permitting them to practise their profession in full through their inclusion in the public health - insurance system . The ORG also referred to the recommendations of ORG ( see paragraph CARDINAL below ) , which monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women , to support its position that women should have a choice of where to give birth .

In its bulletin no . CARDINAL/CARDINAL published on DATE , which replaced the previous practice guideline of DATE ( see paragraph CARDINAL above ) , ORG described the procedure for providers of healthcare services when discharging newborns into their own social environment . It stated that the recommendation of specialists was that a newborn should be discharged from the maternity hospital no sooner than TIME after birth . The new procedure allows for the discharge of the newborn from the maternity hospital QUANTITY after the birth at the request of the newborn ’s legal representative , provided that the latter :

“ ( a ) has submitted a written withdrawal of his or her agreement to the provision of medical services to the newborn , or a written statement declaring his or her disagreement with the provision of the medical services , or alternatively such agreement or disagreement has been entered in the newborn ’s medical documentation ... ;

( b ) has been demonstrably and duly informed about the possible consequences following the discharge of the newborn before TIME have elapsed since the birth ... ;

( c ) has been duly informed DATE in the interests of the subsequent healthy development of the newborn – the NORP specialist medical associations recommend :

that a clinical examination be conducted within TIME of the discharge of the newborn ... ;

that a blood sample be taken within QUANTITY to TIME following the birth for the purposes of screening for hereditary metabolic malfunctions ... ”

In the event that the newborn is hospitalised without the agreement of the legal representative in order to be given medical treatment necessary to save the child ’s life or to prevent serious damage to the child ’s health , the hospital should proceed in accordance with sections CARDINAL and CARDINAL of ORG ( Law no . CARDINAL ) . This practice guideline came into force on DATE .

According to estimated data provided by ORG in a DATE report , GPE was among the countries with the lowest perinatal mortality rate , which is defined as the number of stillbirths and deaths in DATE of life . The rate for GPE was PERCENT . In other NORP countries the figures ranged from PERCENT in GPE and GPE to PERCENT in GPE . In most NORP countries the figures were PERCENT . According to the report , perinatal mortality is an important indicator of maternal care and maternal health and nutrition ; it also reflects the quality of available obstetric and paediatric care , comparing different countries . The report recommended that , if possible , all foetuses and infants weighing CARDINAL g at birth , whether alive or dead , should be included in the statistics . The reported data regarding stillbirths were not adjusted to this effect in the study .

According to ORG on the health and care of pregnant women and babies in LOC in DATE , issued in DATE within the framework of the activities of LAW , GPE was amongst the countries with the lowest mortality rate amongst newborns in the first DATE of their life . The rate was PERCENT . The data for other included countries , mostly ORG ( GPE ) member GPE , ranged from PERCENT for GPE to PERCENT for GPE . However , if only statistics relating to babies born after DATE of pregnancy were taken into account , GPE , with a rate of PERCENT , moved closer to the average of PERCENT . The report noted that the wide variation in gestational age - specific neonatal mortality rates at CARDINAL to DATE suggested that not all births and deaths very early in the neonatal period were systematically included . Consequently , the report considered the data including only babies born after DATE of gestation more reliable .

The applicants pointed out that the above sets of data were not easily comparable across countries owing to the different definitions used . The majority of NORP countries set a weight limit of CARDINAL g for counting live births and stillborn children . In GPE , however , the practice until DATE had been that a birth was registered for statistical purposes only if the child weighed CARDINAL g.

The Government stated that NORP maternity hospitals offered highquality services during delivery that fully respected the rights and wishes of mothers . For their part , the applicants submitted testimonies from numerous mothers who had given birth in maternity hospitals during DATE and who pointed to practices that were DATE in their view – unacceptable , including the following : medical intervention during delivery without the consent of the mothers and sometimes against their explicitly expressed will , such as artificial rupture of membranes ; episiotomy ; intravenous infusion of medication for the mother ; performing the PERSON manoeuvre ( pushing with the fist or forearm the top of the uterus coinciding with a contraction and pushing by the mother during the second stage of labour ) ; performing Caesarean section without sufficient medical justification ; using techniques and medication to speed up the delivery ; separation of mothers from their babies for TIME after delivery , ignoring the mother ’s wishes to have immediate contact with the baby after delivery ; routinely placing healthy babies in incubators ; administering treatment to babies against the express wishes of the mother ; and forcing the mother and baby to stay in hospital for TIME after delivery even when they were both healthy . There had also been complaints of arrogant , intimidating , disrespectful and patronising behaviour on the part of the hospital staff and of a lack of privacy .

It appears that no midwife has been prosecuted in GPE for attending home births per se . Several of them have been prosecuted for alleged malpractice in connection with a delivery at home , however . The applicants referred to the cases of PERSON and PERSON , who are both well - known promoters of natural deliveries without any unnecessary medical intervention and who used to regularly conduct home deliveries .

On DATE the GPE CARDINAL ORG ( obvodní soud ) found PERSON guilty of negligently causing the death of a baby who was stillborn . She was sentenced to CARDINAL years’ imprisonment , suspended for DATE , and prohibited from practising the occupation of midwife for DATE . The culpability of PERSON was based on the fact that she had not strongly advised the mother to contact a medical facility when consulted by telephone during a labour that was already ongoing at home . She had thus given flawed advice to the mother - to - be without actually examining her . The conviction was upheld on appeal on CARDINAL DATE , although the sentence was changed to CARDINAL months’ imprisonment , suspended for DATE , and CARDINAL years’ prohibition on practising as a midwife . An appeal on points of law is pending .

On DATE the Prague CARDINAL ORG found PERSON guilty of negligently causing bodily harm to a baby whose home birth she had attended and who had stopped breathing during the delivery . The baby died DATE . She was sentenced to CARDINAL years’ imprisonment , suspended for DATE , prohibited from practising as a midwife for DATE , and ordered to pay CARDINAL NORP korunas ( CZK ) ( equivalent to MONEY ( EUR ) ) by way of reimbursement of the costs incurred by the insurance company in treating the child until the latter ’s death . According to the court , the malpractice on the part of PERSON consisted in the fact that she had not followed the standard procedures for deliveries as laid down by ORG ( Česká lékařská komora ) and her conduct had thus been “ non lege artis ” . The criminal complaint was not lodged by the parents but by a hospital .

On DATE the ORG quashed all the judgments in the case against PERSON on account of a violation of her right to a fair trial . It considered the conclusions of the ordinary courts as to PERSON guilt to have been too subjective and not supported by the evidence beyond any reasonable doubt , thereby violating the principle of the presumption of innocence . It stated in particular that the courts had uncritically relied on an expert opinion which they had failed to subject to thorough scrutiny . It held that DATE on the basis of the expert opinion – the courts had applied very strict liability to the conduct of PERSON in a situation where it had not been clear how she could have prevented the baby ’s death . Moreover , it had been established that she had tried to help the baby and had called an ambulance immediately after establishing that the baby had hypoxia . To foresee every possible complication during delivery and be able to react to it immediately , as was required of PERSON , would ultimately lead de facto to an absolute prohibition of home births . In that context ORG noted :

“ ... a modern democratic ORG founded on the rule of law is based on the protection of individual and inalienable freedoms , the delimitation of which closely relates to human dignity . That freedom , which includes freedom in personal activities , is accompanied by a certain degree of acceptable risk . The right of parents to a free choice of the place and mode of delivery is limited only by the interest in the safe delivery and health of the child ; that interest can not , however , be interpreted as an unambiguous preference for deliveries in hospital . ”