Violation of Art. 5-1;Violation of Art. 7-1;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and is currently in FAC .

NORP Since the applicant attained the age of criminal responsibility he has been convicted CARDINAL times and has spent DATE outside prison .

DATE he was repeatedly convicted of theft committed jointly and burglary . He escaped from prison CARDINAL times .

On DATE ORG , applying the criminal law relating to young offenders , convicted the applicant of attempted murder , robbery committed jointly with others , dangerous assault and blackmail and sentenced him to CARDINAL years’ imprisonment . It found that DATE after his release from prison the applicant , together with an accomplice , had injured and robbed an acquaintance of his and had forced the victim , a homosexual , to sign a borrower ’s note . Moreover , he had injured and attempted to kill his victim DATE when he learned that the latter had reported the robbery to the police . Having regard to a report submitted by expert NORP , the court found that the applicant suffered from a pathological mental disorder , with the result that his criminal responsibility was diminished ( LAW ) .

On DATE ORG convicted the applicant of dangerous assault , sentenced him to DATE and CARDINAL months’ imprisonment and ordered his subsequent placement in a psychiatric hospital under LAW ( see paragraph CARDINAL below ) . The applicant had injured a prison guard by throwing a heavy metal box at his head and stabbing him with a screwdriver after having been reprimanded . As confirmed by expert NORP , the applicant suffered from a serious pathological mental disorder , with the result that his criminal responsibility was diminished .

On DATE ORG , on appeal , convicted the applicant of assault of a disabled fellow prisoner following a discussion as to whether or not the cell window should remain open . Incorporating the sentence imposed by the judgment of ORG of DATE , it sentenced him to a cumulative sentence of DATE and CARDINAL months’ imprisonment . Moreover , it upheld the order for the applicant ’s placement in a psychiatric hospital . In the proceedings , an expert found that there were no longer any signs that the applicant suffered from a pathological brain disorder .

On DATE ORG convicted the applicant of attempted murder and robbery and sentenced him to DATE imprisonment . It further ordered his placement in preventive detention ( GPE ) under LAW ( see paragraphs CARDINAL below ) . It found that when the conditions of his detention in the psychiatric hospital where he had been detained since DATE had been relaxed , the applicant had on DATE robbed and attempted to murder a woman who had volunteered to spend DATE with him in a city away from the hospital . Having regard to the report of a neurological and psychiatric expert , PERSON , the court found that the applicant still suffered from a serious mental disorder which could , however , no longer be qualified as pathological and did not have to be treated medically . He therefore had not acted with diminished criminal responsibility and the preconditions for his placement in a psychiatric hospital under LAW were no longer met . However , he had a strong propensity to commit offences which seriously damaged his GPE physical integrity . It was to be expected that he would commit further spontaneous acts of violence and he was dangerous to the public . Therefore , his preventive detention was necessary .

Since DATE the applicant , having served his full prison sentence , has been in preventive detention in FAC .

On DATE ORG refused to suspend on probation the applicant ’s preventive detention and his placement in a psychiatric hospital . It relied on a report submitted by expert M .- I. , who had concluded that the applicant was likely to commit offences as a result of his propensity to reoffend within the meaning of LAW , whereas it was not very probable that he would commit offences as a result of his psychiatric condition within the meaning of LAW .

On DATE the applicant took advantage of a day release to abscond , but gave himself up to the police on CARDINAL DATE .

On DATE ORG refused to suspend on probation the applicant ’s preventive detention and his placement in a psychiatric hospital , as it had previously done on DATE and CARDINAL DATE . It took into consideration the fact that in the meantime the applicant , who at that time associated himself with skinheads , had assaulted and broken the nose of a fellow prisoner and had grossly insulted the governor of PERSON .

On DATE ORG dismissed the applicant ’s requests to suspend on probation his preventive detention as ordered by that court on DATE and his placement in a psychiatric hospital as ordered by it on DATE . Applying LAW § CARDINAL of LAW ( see paragraph CARDINAL below ) , it declared that no request for review of this decision would be admissible within a DATE period .

Having regard to the applicant ’s previous convictions and his conduct in prison , ORG found that it could not be expected that the applicant , if released , would not commit further serious offences ( Article CARDINAL § CARDINAL of LAW ; see paragraph CARDINAL below ) . The court had heard evidence from the applicant , who was represented by officially appointed counsel , in person . It had further consulted PERSON and the PERSON public prosecutor ’s office , both of which had recommended not suspending on probation the orders for the applicant ’s detention . It also agreed with the report submitted by an external expert in forensic psychiatry , PERSON The expert had taken the view that the applicant , who had a narcissistic personality and a total lack of empathy , but could not be regarded as suffering from a psychopathic disorder , needed to be observed for DATE before it could be assumed that he was no longer dangerous to the public .

ORG stated that it was ordering the applicant ’s preventive detention also for the period after DATE , when ( after a period during which the applicant had escaped from detention had been deducted ) he would have served DATE in preventive detention . There were no constitutional obstacles to such a decision . According to the court , the applicant ’s continued preventive detention was authorised by LAW as amended in DATE ( see paragraph CARDINAL below ) . In section CARDINALa(CARDINAL ) of LAW to LAW , as amended in DATE , the LAW in question had been declared applicable also to prisoners whose preventive detention had been ordered prior to the change in the law ( see paragraph CARDINAL below ) . ORG had refused to admit a constitutional complaint in which the change in the law had indirectly been at issue . In view of the gravity of the applicant ’s criminal past and possible future offences his continued preventive detention was not disproportionate .

As to the order for the applicant ’s placement in a psychiatric hospital , his request was premature as he was neither currently detained nor about to be detained in a psychiatric hospital .

On DATE the GPE am ORG , amending the decision of ORG in this respect , quashed the order of DATE for the applicant ’s placement in a psychiatric hospital . Upholding the remainder of ORG decision , it decided not to suspend on probation the applicant ’s preventive detention as ordered by ORG judgment of CARDINAL DATE , and ordered his continued detention also after the expiry of DATE of detention on DATE . It confirmed that a request for review of the decision would not be admissible within DATE .

The Court of Appeal found that the order for the applicant ’s placement in a psychiatric hospital was devoid of purpose . Having regard to the expert reports submitted to the criminal courts since DATE and a new report by expert PERSON requested by the court itself , it was clear that the applicant no longer suffered from a serious mental disorder which should be qualified as pathological .

As to the preventive detention of the applicant , who was represented by counsel , ORG , endorsing the reasons given by ORG , found that the applicant ’s dangerousness necessitated his continued detention . In view of the offences he had committed and could be expected to commit on release , his continued detention was proportionate . No material change in the circumstances decisive for his detention was to be expected within DATE ( LAW of LAW ) .

According to ORG , Article CARDINAL CARDINAL of LAW , as amended in DATE , was constitutional . The court conceded that at the time when the applicant ’s preventive detention was ordered , it would have ceased after DATE of detention at the latest . However , LAW ( see paragraph CARDINAL below ) authorised a retrospective worsening of the applicant ’s situation as far as measures of correction and prevention such as preventive detention were concerned . Such measures were not classified as penalties , but as preventive measures , and were therefore not prohibited under LAW ( see paragraph CARDINAL below ) as retrospective criminal provisions .

Likewise , the applicant ’s continued preventive detention did not infringe the prohibition in principle of retrospective provisions enshrined in the rule of law . Weighty public - interest grounds , namely the protection of the public from dangerous offenders , justified the adoption of such retrospective provisions by the legislator in the present case .

On DATE the applicant , represented by counsel , lodged a complaint with ORG against the decisions ordering his continued preventive detention even on completion of the tenyear period . He claimed , in particular , that these decisions were based on Article CARDINAL of LAW , as amended in DATE , under the terms of which the duration of a convicted person ’s first period of preventive detention could be extended retrospectively from a maximum period of DATE to an unlimited period of time . Accordingly , this provision violated the prohibition of retrospective punishment under Article CARDINAL § CARDINAL of LAW , the prohibition of retrospective legislation enshrined in the rule of law , the principle of proportionality and his right to liberty under LAW , second sentence , of LAW ( see paragraph CARDINAL below ) . Moreover , the impugned provision entailed his being refused any relaxation in his conditions of detention which would allow him to obtain a positive finding to the effect that he was no longer dangerous to the public . As a consequence , it entailed lifelong imprisonment without any prospect of release .

On DATE a panel of CARDINAL judges of ORG , having held a hearing at which it also consulted psychiatric experts and several prison governors , dismissed the applicant ’s constitutional complaint ( no . CARDINAL BvR CARDINAL/CARDINAL ) as ill - founded . In its thoroughly reasoned leading judgment ( running to CARDINAL pages ) , it held that Article CARDINAL of LAW , read in conjunction with LAW ) of LAW to LAW , as amended in DATE , was compatible with LAW .

ORG held that preventive detention based on Article CARDINAL of LAW restricted the right to liberty as protected by LAW in a proportionate manner .

The court stressed that the longer a person was held in preventive detention , the stricter became the requirements concerning the proportionality of the deprivation of liberty . However , Article CARDINAL of LAW took into account the increased importance of the right to liberty after DATE in custody . It set a higher standard with respect to the legal interest under threat ( protecting only threats to the GPE physical or mental integrity ) and the proof of the applicant ’s dangerousness ( requiring a duly substantiated report by an experienced external psychiatric expert ) . It also made termination of detention the rule and extension the exception , to be used as a measure of last resort . Moreover , the procedural provisions on preventive detention ( Articles CARDINALc § CARDINAL , GPE CARDINAL QUANTITY of LAW ) provided for regular review to determine whether the person ’s detention could be suspended or terminated . Due to the special significance which the relaxation of detention conditions had for the prognosis of future dangerousness , the court responsible for the execution of the sentence was not permitted to accept without sufficient reason a refusal by the prison authorities to relax detention conditions as a possible precursor to the termination of a detainee ’s preventive detention .

Preventive detention did not serve to avenge past offences but to prevent future ones . Therefore , the ORG had to ensure that a detainee was able to have his or her detention conditions improved to the full extent compatible with prison requirements .

The Federal Constitutional Court further held that Article CARDINAL of LAW , taken in conjunction with LAW ) of LAW to LAW , did not violate LAW . The absolute ban on the retrospective application of criminal laws imposed by that Article did not cover the measures of correction and prevention , such as preventive detention , provided for in LAW .

Interpreting the notions of “ punished ” and “ punishable act ” in LAW , ORG found that the LAW applied only to ORG measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a penalty to compensate for guilt . Having regard to the genesis of LAW and the purpose of LAW , it did not apply to other ORG measures interfering with a person ’s rights .

NORP In particular , LAW did not extend to measures of correction and prevention , which had always been understood as differing from penalties under LAW twin - track system of penalties and measures of correction and prevention . The fact that a measure was connected with unlawful conduct or entailed considerable interference with the right to liberty was not enough . Unlike a penalty , preventive detention was not aimed at punishing criminal guilt , but was a purely preventive measure aimed at protecting the public from a dangerous offender . Therefore , preventive detention was not covered by LAW , even though it was directly connected with the qualifying offence .

The Federal Constitutional Court further held , by CARDINAL votes to CARDINAL on this issue , that the abolition of the maximum period of detention where preventive detention was ordered for the first time , and the application of the relevant provision ( Article CARDINAL of LAW read in conjunction with LAW ) of LAW to LAW ) to criminals who had been placed in preventive detention prior to its enactment and entry into force and who had not yet fully served their sentences , were in conformity with the protection of legitimate expectations guaranteed in a ORG governed by the rule of law ( LAW read in conjunction with LAW of LAW ; see paragraph CARDINAL below ) .

The court stressed that Article CARDINAL of LAW as amended did not retrospectively alter the legal consequences attaching to the offence as fixed in the final judgment of the sentencing court . It had always been the courts responsible for the execution of sentences which had jurisdiction to decide whether and for how long a convicted person was held in preventive detention .

Nevertheless , the maximum duration of a first period of preventive detention as laid down in the old version of Article CARDINAL § § CARDINAL of the Criminal Code gave detainees reason to expect release when DATE had elapsed . However , pursuant to LAW ( see paragraph CARDINAL below ) , the DATE maximum duration of preventive detention , like all other measures of correction and prevention , had been subject from the outset to changes in the law .

Weighing the interests involved , ORG concluded that the legislator ’s duty to protect members of the public against interference with their life , health and sexual integrity outweighed the detainee ’s reliance on the continued application of the DATE limit . As Article CARDINAL of LAW was framed as an exception to the rule and in the light of the procedural guarantees which attached to it , its retrospective application was not disproportionate .

The Federal Constitutional Court further found that a person ’s human dignity as enshrined in LAW did not impose a constitutional requirement that there be a fixed maximum period for a convicted person ’s preventive detention . The person ’s dignity was not violated even by a long period of preventive detention if this was necessary owing to the continued danger which he or she posed . However , the aim of preventive detention had to be to rehabilitate detainees and to lay the foundations for a responsible life outside prison . Human dignity required laws and enforcement programmes which gave detainees real prospects of regaining their freedom .

Preventive detention in its present form met these requirements . The courts responsible for the execution of sentences had , in particular , to examine before the end of a convicted person ’s prison term ( Article CARDINAL § CARDINAL of LAW ) and subsequently at least DATE ( LAW CARDINAL of LAW ) whether the measure could be suspended . If DATE had been spent in preventive detention , they declared the measure terminated under Article QUANTITY § CARDINAL of LAW if no specific dangers remained . In practice , persons in preventive detention were released after having spent a certain length of time in prison .

Lastly , ORG found that the prohibition on being removed from the jurisdiction of the lawful judge , as guaranteed by LAW ( see paragraph CARDINAL

In FAC , persons in preventive detention like the applicant are placed in a separate building from prisoners serving their sentence . They have certain privileges compared with convicted offenders serving their sentence . For instance , they have the right to wear and wash their own clothes and have more pocket money . They can practise sport in a separate sports room and may stay outside in the yard for TIME every day . They may equip their more comfortable cells with additional furniture and equipment and have longer visiting TIME .

As to measures aimed at reintegration into society , persons held in preventive detention in FAC , like those detained in other prisons , are offered a DATE discussion group which proposes ideas for recreational activities and for structuring DATE life . Furthermore , there are individual discussions to improve the detainee ’s integration into the group and a residential group DATE aimed , inter alia , at motivating detainees to accept the treatment on offer . Where it is considered appropriate , detainees are offered individual therapy sessions with an external therapist or group therapy in the socio - therapeutic facility of another prison . The detainee may also request a consultation with the psychologist or social worker in charge in order to deal with crisis situations .

The applicant has been receiving therapy since he was placed in preventive detention . Since DATE he has had therapy sessions with a psychologist in FAC . From DATE he also had regular individual therapy sessions with an external psychologist . At that point , the therapy was considered to have been completed and no longer necessary . In addition , the applicant has been examined by psychiatrists at regular intervals in order to evaluate his dangerousness and to permit relaxation of the prison regime as appropriate . As to relaxation of the conditions of the applicant ’s preventive detention , he is currently granted short periods of leave under escort ( PERSON ) a few times per year . He also receives regular visits ( on average CARDINAL times per month ) from his fiancée , to whom he has been engaged since DATE . He has been working , with a short interruption , in prison and is currently working in the prison ’s metal workshop , with net earnings of CARDINAL to CARDINAL euros ( ORG ) per month .

According to a psychiatric expert report and an additional psychological report drawn up in DATE , the applicant had made important steps towards reintegration into society , in particular by turning away from his criminal identity , which he had developed since his childhood , and by trying to think before acting . His new relationship with his fiancée could be seen as a further positive development and would also improve his social circumstances in the event of his release from prison . However , this trend had not yet stabilised and a lack of loyalty and empathy towards others as well as a dangerous impulsiveness , which had manifested itself again when the applicant had punched a fellow detainee in the face following a dispute concerning a baking tin in DATE , persisted . The expert recommended maintaining and cautiously extending the current measures to relax the conditions of the applicant ’s preventive detention .

The German Criminal Code distinguishes between penalties ( GPE ) and socalled measures of correction and prevention ( Maßregeln der Besserung und GPE ) to deal with unlawful acts . This twin - track system of sanctions , the introduction of which had been considered and discussed since DATE , was incorporated into LAW by the PERSON on dealing with dangerous habitual offenders and on measures of correction and prevention ( PERSON gegen gefährliche PERSON und über Maßregeln der PERSON ) of DATE . The rules on preventive detention remained in force , essentially unchanged , after DATE and underwent several reforms enacted by the legislator from DATE onwards .

Penalties ( see Articles CARDINAL et seq . of LAW ) consist mainly of prison sentences and fines . The penalty is fixed according to the defendant ’s guilt ( LAW ) .

Measures of correction and prevention ( see Articles CARDINAL et seq . of LAW ) consist mainly of placement in a psychiatric hospital ( LAW ) or a detoxification facility ( LAW ) or in preventive detention ( LAW ) . The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them . They may be ordered for offenders in addition to their punishment ( compare Articles CARDINAL et seq . ) . They must , however , be proportionate to the gravity of the offences committed by , or to be expected from , the defendants as well as to their dangerousness ( Article CARDINAL of LAW ) .

The temporal applicability of provisions of the Criminal Code depends on whether they relate to penalties or measures of correction and prevention . The penalty is determined by the law which is in force at the time of the act ( LAW ) ; if the law in force on completion of the act is amended before the court ’s judgment , the more lenient law applies ( LAW ) . On the other hand , decisions on measures of correction and prevention are based on the law in force at the time of the decision unless the law provides otherwise ( LAW ) .

The sentencing court may , at the time of the offender ’s conviction , order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be dangerous to the public ( LAW ) .

NORP In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to CARDINAL years’ imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW ) .

Article CARDINALc of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final . Paragraph CARDINAL of the LAW provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special ORG composed of CARDINAL professional judges ; see sections ORG and CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person ’s preventive detention is still necessary in view of its objective . If that is not the case , it suspends on probation the execution of the preventive detention order ; supervision of the person ’s conduct ( GPE ) commences with suspension .

At the time of the applicant ’s offence and his conviction , Article CARDINAL of LAW , in so far as relevant , was worded as follows :

“ CARDINAL . Detention in a detoxification facility may not exceed DATE and the first period of preventive detention may not exceed DATE . ...

NORP If there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend further execution of the detention order on probation as soon as there are justifiable reasons for testing whether the detainee can be released without committing further unlawful acts . Suspension shall automatically entail supervision of the conduct of the offender .

NORP If the maximum duration has expired , the detainee shall be released . The measure shall thereby be terminated . ”

Article CARDINAL of LAW was amended while the applicant was in preventive detention for the first time , by ORG and Other LAW ( Gesetz zur PERSON und anderen gefährlichen ORG CARDINAL DATE , which entered into force on DATE . The amended provision , in so far as relevant , provided :

“ CARDINAL . Detention in a detoxification facility may not exceed DATE ...

NORP If there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release . Suspension shall automatically entail supervision of the conduct of the offender .

NORP If a person has spent DATE in preventive detention , the court shall declare the measure terminated if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the conduct of the offender . ”

As to the applicability ratione temporis of Article CARDINALd of LAW as amended , LAW to LAW , in so far as relevant , reads :

“ Article PERSON of LAW , as amended by ORG and Other LAW of DATE ( ORG I , p. CARDINAL ) , shall apply without restriction . ”

With respect to the judicial examination required under Article CARDINAL § CARDINAL of LAW and to the subsequent decisions under LAW , LAW , as amended by ORG and Other LAW , makes it compulsory for the court responsible for the execution of sentences both to consult an expert on the question whether the convicted person is likely to commit serious offences when released and to appoint defence counsel to represent him or her .

In addition to Articles DATE § CARDINAL and CARDINALd § § CARDINAL and CARDINAL of LAW , LAW provides for the review of a convicted person ’s preventive detention . The court may review at any time whether the further execution of the preventive detention order should be suspended on probation . It is obliged to do so within fixed time - limits ( LAW ) . For persons in preventive detention , this time - limit is DATE ( § CARDINAL of Article CARDINAL ) . The court may shorten this time - limit , but may also set terms within the statutory limits for review before which an application for review shall be inadmissible ( § CARDINAL of Article CARDINAL ) .

LAW , second sentence , of LAW provides that the liberty of the person is inviolable .

Pursuant to LAW , the legislature is bound by the constitutional order , the executive and the judiciary by law and justice .

According to the well - established case - law of ORG , LAW read in conjunction with LAW of LAW protects legitimate expectations in a ORG governed by the rule of law . A law may be retrospective in the sense that , while its legal effects are not produced until it is published , its definition covers events “ set in motion ” before it is published ( so - called unechte PERSON ; see the decisions of ORG in the compendium of decisions of ORG ) , vol . DATE , pp . CARDINAL et seq . , CARDINAL , and vol . CARDINAL , pp . CARDINAL et seq . and CARDINAL et seq . ) . In respect of retrospective laws in that sense , the principles of legal certainty and protection of legitimate expectations are not given overall priority over the intention of the legislator to change the existing legal order in response to changing circumstances . The legislator may enact such retrospective laws if the importance of the purpose of the legislation for the common good outweighs the importance of the interest in protecting legitimate expectations ( see the judgment of ORG in the instant case , pp . DATE , with many references to its case - law ) .

Pursuant to LAW , no one may be removed from the jurisdiction of the lawful judge .

Under LAW of LAW , an act may be punished only if the fact of its being punishable was determined by law before the act was committed .

The ( Federal ) Execution of Sentences Act ( Strafvollzugsgesetz ) lays down rules for the execution of sentences of imprisonment in prisons and for the execution of measures of correction and prevention depriving the persons concerned of their liberty ( see section CARDINAL of the Act ) . Its provisions were applicable in all ORG until DATE ; since then , the ORG have had the power to legislate on these issues . In so far as they have already made use of this power , the provisions laid down by the Länder on the execution of preventive detention orders do not differ significantly from those laid down in LAW .

Section CARDINAL of the Execution of Sentences Act deals with the purpose of the execution of sentences of imprisonment . During the execution of a sentence of imprisonment the detainee should become capable henceforth of leading a socially responsible life without committing offences ( purpose of execution ; first sentence ) . The execution of the sentence of imprisonment is also aimed at protecting the public from further offences ( second sentence ) .

Sections CARDINAL to CARDINAL of LAW contain special rules for the execution of preventive detention orders . Section CARDINAL provides that persons held in preventive detention shall be detained in secure conditions for the protection of the public ( first sentence ) . They are to be given assistance in readjusting to life outside prison ( second sentence ) . Unless stipulated otherwise ( in sections CARDINAL to CARDINAL of the said Act ) , the provisions concerning the execution of prison sentences shall apply mutatis mutandis to preventive detention ( section CARDINAL of that Act ) .

According to section CARDINAL of LAW , the equipment of the institutions in which persons are held in preventive detention , notably detention cells , and particular measures to promote their welfare , must be designed to help detainees to organise their life in the institution in a reasonable manner and to protect them from damage caused by a lengthy deprivation of liberty . Their personal needs are to be taken into account as far as possible . Section CARDINAL of the said LAW provides that detainees may wear their own clothes and use their own linen and bedding , unless this is prohibited for security reasons and provided they see to their cleaning , repair and regular changing at their own expense . Moreover , under section CARDINAL of the said Act , detainees are allowed to occupy themselves against payment if this serves the objective of imparting , maintaining or promoting skills needed for paid employment after their release . They also receive pocket money . Pursuant to section CARDINAL of the said Act , the conditions of detention may be relaxed and special leave for a period of DATE may be granted in order to test detainees’ readiness and prepare them for release .

Section CARDINAL(CARDINAL ) of LAW provides that preventive detention is served either in a separate institution or in a separate wing of a prison for the execution of sentences of imprisonment .

According to statistical material submitted by the ORG , which was not contested by the applicant , the NORP sentencing courts made a total of CARDINAL preventive detention orders in DATE , CARDINAL of which concerned sexual offenders . A total of CARDINAL persons were being held in preventive detention in GPE on DATE . In DATE , the average duration of a first period of preventive detention was DATE in the different Länder . In DATE , CARDINAL persons placed in preventive detention for the first time were affected by the abolition of the maximum duration of preventive detention of DATE under Article CARDINAL of LAW , read in conjunction with LAW ) of LAW to LAW as amended in DATE . In DATE , CARDINAL persons were still affected by that change in the law and had been in preventive detention for DATE .

DATE . According to statistical material submitted by the ORG , which was not contested by the applicant , GPE had CARDINAL prisoners per CARDINAL inhabitants in DATE , whereas there were , for example , CARDINAL prisoners per CARDINAL inhabitants in GPE , CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE and GPE , CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE and CARDINAL in GPE . Furthermore , according to ORG , of CARDINAL DATE ( PC - CP ( DATE ) CARDINAL of DATE , p. CARDINAL ) , the total number of prisoners sentenced to terms of imprisonment ranging from DATE up to and including life imprisonment on DATE was CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE , CARDINAL in GPE and GPE , CARDINAL in GPE , CARDINAL in GPE and CARDINAL in GPE .

According to the information and material before the ORG , the member ORG have chosen different ways of shielding the public from convicted offenders who acted with full criminal responsibility at the time of the offence ( as did the applicant at the relevant time ) and who risk committing further serious offences on release from detention and therefore present a danger to the public .

Apart from GPE , CARDINAL seven other Convention States have adopted systems of preventive detention in respect of convicted offenders who are not considered to be of unsound mind , in other words , who acted with full criminal responsibility when committing their offence(s ) , and who are considered dangerous to the public as they are liable to reoffend . These include GPE ( see Articles CARDINAL et seq . and CARDINAL et seq . of LAW , and ORG CARDINAL et seq . of LAW ) , GPE ( see Articles CARDINAL et seq . of LAW ) , GPE ( see Articles CARDINAL et seq . of LAW ) , GPE ( see Articles CARDINAL et seq . and CARDINAL of LAW and Articles CARDINAL et seq . of LAW ) , GPE ( see PERSON . of FAC ) , GPE ( see Articles CARDINAL and CARDINAL of GPE ) and GPE ( see Articles CARDINAL et seq . of LAW ) . Preventive detention in these GPE is ordered , as a rule , by the sentencing courts and is generally executed after the persons concerned have served their prison sentences ( with the exception of GPE , where preventive detention is ordered instead of a prison sentence ) . The GPE dangerousness is reviewed on a periodic basis and they are released on probation if they are no longer dangerous to the public .

As to the place and duration of the placement , persons subject to preventive detention are placed in special institutions in GPE ( see LAW ) , GPE ( see LAW ) , GPE ( see PERSON . of FAC ) , GPE ( see LAW of LAW ) and GPE ( see LAW ) . Even though NORP law also stipulates that preventive detention is to be served in special institutions ( compare Articles CARDINAL et seq . of LAW ) , it appears that in practice these institutions no longer exist and that the persons concerned are kept in ordinary prisons under a special detention regime . Dangerous offenders in preventive detention in GPE are also kept in ordinary prisons under a special detention regime . In GPE , GPE , GPE , GPE ( see the express provisions of LAW ) and GPE , the applicable provisions do not fix a maximum duration of preventive detention . By contrast , in GPE and GPE , such detention may not exceed DATE ( see LAW of both the NORP and ORG ) .

As regards the temporal applicability of the provisions on preventive detention , it is to be noted that , according to the wording of the applicable provisions in some of the GPE concerned , they may be applied retrospectively . Thus , pursuant to LAW , a decision on preventive measures is to be based on the law in force at the time of their execution , and pursuant to LAW of LAW , these decisions are to be based on the law in force at the time of the decision ordering the security measure . Under LAW of LAW , the question whether an offence is to be punished by preventive detention is decided by applying the law in force at the time of the judgment in the criminal proceedings . FAC likewise does not prohibit the retrospective application of preventive measures . By contrast , retrospective application appears to be prohibited in respect of preventive detention measures pursuant to Articles CARDINAL § CARDINAL et seq . of both the NORP and ORG and under NORP law .

In many other GPE , there is no system of preventive detention and offenders’ dangerousness is taken into account both in the determination and in the execution of their sentence . On the one hand , prison sentences are increased in the light of offenders’ dangerousness , notably in cases of recidivism . In this respect it is to be noted that , unlike the courts in the majority of GPE , the sentencing courts in GPE expressly distinguish between the punitive and the preventive part of a life sentence . The retributive or tariff period is fixed to reflect the punishment of the offender . Once the retributive part of the sentence has been served , a prisoner is considered as being in custody serving the preventive part of his sentence and may be released on probation if he poses no threat to society ( see , inter alia , sections CARDINAL and CARDINAL of LAW DATE and CARDINAL of ORG . On the other hand , offenders’ dangerousness generally has an influence both on their conditions of detention and on their chances of benefiting from a reduction of their sentence or from release on probation .

As regards the distinction between penalties and preventive measures in GPE and the consequences drawn from the qualification of the sanction in question , it must be noted that the same type of measure may be qualified as an additional penalty in CARDINAL ORG and as a preventive measure in another . Thus , the supervision of a person ’s conduct after release , for example , is an additional penalty under ORG CARDINAL - CARDINAL - CARDINAL et seq . of LAW and a preventive measure under LAW and CARDINAL of the NORP LAW .

NORP Moreover , GPE DATE on post - sentence preventive detention and diminished criminal responsibility due to mental deficiency ( PERSON relative à la rétention de sûreté et à la déclaration d’irresponsabilité pénale pour cause de trouble mental ) has introduced preventive detention into LANGUAGE law . Under Article CARDINAL - CARDINAL - CARDINAL of LAW Code of Criminal Procedure , this measure may be ordered against particularly dangerous offenders who pose a high risk of recidivism because they suffer from a serious personality disorder . ORG , in its decision of DATE ( no . PERCENT , ORG ) of DATE , p. CARDINAL ) , found that such preventive detention , which was not based on the guilt of the person convicted but was designed to prevent persons from reoffending , could not be qualified as a penalty ( § CARDINAL of the decision ) . To that extent , it thus took the same view as ORG in respect of preventive detention under NORP law ( see paragraphs CARDINAL - CARDINAL above ) . Nevertheless , in view of its custodial nature , the time it may last , the fact that it is indefinitely renewable and the fact that it is ordered after conviction by a court , ORG considered that post - sentence preventive detention could not be ordered retrospectively against persons convicted of offences committed prior to the publication of LAW ( § CARDINAL of the decision ) . In this respect , it came to a different conclusion than ORG ( see paragraphs CARDINAL and also paragraphs CARDINAL above ) .

DATE . ORG Commissioner for Human Rights , Mr PERSON , stated the following in his report on his visit to GPE from CARDINAL to CARDINAL and from DATE ( CommDH(CARDINAL)CARDINAL of CARDINAL DATE ) regarding the issue of what he referred to as “ secured custody ” ( GPE ) :

“ CARDINAL . During the visit , the Commissioner discussed the issue of secured custody with several ORG authorities , judges and medical experts . The Commissioner is aware of the public pressure judges and medical experts are exposed to when they make decisions regarding the release of a person who might recommit a serious crime . It is impossible to predict with full certainty whether a person will actually reoffend . Psychiatrists regularly assess the behaviour of an imprisoned person who might act differently outside the prison . In addition , it is difficult to foresee all the conditions that wait for the offender outside the prison .

NORP The Commissioner calls for an extremely considerate application of secured custody . Alternative measures should also be considered before recourse to secured custody is taken . The Commissioner is concerned about the rising number of people deprived of their liberty under secured custody . He encourages the NORP authorities to commission independent studies on the implementation of secured custody in order to evaluate the measure in terms of protecting the general public and its impact on the detained individual .

Furthermore , the Commissioner was informed that persons kept under secured custody regularly experience a loss of future perspective and give up on themselves . This would appear to call for the provision of psychological or psychiatric care . The medical opinion may occasionally be divided on the efficacy of care provided to persons kept under secured custody , yet the possibility of their eventual rehabilitation and release should not be excluded . Accordingly , people held under secured custody should receive adequate medical treatment or other care that addresses their specific situation . ”

In its report to ORG on its visit to GPE from DATE to DATE ( ORG ( DATE ) CARDINAL of DATE ) , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) made the following findings in respect of ORG ” ( GPE ) in FAC :

“ CARDINAL . Material conditions in the unit were of a good or even very good standard , with several particularly positive elements : well equipped single rooms with sanitary annexes ; a light and reasonably spacious communal environment ; a small kitchen with equipment for inmates to prepare hot drinks and light snacks , and an area where washing , drying and ironing could be done .

In principle , inmates had access to the same activities as ordinary prisoners ( in terms of work , education , etc . ) . In addition , in accordance with the relevant legislation , inmates benefited from a number of special privileges . In particular , cell doors remained open throughout DATE , and inmates were granted additional entitlements for visits ( TIME instead of TIME ) , outdoor exercise ( TIME instead of TIME on non - working days ) , the supply of parcels ( CARDINAL rather than DATE ) and pocket money ( if there was no work ) . It is also noteworthy that all inmates had unrestricted access to the telephone .

In theory , at least , the unit offered opportunities for a positive custodial living environment . However , not all inmates were capable of making the best of these opportunities , which was not surprising if CARDINAL takes into account that , according to medical staff , most if not all of the inmates were suffering from multiple personality disorders . The vast majority of inmates were completely demotivated , with CARDINAL taking any outdoor exercise , CARDINAL working full - time and CARDINAL part - time . CARDINAL inmates were offered work , but were not willing to take part in it . Thus , the vast majority of inmates was idling away their time alone in their cells , occupying themselves with watching TV or playing video games .

Even among those inmates who apparently assumed and coped with the responsibility for their DATE lives on the unit , the sense was that the activities were strategies to pass time , without any real purpose . As might be expected , this appeared to be related to their indefinite GPE . Several inmates interviewed expressed a clear sense that they would never get out and one stated that the only thing he could do was prepare himself to die .

According to the prison administration , staff worked according to special treatment criteria , the aim being the individual ’s release from placement in GPE ; the focus was to minimise the risk to the general public , as well as to deal with the physical and psychological effects of long - term custody . Yet , the delegation observed that in practice , staff ( including the social worker ) were conspicuous by their absence in this unit , thereby keeping staff - inmate contacts to a minimum .

Even for the other inmates who were apparently coping better with their situation , the lack of staff engagement on the unit was not justifiable . Allowing inmates responsibility and a degree of independence does not imply that staff should leave them to their own devices . The duty of care can not be ignored , particularly in relation to such a special group of inmates . The delegation gained the distinct impression that the staff themselves were not clear as to how to approach their work with these inmates . As well as empowering inmates to take charge of their lives in custody , there is a need for ongoing support to deal with indefinite detention , as well as to address the legacy of serious past histories of aberrant behaviour and apparent psychological problems . Psychological care and support appeared to be seriously inadequate ; the ORG recommends that immediate steps be taken to remedy this shortcoming .

The difficult question of how to implement in practice a humane and coherent policy regarding the treatment of persons placed in GPE needs to be addressed as a matter of urgency at the highest level . Working with this group of inmates is bound to be one of the hardest challenges facing prison staff .

Due to the potentially indefinite stay for the small ( but growing ) number of inmates held under GPE , there needs to be a particularly clear vision of the objectives in this unit and of how those objectives can be realistically achieved . The approach requires a high level of care involving a team of multi - disciplinary staff , intensive work with inmates on an individual basis ( via promptly - prepared individualised plans ) , within a coherent framework for progression towards release , which should be a real option . The system should also allow for the maintenance of family contacts , when appropriate .

The ORG recommends that the NORP authorities institute an immediate review of the approach to GPE at FAC and , if appropriate , in other establishments in GPE accommodating persons subject to GPE , in the light of the above remarks . ”

In its Concluding Observations adopted at its session from CARDINAL DATE on the report submitted by GPE under LAW ( see ORG / CO/CARDINAL of DATE ) , ORG found :

“ CARDINAL . The ORG is concerned by ORG claim of authority under LAW . MONEY ( DATE ) to place criminal defendants under renewable DATE terms of civil preventive detention ( rétention de sûreté ) because of ‘ ORG , even after they have completed their original prison sentences . While ORG has prohibited retroactive application of the statute , and the judge who sentences a criminal defendant contemplates the possibility of future civil preventive detention as part of the original disposition of a case , nonetheless , in the view of the ORG , the practice may remain problematic under Articles CARDINAL , DATE and DATE of the LAW . ”


RAITA AND JALI RAITA CONSULTING OY v. FINLAND

The first applicant is a NORP citizen , born in DATE and resident in GPE . He owns and represents the limited liability company ORG ( i.e. the second applicant ) . The respondent Government are represented by their Agent , Mr PERSON , of ORG .

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

The applicant company brought civil proceedings for damages against a another company . On DATE ORG ( käräjäoikeus , tingsrätten ) of GPE ordered the defendant to pay certain damages and dismissed the remainder of the action . Both parties appealed .

On DATE ORG ( hovioikeus , hovrätten ) of GPE quashed ORG judgment and dismissed the whole of the applicant company 's action . The panel of CARDINAL judges examining the appeal comprised , among others , Judge PERSON , an extraordinary judge on leave of absence from his permanent post as law clerk ( référendaire ; esittelijä , föredragande ) in ORG ( korkein oikeus , högsta domstolen ) .

In the case in point , ORG was responsible for checking any amendments to the draft judgment which ORG law clerk in charge had presented for the panel ’s deliberations . According to the case - file , T. had checked the draft judgment on DATE , whereas he had returned to his post at ORG with effect from DATE .

On DATE the applicant company requested ORG to complete its judgment in respect of CARDINAL claim allegedly left without examination . On DATE ORG dismissed this request .

The company was subsequently informed of Judge PERSON ’s return to ORG . In DATE the company sought leave to appeal to that court and also lodged a procedural complaint ( kantelu tuomiovirheen perusteella , klagan på grund av domvilla ) , arguing , inter alia , that as from DATE ORG had not been constituted according to the law ( tuomionvoipa , domför ) in the case in question .

On DATE ORG refused the company leave to appeal both against ORG judgment of CARDINAL DATE and its decision of DATE . ORG dismissed the procedural complaint , noting that the deliberations on the company ’s appeal to ORG had taken place already on DATE . The tasks which Judge PERSON had accomplished up to the delivery of the judgment had consisted of ordinary follow - up measures in accordance with established practice . ORG had thus been constituted according to the law despite his having left that tribunal with effect from DATE .

In the NORP court system a law clerk prepares the draft decisions and judgments of the courts of appeal and ORG but can not take part in any vote . He or she may annex a dissenting opinion , should his or her proposal not be followed .

According to chapter CARDINAL , section CARDINAL of LAW ( PERSON , PERSON Balk ) , the quorum of a court of appeal shall comprise CARDINAL judges in order for it to be constituted in accordance with the law .

According to Rules CARDINAL of the DATE Rules of Procedure of the Helsinki Court of Appeal , a judge may , after the competent panel has deliberated on the law clerk ’s proposal , propose necessary amendments to the draft judgment . The revised draft is then circulated among the judges for approval . On such approval , the judgment is prepared for delivery in its final wording . If the Presiding Judge considers that a proposed amendment would change the substance of the judgment or if a judge has changed his or her opinion , the matter shall , whenever deemed necessary , be subject to a second deliberation .

In a precedent of DATE ( no . CARDINAL:CARDINAL ) ORG held that a former justice could , after taking up his post as ORG , check a draft judgment and carry out other measures in a case deliberated upon prior to his departure . Nor had his departure endangered his independence and impartiality in the case in question .

In another precedent of DATE ( no . CARDINAL:CARDINAL ) ORG held that a court of appeal judge had become biased after he had checked and signed the original judgment but before it had been delivered .


Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants are :

PERSON , born in DATE ;

PERSON , born in DATE ;

Ms Ayshat Lom - Aliyevna Meshayeva , born in DATE ;

PERSON , born in DATE ;

ORG , born in DATE ;

Mr PERSON , born in DATE ;

Mr PERSON , born in DATE ;

Mr PERSON , born in DATE ;

Mr PERSON , born in DATE ;

PERSON , born in DATE ;

Mr PERSON , born in DATE ;

PERSON , born in DATE ;

PERSON , born in DATE ;

Mr PERSON , born in DATE ;

Mr PERSON , born in DATE ;

Mr PERSON , born in DATE .

They live in the village of Martan PERSON , ORG district , GPE .

The applicants represent CARDINAL families . CARDINAL of their relatives were detained on TIME DATE in Martan PERSON . The CARDINAL men have not been seen since DATE of detention , and the families have been conducting a search for them together .

The first CARDINAL applicants are relatives of PERSON , who was born in DATE . The first applicant is his wife , the second applicant is his brother , the fourth , fifth , sixth and the seventh applicants are his children . The third and eighth applicants are his niece and nephew . PERSON worked as a driver and tractor mechanic . The first applicant suffers from a number of chronic diseases and has category CARDINAL disabled status . The fifth applicant , the ORG minor daughter , is seriously ill and has category CARDINAL disabled status . The applicants submitted that ORG had suffered from tuberculosis . In DATE the heads of administration of PERSON and of the Urus - Martan district certified that there was no information to suspect Mr Meshayev of involvement in illegal armed groups or any other criminal activities .

The PERSON family live in their own house at CARDINAL FAC . TIME on DATE a group of CARDINAL or CARDINAL men wearing camouflage uniforms and white camouflage cloaks entered the house . They were all armed and masked and spoke NORP and NORP .

One of the men woke up PERSON and told him in NORP “ GPE , wake up ! ” They threw him on the floor and handcuffed him . When CARDINAL of the intruders pointed his automatic rifle at ORG ’s DATE son , another told him in NORP “ Do n’t touch the children , they are not guilty ” . Then the armed men escorted PERSON out of the room , without permitting him to put on warm clothes . He was wearing a short - sleeved ORG , trousers and was allowed to put on a pair of boots .

The first applicant submitted that she had cried and asked them not to take her husband away and that he had n’t done anything . The armed men had ordered her to keep quiet , or they would use the firearms . They took her husband ’s passport with them , in which documents for his LOC truck were inserted . When they were leaving the house , CARDINAL of the men hit the first applicant with a rifle butt on the head , as a result of which she briefly lost consciousness . The first applicant was able to see this person quite closely and submitted that he was short and plump , had large blue eyes visible in the opening of his mask and spoke LANGUAGE .

When the first applicant came round , she found that the men had closed the entrance door to the house by pushing a wardrobe against it . The first applicant managed to open it , with difficulty , and went out into the courtyard . The servicemen there tried to start her husband ’s NORP truck , but failed . They then proceeded along FAC towards the cemetery . The first applicant ran after them , but they started to shoot at her with machine guns with silencers and she had to keep a distance .

The first applicant reached the cemetery and there she lost sight of the men . A woman who lived near the cemetery told her on DATE that she had seen military vehicles – an armoured personnel carrier ( ORG ) , CARDINAL LOC trucks and a FAC vehicle – all without registration numbers , parked near her house . She had also seen a group of armed men around these vehicles , who had loaded her neighbour ’s DATE supply of wood into CARDINAL of the vehicles before they left .

Leoma PERSON ’s brother , the second applicant , stated that in TIME of DATE he had been awoken by the cries of his sister - in - law , the first applicant , who asked for help and said that his brother had been taken away . The second applicant ran from his house into the nearby main street leading towards ORG and saw an ORG , LOC trucks and a UAZ vehicle passing through the military roadblock towards ORG . In the moonlight the witness clearly saw that the cars were not stopped or detained at the roadblock .

The first and the second applicants submitted detailed statements about the events of TIME DATE . The applicants also submitted a hand - drawn plan of PERSON indicating the places to which they referred .

The applicants have had no news from Mr PERSON since TIME .

The Government in their observations did not dispute the facts as presented by the applicants . They stated that it had been established that on DATE unidentified armed men wearing masks had entered the applicants’ house at CARDINAL FAC and taken away PERSON , whose whereabouts had not been established .

Applicants DATE are relatives of PERSON , who was born in DATE . The ninth , eleventh , fourteenth and fifteenth applicants are his brothers . The tenth applicant is his mother . The twelfth and sixteenth applicants are his niece and nephew and the thirteenth applicant is his sister - in - law . The applicants submitted that in DATE the eleventh applicant had been abducted by unknown persons at the market in Grozny and the family have had no news of him since . The applicants did not submit any complaints in that connection .

In DATE the heads of administrations of PERSON and of the Urus - Martan district certified that there was no information to suspect Mr PERSON of involvement in illegal armed groups or any other crimes . The applicants submitted that DATE prior to PERSON detention he , together with the fourteenth applicant , had travelled in the latter ’s ORG truck together with the military commander of the village and his staff to PERSON in GPE , to collect New Year presents for the servicemen stationed in the village .

The PERSON family live in their own house in FAC . In TIME DATE the applicants and their family members were at home sleeping . At TIME a group of CARDINAL men entered the house . They were all armed with machine guns equipped with silencers and masked . Some were dressed in green or black camouflage uniforms , others wore white camouflage cloaks on top . They spoke NORP and NORP . They did not explain anything to the applicants and did not produce any papers . They proceeded to check the documents of all the men in the family .

The tenth applicant , PERSON mother , submitted that she had been awoken in the night to find the room filled with armed servicemen . A group of soldiers were standing over FAC bed . They briefly searched the room and ordered PERSON to dress . The tenth applicant asked why they were taking him away and they told her not to worry . They also took PERSON identity documents with them .

The fourteenth applicant , PERSON brother , submitted that in TIME of DATE he had been awoken by the light of several torches pointed at him . He was ordered not to move and to produce his documents . The fourteenth applicant showed them where his documents were , the men checked them and ordered him to get out of bed and to show them who was sleeping in which room . When the servicemen were taking his brother away , the fourteenth applicant asked where they could find him , but received no reply .

The eleventh applicant , PERSON other brother , submitted that on TIME DATE he was sleeping with his family in a separate house within the same courtyard . He was awoken at TIME by his mother , the tenth applicant , who knocked on his door and said that PERSON had been taken away . The eleventh applicant rushed into the courtyard and his mother pointed towards the back of the yard , to the vegetable patch . The eleventh and fourteenth applicant tried to pursue the men who had taken their brother away , but they shouted at them to get back and made a few warning shots from automatic guns with silencers , so the applicants had to stop . The applicants noticed an ORG , an LOC truck and a UAZ vehicle that had been stationed QUANTITY from their house in FAC . The vehicles left in the direction of ORG .

The eleventh applicant submitted that he had immediately gone to the village military commander ’s office but was not allowed to see anyone . Then he had met a fellow villager PERSON who confirmed that he had just seen a convoy of an ORG , an ORG and a ORG passing through the military roadblock at the exit from LOC - Chu towards ORG .

In addition to their own detailed statements of facts , the applicants also submitted a hand - drawn plan of Martan - Chu indicating the places to which they referred .

The Government in their observations did not dispute the facts as presented by the applicants . They stated that it had been established that on DATE unidentified armed men wearing camouflage uniforms and masks had entered the applicants’ house at FAC in GPE - Chu and taken away PERSON to an unknown destination .

NORP Immediately after the detention of their family members the applicants started to search for them . On numerous occasions , both in person and in writing , the applicants and their family members applied to prosecutors of various levels , to ORG , to the Special Envoy of the NORP President in GPE for rights and freedoms , to military commanders , ORG ( ORG ) , to the administrative authorities , media and public figures . The applicants also personally visited detention centres in GPE as well as further afield in LOC . The search was primarily carried out by the first and the ninth applicant in respect of their husband and brother , respectively .

Besides personal visits , the applicants submitted letters to the prosecutors and other authorities in which they stated the facts of their relatives’ detention and asked for assistance and details on the investigation . The applicants have submitted copies of some of the letters they had written .

The applicants received hardly any substantive information from official bodies about the investigations into the disappearances and their results . On several occasions they were sent copies of letters by which their requests had been forwarded to the different ORG services . Below is a summary of the letters retained by the applicants and the replies they received from the authorities .

The applicants submitted that in DATE following PERSON arrest they had applied in person to the district military commander ’s office , the district department of the ORG , the district department of the interior ( ROVD ) , ORG ( the district prosecutor ’s office ) with inquiries about the fate of their relative .

Within this initial period the applicants also submitted written applications stating the circumstances of Mr PERSON ’s detention and requesting assistance in finding him . They did not retain copies of these applications , but on CARDINAL DATE the district prosecutor ’s office opened criminal investigation file no . DATE into ORG abduction by unidentified armed persons in camouflage uniforms under LAW . The applicants submitted that they had learnt of the investigation only on DATE when the first and the second applicants were questioned and granted victim status in the proceedings .

On DATE the district prosecutor ’s office informed the first applicant that the criminal investigation into her husband ’s abduction had been adjourned due to failure to identify the culprits . In response to this information , the first applicant requested the district prosecutor to allow her to have access to the case - file .

On DATE the first applicant submitted a statement about a missing person to the Special Envoy of the NORP President in GPE for rights and freedoms .

On DATE the first applicant wrote to the district prosecutor ’s office and the ROVD and asked them to carry out a proper investigation into her husband ’s abduction .

On DATE the district prosecutor ’s office replied to the first applicant that although the investigators had taken all possible steps to identify the perpetrators of the crime they had failed to do so . She was invited to inform the prosecutors of any new information about the kidnapping which came to her knowledge .

On DATE the applicants published a notice in the Marsho newspaper , with a description of the circumstances of their relatives’ apprehension and a call for any information about them .

On DATE the first applicant again requested the district prosecutor to give her access to the documents of the criminal investigation . On DATE the prosecutor ’s office invited the first applicant to consult the file .

On DATE the military prosecutor of ORG ( ORG ) in GPE forwarded the first applicant ’s complaint to the military prosecutor of military unit no . CARDINAL in GPE .

On DATE the district military commander informed the first applicant that , following an internal investigation , it had been established that his office had had no part in the apprehension of her husband and had no information about his whereabouts or the identity of the perpetrators .

On DATE the first applicant appealed the adjournment of the criminal investigation to ORG . She reasoned that ORG , and also PERSON , who had been detained on TIME by the same group of persons , could only have been detained by servicemen because of the use of military vehicles and the fact that these vehicles had been allowed to travel freely through the roadblock , despite the curfew in place . The first applicant requested the prosecutor to resume the investigation , to question the servicemen from the roadblock , the military commander ’s office and other law - enforcement bodies of the district about the details of the operation , to identify and question witnesses among local residents , and to collect and examine the bullets and cartridges left behind by the abductors who had shot at the applicant as she was trying to pursue them . He was requested to carry out the investigation urgently , before the traces of the detained men had been lost . The first applicant also requested the prosecutor to join the investigation to the CARDINAL opened into the abduction of PERSON .

On DATE the district prosecutor ’s office replied to the first applicant that the investigation had taken all possible steps to solve the crime , but had failed to identify the culprits .

On DATE the SRJI wrote to the district prosecutor on behalf of the first and ninth applicants and asked him to inform them of the state of the investigation in files nos . DATE and DATE . The letter further asked him to join the investigations . A copy of that letter was forwarded to ORG .

On DATE ORG informed the PERSON that on DATE the criminal investigations into the abductions of Mr PERSON and Mr PERSON had been joined . Further details would be communicated to the applicants directly .

On DATE the PERSON wrote to the district prosecutor ’s office and again asked for information about the progress of the investigation .

On DATE the district prosecutor ’s office replied to the SRJI that the CARDINAL criminal cases had been joined under file number PERSON and that on DATE ( to quote the text ) the investigation had been adjourned . Efforts to find the CARDINAL men would continue .

DATE . On DATE the PERSON asked the district prosecutor ’s office to inform them of the progress in the investigation and to carry out the following actions : to identify the provenance of the military vehicles involved in the abduction , to locate and review all registration documents related to the movement of military vehicles in the district on TIME in question , to identify the authorities that had carried out special operations in the district on DATE and to question their officers about the detention of ORG and PERSON , and to question the servicemen of the Urus - Martan military commander ’s office and other officials in charge of enforcing the curfew .

In TIME after his brother ’s abduction , on DATE , the fourteenth applicant went to the military commander of the village . He submitted that the commander had told him that he did not know who had detained his brother . The commander also told him that on DATE , on DATE , he had received a warning that an operation was being prepared in their village , but that later this operation had been cancelled . He had not been informed about the reasons for the operation or for its cancellation . He also allegedly promised to help them if PERSON had been detained by the military , but said that he would not be able to do anything if he had been detained by the ORG .

The applicants submitted that in DATE they applied in person with inquiries about the fate of their relative to the district military commander ’s office , the ORG , ROVD and the prosecutor ’s office . The ninth applicant also asked the head of ORG to order an investigation of his brother ’s detention by unidentified servicemen .

At some point the applicants submitted written applications to the authorities stating the circumstances of Mr PERSON ’s detention and requesting assistance in finding him . They did not retain copies of these applications , but kept copies of the later applications . On DATE the ninth applicant requested the district prosecutor ’s office to open a criminal investigation into his brother ’s abduction or to inform him if his brother had been accused of any crime . He referred to their previous unsuccessful applications to various law - enforcement structures .

On DATE the ninth applicant wrote to the member of ORG elected from GPE and to the Speaker of ORG , complaining about his brother ’s disappearance . He stated that they had applied to various law - enforcement bodies in vain . The ninth applicant asked the PERSON to create a commission to investigate the phenomenon of “ disappearances ” in GPE .

On DATE the district prosecutor ’s office informed the ninth applicant that their office had opened criminal proceedings into his brother ’s kidnapping .

On DATE the ninth applicant was granted victim status in criminal investigation file no . DATE opened into his brother ’s abduction by unidentified persons .

On DATE the tenth , eleventh , fourteenth and fifteenth applicants asked the district prosecutor ’s office to grant them victim status in the proceedings concerning the abduction of their son and brother . It is unclear if these requests were granted .

On DATE the district prosecutor ’s office informed the ninth applicant that on DATE criminal investigation no . DATE , opened on DATE , had been adjourned due to failure to identify the culprits . The applicant was informed of the possibility to appeal .

On DATE the military prosecutor of military unit no . CARDINAL forwarded the ninth applicant ’s complaint to the district prosecutor ’s office and stated that there were no grounds to suspect the involvement of military servicemen .

On DATE the ninth applicant appealed against the adjournment of the criminal investigation to ORG . He reasoned that his brother could only have been detained by servicemen because of the use of military vehicles and the fact that the vehicles had been allowed to travel freely through the roadblock , despite the curfew in place . The ninth applicant requested the prosecutor to resume the investigation , to question the servicemen of the roadblock , of the military commander ’s office and other law - enforcement bodies of the district about the details of the operation , to identify and question witnesses among local residents , to collect and examine bullets and cartridges left behind by the abductors who had shot at DATE applicant as they were trying to pursue them . The complaint requested that the investigation be carried out urgently , before the traces of PERSON had been lost .

On DATE ORG forwarded the ninth applicant ’s complaint to the district prosecutor ’s office .

On DATE the ninth applicant requested the district prosecutor ’s office to allow him access to the materials of the adjourned criminal investigation into his brother ’s abduction .

In their observations the Government did not dispute the information concerning the investigations as presented by the applicants . Relying on information obtained from ORG , they referred to other procedural steps which had not been mentioned by the applicants . However , despite specific requests from ORG , the Government did not submit copies of most of the documents to which they referred ( see below ) . The Government submitted the following .

On DATE the district prosecutor ’s office opened criminal investigation file no . CARDINAL concerning the abduction of PERSON on DATE . According to a document issued on DATE by the acting district prosecutor , the main version of the crime examined by the investigation was the involvement of “ power structures and military units ” ( “ силовых структур и воинских подразделений ORG ) .

On DATE the first applicant was questioned and granted victim status in the proceedings . She was also questioned again on several occasions . She stated that on TIME DATE CARDINAL armed persons wearing military uniforms who had spoken NORP and NORP had entered their house and abducted her husband . The second applicant was questioned on DATE and gave similar statements ; however , he stated that there had been CARDINAL abductors .

On DATE the district prosecutor ’s office opened criminal investigation file no . CARDINAL concerning the abduction of PERSON on DATE .

According to the Government , on DATE the investigators granted victim status to the ninth applicant . When questioned he stated that at TIME on DATE he had returned from ORG and had learnt from his brother , the fourteenth applicant , that at TIME on that TIME unknown armed persons had entered their house and taken away their other brother , PERSON . The tenth and the fifteenth applicants gave similar statements on unspecified dates .

The Government stated that other relatives of PERSON , notably , DATE applicants , had not sought the status of victims in the proceedings related to his disappearance and had not been accorded it .

DATE . On DATE the investigation of the CARDINAL cases was joined and the case file was assigned number CARDINAL ( to quote the text ) .

The Government submitted to the ORG one witness statement made by the first applicant , dated DATE , in which she described the circumstances of her husband ’s arrest and the fact that she had been hit in the face by CARDINAL of the intruders . No other statements were produced .

In their observations the Government referred to witness PERSON ’s statement of DATE that on TIME DATE [ should probably be DATE ] a large part of his supply of cut wood for DATE , which had been stored near the cemetery , had been stolen . He had seen the tracks of heavy military vehicles , such as APCs or LOC trucks , near that place . On DATE the investigation decided not to open criminal proceedings in relation to the theft in view of the expiration of the statutory time - limits .

The Government noted that the ORG statements that their relatives had been detained by servicemen could not be confirmed . The applicants did not recall any details of the clothing , arms or distinctive marks on the uniforms of the abductors .

The Government also noted that the investigation had found no grounds to support the first applicant ’s allegations that she had been hit during the arrest of her husband , as she and other witnesses had not mentioned this during questioning . As to the first applicant ’s statement that the armed men had also taken her husband ’s passport , the Government informed the ORG that the investigators had decided not to open criminal proceedings in this respect , due to expiration of statutory time - limits . Finally , the ORG contended that PERSON had not been on the register of the local tuberculosis health centre , despite the ORG allegation that he had suffered from that disease .

According to the ORG , the investigators had sought information about the CARDINAL men from various ORG authorities . On unspecified dates the district military commander ’s office , the ORG district department of the ORG and “ other power structures ” stated that they had no information about the carrying out of special activities on TIME in question in Martan PERSON . Their offices had not detained ORG and PERSON . The law - enforcement agencies of GPE informed the investigators that they had never detained or arrested the CARDINAL missing men , nor carried out a criminal investigation in their respect . The investigation failed to establish the whereabouts of Mr PERSON and PERSON PERSON . Requests for information sent by the investigators in DATE and DATE produced no new results in the investigation of the crime .

As it appears from the documents submitted by the ORG , the investigation had been suspended and reopened a number of times . The applicants had been occasionally informed of these developments . According to the ORG , the investigation was under the control of ORG .

NORP Despite specific requests by ORG did not submit a copy of the file in criminal case no . DATE , providing only copies of decisions to suspend and resume the investigation and to grant victim status , notifications to the applicants of the suspension and reopening of the proceedings and CARDINAL witness statement mentioned above . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in breach of LAW of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings .

DATE . On DATE the first and ninth applicants applied to ORG ( “ the town court ” ) . They complained that the district prosecutor ’s office had failed to effectively investigate the disappearances and requested to be granted access to the case file .

On DATE the town court partially allowed the complaint based on the district prosecutor ’s office ’s failure to take effective steps and to investigate the abduction . The court ordered the district prosecutor ’s office to resume the investigation and to carry out a number of investigative actions as requested by the applicants , such as questioning the residents of Martan - Chu and the servicemen of the military roadblock situated on the road towards ORG who had been on duty on TIME DATE . The court refused to grant the applicants access to the case file , stating that that right was accorded to victims only on completion of the investigation , and not when the proceedings were adjourned . On DATE ORG upheld this decision .

For a summary of relevant domestic law see Akhmadova and PERSON GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE .

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

On DATE the applicant sued PERSON , GPE , GPE and GPE before ORG ( FAC ) . He sought payment .

The proceedings were terminated on DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG ( PERSON ) .

On DATE the applicant lodged a claim for compensation against GPE , GPE and PERSON with ORG .

The proceedings were terminated by the judgment of ORG ( Sąd Apelacyjny ) on DATE . It is not certain whether a cassation appeal was available in this case . On DATE , the date on which the application was lodged with the ORG , the proceedings were pending before ORG .

On DATE , the applicant 's brother , sued him before the Tomaszów Mazowiecki District Court , seeking his eviction .

The proceedings were terminated on DATE by the judgment of ORG . A cassation appeal was not available in this case .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .