Remainder inadmissible;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);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

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

On DATE the applicant was arrested by the GPE police and brought to their station concerning an alleged burglary . In their report the police stated that the applicant , together with a number of others , had been caught after the act and that several objects used for the commission of the alleged crime had been seized . The applicant gave a statement to the officers . According to the minutes of his interrogation , the applicant confessed to CARDINAL count of attempted burglary , and then signed the document using his nickname , notwithstanding a prior reference in TIME noting that he was “ illiterate ” . The TIME further stated that , pursuant to LAW ( see paragraph CARDINAL below ) , the applicant had read them , at his own request , and had had no objections .

On DATE , at around TIME according to his own estimate , the GPE police again brought the applicant , together with several others , to their LOC in order to question him about a criminal offence . There was no prior attempt to serve him with the summons . The Government maintained that the reason for this had been the danger that the applicant might otherwise have absconded or tampered with the evidence .

The applicant maintained that his lawyer , ORG , had been informed of this arrest by his relatives and had hence managed to arrive in time to briefly talk to him before the interrogation . The applicant apparently told PERSON that he had already been physically abused by the police , who had attempted to obtain his confession . V.J.Đ. himself stated that the applicant had seemed “ mentally broken ” and had been walking with a limp .

The subsequent police interrogation began at TIME and ended by TIME , at which point the applicant was released . ORG ( PERSON javni tužilac ) had been informed of the hearing at TIME , but did not attend it . In the course of the interrogation the applicant was asked to give a statement concerning “ a burglary of a store in LOC ” . The applicant , however , declined to do so and noted that he had retained V.J.Đ. as his legal counsel . TIME of the interrogation further stated that the applicant was “ illiterate ” , and bore his fingerprint instead of a signature . With reference to LAW , the minutes , lastly , noted that the applicant had read them , at his own request , and had had no objections . The minutes were also signed by V.J.Đ.

The applicant maintained that he had been provided with no food whilst in police custody .

On DATE , at around TIME according to the applicant ’s own estimate , he was brought , yet again , by the GPE police to their LOC , without having been previously summoned . The Government maintained that , just like before , the reason for this had been the danger that the applicant might otherwise have absconded or tampered with the evidence .

NORP The applicant claimed that he had once again been beaten by the officers who had attempted to obtain his confession . The applicant apparently asked that V.J.Đ. be informed of his arrest , but the police ignored this demand . Instead , the applicant was provided with a legal aid lawyer , GPE , who , it is claimed , appeared only briefly to sign the minutes of the interrogation and left shortly thereafter .

The minutes in question contained : ( i ) an indication that the applicant was being charged with numerous counts of burglary ; ( ii ) his detailed confession of how he had committed those offences ; ( iii ) his statement to the effect that he did not want to retain ORG as his legal counsel ; and ( iv ) his declaration that he had given his statement in the absence of “ any physical or mental coercion ” .

The minutes further noted the questions posed by GPE , including whether the applicant was trying to protect anyone with his confession . ORG had been informed of the hearing on DATE at TIME , but did not attend it . Finally , the TIME stated that the applicant was “ illiterate ” , but then went on to note , with reference to LAW , that he had read them , at his own request , and had had no objections . The applicant did not sign the minutes , having instead left his fingerprint . The interrogation lasted TIME and TIME , following which the applicant was released .

The applicant maintained that he had been provided with no food whilst in the police station .

On DATE , at around TIME according to his own estimate or at TIME according to official records , the police arrested the applicant once more , but , this time , ordered his detention for a period of TIME . The applicant received no prior summons . He was , however , provided with a detention order , which stated that he had been deprived of his liberty on suspicion of having committed numerous burglaries . The order relied on a number of provisions of LAW ( see paragraph CARDINAL below ) , but did not contain any substantiation as to the factual circumstances warranting the applicant ’s detention or his prosecution .

On DATE the police issued a report supplementing the criminal charges against the applicant , as well as another CARDINAL defendants , concerning CARDINAL separate counts of burglary . The report included , inter alia , a description of the crimes and referred to the evidence obtained .

On DATE lodged an appeal on behalf of the applicant . Therein , inter alia , he maintained that the impugned detention order had been merely a template devoid of any meaningful reasoning . V.J.Đ. further informed the investigating judge that , following her son ’s detention , the applicant ’s mother had been contacted by a lawyer who had offered his services . In particular , the lawyer had said that he knew that the applicant had already retained V.J.Đ. but explained that it would be better for him to change legal counsel as this would facilitate his release from police custody .

On DATE the investigating judge of ORG ( PERSON ) in GPE rejected the above appeal . She recalled , inter alia , that on DATE the applicant had been heard in the presence of his legal aid lawyer , that the prosecuting authorities had obtained several witness statements incriminating the applicant , and that the applicant had both been convicted of crimes in the past and had “ continued committing crimes ” thereafter . The judge lastly specified that there were CARDINAL separate criminal cases pending concurrently against the applicant before ORG in GPE , indicating that he had “ committed ” several property - related crimes in a short period of time . This , in turn , meant that , if released , the applicant was likely to re - offend and/or abscond .

Lastly , on DATE the applicant was examined by the on - duty doctor of FAC ( GPE zatvor ) in GPE , but “ no disease was established , i.e. he was [ deemed ] healthy ” . The Government provided a certificate to this effect issued by the prison doctor on DATE , as well as copies of the relevant medical protocol dated DATE . The said protocol , however , was mostly illegible .

On DATE ORG in GPE requested that a preliminary judicial investigation ( istraga ) be instituted against the applicant in respect of numerous counts of burglary , and proposed that his detention be extended .

On DATE the investigating judge instituted the proceedings sought and extended the applicant ’s detention for DATE . Before so doing , she invited the applicant to give a statement in the presence of ORG and ORG and informed him about the evidence put forth by the prosecution . The applicant , however , refused to respond to the charges in question . He referred , instead , to the abuse suffered at the hands of the police , as well as the alleged breach of his procedural rights up to that point . In the reasoning as regards the applicant ’s continued detention , inter alia , the judge stated that the applicant could , if released , re - offend , abscond or unduly influence the witnesses .

On DATE the applicant ’s continued detention was confirmed by the CARDINAL - judge panel of ORG , which fully accepted the reasoning of the investigating judge .

On DATE ORG CARDINAL - judge panel confirmed the investigating judge ’s decision to institute a preliminary judicial investigation .

In DATE the investigating judge heard many witnesses , including witnesses GPE and GPE On DATE the former stated that his head had been slammed against the wall by the police in order to elicit his statement , whilst the latter recounted that he too had been threatened by the police with a baseball bat and for the same purpose .

On DATE ORG indicted ( optužilo ) the applicant for the crimes in question .

On DATE V.J.Đ. filed a formal objection against the indictment ( podneo prigovor protiv optužnice ) , but on DATE the CARDINAL - judge panel of ORG rejected this objection .

On DATE V.J.Đ. informed ORG that the applicant had recently been photographed by the police in prison . He requested clarification as to what had been the legal basis for this exercise , and expressed concern that the photograph could be used to unlawfully secure his client ’s identification in the course of future identity parades . The Government submitted that the applicant had been photographed only once , on DATE , upon admission to the prison , and , further , that this photograph had been used solely for the purpose of supplementing his prison identity papers ( lični list ) .

On DATE PERSON wrote again to ORG , stating that on DATE , CARDINAL DATE and DATE he had visited the applicant in prison , and that each time prison staff had been present during their conversations . Indeed , they had been close enough to be able to both hear and see everything . V.J.Đ. requested an explanation as to why the applicant had not been entitled to unsupervised communication with his counsel . As it subsequently transpired , on DATE ORG had issued a standing permit ( stalna dozvola ) to ORG , authorising him to visit the applicant in prison . The said permit stated that visits could last up to CARDINAL minutes and take place under the supervision , i.e. in the presence , of an official to be designated by the prison governor . The ORG maintained that the supervision in question meant visual observation only , not listening to the conversations between the applicant and his lawyer .

DATE and DATE CARDINAL hearings were held or adjourned before ORG .

In the presence of ORG , the applicant described the abuse which he had suffered whilst in police custody , and gave a physical description of the officer who had engaged in his ill - treatment on DATE . The applicant added that on DATE he had sustained injuries to his legs and back , and had also been temporarily unable to hear on his left ear . Upon release the applicant went to a local hospital but was denied treatment because he had forgotten to bring his medical insurance card . When the applicant returned with this card , however , the hospital staff told him “ to come back DATE ” . On DATE , having been beaten by the officers once again , the applicant asked for V.J.Đ. to be informed of his arrest , but officer PERSON refused to do so . Officer PERSON was also present . The applicant explained that he had , ultimately , been coerced into signing a statement already prepared by the police without his participation . At CARDINAL point , GPE , his police - appointed lawyer , appeared in the interrogation room merely in order to stamp and sign the same statement . As regards the charges against him , the applicant specifically denied some of them whilst in respect of others he refused to answer questions .

Officer PERSON stated that TIME and DATE were accurate , that he had not personally seen the applicant being abused or even heard anything to that effect . The officer also had no recollection as to whether the applicant had been duly summoned to appear before the police , but recalled that the applicant had constantly moved around , which was why he had been difficult to find .

Officer PERSON noted that he had not taken part in the interrogation of CARDINAL DATE , and had only a vague recollection of the interrogation which had taken place DATE . In particular , he remembered that the applicant had said that he did not want to retain V.J.Đ. as his counsel since the latter had always advised him to give no statements to the police and he had already had enough of the repeated arrests and interrogations . PERSON had no information to offer as to whether the applicant had been duly summoned to appear before the police , but recalled that the applicant ’s police - appointed lawyer had been present throughout the interrogation . Finally , PERSON affirmed that the applicant ’s statement was accurately recorded in TIME of his interrogation , and added that he had personally informed the applicant of their content before he signed them .

CARDINAL witnesses were subsequently heard before ORG , some of whom confirmed that they had “ bought merchandise ” from the applicant . Witness PERSON further stated , inter alia , that in DATE he had seen several persons fleeing a crime scene in a red car .

Witness PERSON , however , stated that the police had beaten him with a baseball bat in order to force him to confess to a number of crimes , as well as to incriminate the applicant . In support of this allegation he provided ORG with a copy of a medical certificate documenting his injuries of CARDINAL DATE .

NORP Witness GPE stated that he had accompanied the applicant from the police station to the hospital , on which occasion he had seen that the applicant had been injured and had been “ walking with a limp ” ( see paragraphs CARDINAL and DATE above ) .

Witness GPE stated that he had been invited by the police to act as the applicant ’s legal aid lawyer on DATE . Prior to the interrogation , he had had a conversation with the applicant who had informed him that he had already retained legal counsel . The applicant was nevertheless willing to accept GPE as his lawyer on that occasion only and in order to be released ( da idem odavde ) . The applicant then confessed , in some detail , to the crimes in question . N.D. admitted that he had not inspected the case - file since the applicant had refused to communicate with him as regards the substance of the charges at issue , re - affirming that he had already retained a lawyer for this purpose . GPE added that the applicant had had no visible injuries at that time , and that he had warned the applicant that the confession given to the police would be used as evidence against him . Officer PERSON interrogated the applicant . He did so by posing questions concerning specific places , burglaries and stores . GPE lastly noted that he had not seen in DATE of practice a confession such as the applicant ’s , and had therefore asked the applicant whether he was “ protecting anyone ” . The applicant had maintained that he was not .

Witness PERSON denied any connection to the applicant , but stated that he too had been physically abused by the police on a number of occasions . PERSON also provided a medical certificate in this regard .

On DATE ORG decided to exclude the applicant ’s statement of CARDINAL DATE from the case file . It explained , inter alia , that there was indeed evidence to the effect that the applicant had been repeatedly arrested without having first been properly summoned which , in and of itself , indicated a sort of police harassment aimed at obtaining his confession . Further , there was no doubt that the applicant had chosen V.J.Đ. as his legal counsel and had never revoked this authorisation . The police , nevertheless , questioned the applicant in his chosen counsel ’s absence , and appointed a legal aid lawyer for no apparent reason .

On DATE ORG ( Okružni sud ) in GPE quashed this decision and declared the applicant ’s statement of DATE legally valid . It noted that , as indicated in TIME , the applicant had specifically said that he did not want PERSON to act as his legal counsel . The issue of whether the applicant was duly summoned was irrelevant , and the conditions for the appointment of a legal aid lawyer were clearly fulfilled . The applicant was also properly advised of his procedural rights .

On DATE officer PERSON stated that on DATE he had indentified a red car , which had apparently been seen leaving the crime scene , and had arrested the CARDINAL persons whom he and his colleague had found in or around it . These persons were subsequently taken by other officers to the police station .

On DATE ORG heard the parties’ closing arguments , found the applicant guilty of having , effectively , committed CARDINAL burglaries , i.e. QUANTITY DATE and DATE and CARDINAL on DATE , and sentenced him to CARDINAL half years’ imprisonment for a single crime of “ extended burglary ” ( jedno produženo krivično delo teške krađe ) . ORG further observed that there were CARDINAL separate criminal cases pending concurrently against the applicant and considered this as an aggravating circumstance in sentencing . The applicant ’s detention was prolonged until the judgment in his case became final . ORG also noted that , in the meantime , it had already reviewed and extended the applicant ’s detention on DATE , CARDINAL DATE , DATE and DATE , and that each time its decisions had been confirmed by ORG on appeal . As regards the applicant ’s conviction concerning the burglaries committed DATE and DATE , ORG took note of the applicant ’s confession of CARDINAL DATE , recalled that he had been found in possession of stolen property , and emphasised that several witnesses had confirmed that they had bought such property from the applicant . Concerning the burglary of CARDINAL DATE ORG relied on the applicant ’s confession of the same date and the statements given by witnesses ORG and ORG Testimony indicating that certain witnesses had been ill - treated by the police in order to incriminate the applicant was either dismissed as irrelevant or simply ignored .

On CARDINAL DATE ORG lodged an appeal , seeking a harsher sentence .

On DATE and DATE V.J.Đ. filed an appeal on behalf of the applicant , noting , inter alia , that : ( i ) his statement of CARDINAL DATE had been obtained as a result of police brutality and in the absence of his chosen counsel , there being no other evidence which could have warranted a conviction ; ( ii ) the police - appointed lawyer had never offered any genuine legal representation to the applicant and had instead been there to assist the police in their interrogation ; ( iii ) the applicant ’s complaints of ill - treatment had simply been ignored by ORG ; ( iv ) the prison staff had not allowed the applicant free communication with his chosen counsel ; ( v ) the CARDINAL separate criminal proceedings which had been pending concurrently against the applicant could not lawfully have been taken into account as an aggravating circumstance , but that since they were this amounted to an implied breach of the applicant ’s right to be presumed innocent .

On DATE ORG rejected the appeals lodged by the parties .

On DATE V.J.Đ. filed an appeal on points of law ( zahtev za vanredno ispitivanje zakonitosti pravosnažne presude ) on behalf of the applicant , re - stating his submissions made earlier .

On DATE , however , ORG ( PERSON ) rejected this appeal .

On DATE , having served his sentence imposed by ORG , the applicant was released from LOC in GPE .

DATE PERSON reads as follows :

“ ( CARDINAL ) Whoever acting in an official capacity uses force or threats or other inadmissible means ... with intent to extort a confession or another statement from an accused , a witness , an expert witness or another person , shall be punished with imprisonment of from DATE .

( CARDINAL ) If the extortion of a confession or a statement is aggravated by extreme violence or if the extortion of a statement results in particularly serious consequences for the accused in the criminal proceedings , the offender shall be punished by a minimum of CARDINAL years’ imprisonment . ”

Article CARDINAL provides , inter alia , that all ORG bodies and agencies shall respect the right of all persons to be presumed innocent unless and until their guilt has been established by a final court decision .

Article CARDINAL § CARDINAL provides , inter alia , that a suspect , when first questioned , shall be informed of the charges and evidence against him .

Article CARDINAL prohibits , inter alia , any and all violence aimed at extorting a confession or a statement from the suspect and/or the accused , or indeed any other person involved in the proceedings .

Articles CARDINAL § CARDINAL and CARDINAL provide that a court decision may not be based on evidence obtained in breach of domestic legislation , or in violation of ratified international treaties , and that any such evidence must be excluded from the case file .

Articles DATE , DATE , DATE and CARDINAL , read in conjunction , provide , inter alia , that formal criminal proceedings ( krivični postupak ) may be instituted at the request of an authorised prosecutor . In respect of crimes subject to prosecution ex officio , such as the CARDINAL at issue in the present case , the authorised prosecutor is ORG personally . The latter ’s authority to decide whether to press charges , however , is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed . It makes no difference whether ORG has learnt of the incident from a criminal complaint filed by the victim or another person , or indeed even if he has only heard rumours to that effect .

Article CARDINAL provides , inter alia , that a criminal complaint may be filed in writing or orally with the competent ORG , as well as that a court of law , should it receive a complaint of this sort , shall immediately forward it to the competent ORG .

Article CARDINAL provides that should ORG decide that there is no basis to press charges , he must inform the victim of this decision , who shall then have the right to take over the prosecution of the case on his own behalf , in the capacity of a “ subsidiary prosecutor ” .

Articles CARDINAL § CARDINAL , CARDINAL , CARDINAL § CARDINAL , CARDINAL and CARDINAL , taken together , provide , inter alia , that a suspect may be arrested by the police , without an attempt to be summoned first , if : ( i ) he is in hiding or there is a danger of him absconding ; ( ii ) there are circumstances indicating that he may tamper with evidence or influence witnesses and/or other participants in the criminal proceedings ; and ( iii ) there are grounds to believe that he may re - offend . The suspect must , however , then either be brought before an investigating judge , within , in principle , a maximum of TIME , or be formally detained by the police , which detention can not exceed TIME . In the latter case , the suspect must be served with the provisional detention order within TIME as of his arrest and may lodge an appeal against it with the investigating judge who shall have to decide upon it within TIME . Should the appeal be rejected and after TIME have expired , the suspect shall either be released or brought to the investigating judge for questioning . The investigating judge shall have the power to order the suspect ’s detention for DATE .

Articles CARDINAL § CARDINAL , CARDINAL , CARDINAL , CARDINAL § § CARDINAL and CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL , read in conjunction , provide , inter alia , that a person arrested by the police shall have the right to remain silent , as well as the right to be heard in the presence of his chosen counsel , or , in the absence thereof and depending on the seriousness of the charges , be provided with a legal aid attorney paid for by the ORG . If the arrested person ’s interrogation has been carried out in accordance with the law , his statement given on this occasion may be used as evidence in the subsequent criminal proceedings .

Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL , taken together , further provide that , inter alia , the person arrested by the police shall have the right to contact his lawyer , directly or through family members , including by means of a telephone .

Article QUANTITY provides , inter alia , that a person arrested by the police shall be entitled to read TIME of his interrogation before he signs them , or have TIME read to him . Should the person in question be illiterate , he shall be allowed to use his right hand index fingerprint instead of a signature .

Article CARDINAL § CARDINAL provides , inter alia , that the suspect shall be entitled to request that his medical examination be ordered by the investigating judge . The investigating judge ’s decision to this effect , as well as the medical doctor ’s subsequent opinion , shall be included in the case file .

Article QUANTITY and CARDINAL provides that a defendant , whilst in detention , shall have the right to confidential communication with his legal counsel . This communication may be supervised only during the pre - indictment stage of the proceedings , and even then only by means of visual , not audio , monitoring .

Article CARDINAL provides that the costs of criminal proceedings shall include , inter alia , the defence counsel ’s fees , whilst Article CARDINAL § CARDINAL states that should the court find the defendant guilty it shall order him to reimburse all costs .

Article CARDINAL § CARDINAL provides that general complaints ( pritužbe ) concerning the conduct of police operations may be filed with the competent ORG .

LAW ) provides , inter alia , that a person who due to an unlawful action undertaken by a State body or an error on its part has been deprived of his liberty in the absence of proper legal basis ( neosnovano ) shall be entitled to recover any damages suffered .

In accordance with LAW , as amended in DATE , the re - opening of a criminal trial may be sought where ORG or an international court has found that the convicted person ’s rights have been breached in the trial .

Articles CARDINAL , CARDINAL and CARDINAL of LAW , taken together , provide , inter alia , that anyone who has suffered fear , physical pain or mental anguish as a consequence of a breach of his reputation , personal integrity , liberty or of his other personal rights ( prava ličnosti ) shall be entitled to seek injunctive relief , sue for financial compensation and request other forms of redress “ which might be capable ” of affording adequate non - pecuniary satisfaction ( see , for instance , judgment no . CARDINAL/CARDINAL adopted by ORG in GPE on DATE , which has , in its relevant part , been upheld by ORG on DATE , awarding compensation for , inter alia , an implied breach of the presumption of innocence under LAW ; see also judgment no . CARDINAL rendered by ORG in GPE on DATE , which was ultimately confirmed by ORG on DATE , ordering the cessation of discriminatory treatment and the publication of an apology under LAW and CARDINAL ) .

DATE . Article CARDINAL § CARDINAL provides that a legal entity ( pravno lice ) , which includes the ORG , shall be liable for any damage caused by CARDINAL of “ its bodies ” to a “ third person ” . This provision includes ORG liability for any judicial or police misconduct and/or malfeasance ( see , for example , the judgments of ORG of DATE , Rev. PERSON , and DATE , GPE no . CARDINAL/CARDINAL ) .

The Government provided the ORG with case - law indicating that a plaintiff complaining about the lawfulness of his detention , as well as the related issues concerning his private life , including the unlawful taking of photographs , had been able to obtain redress before the domestic courts . Specifically , on DATE ORG in GPE , inter alia , applied LAW , recognised the alleged breaches of ORG and CARDINAL of the LAW , and ordered the respondent ORG to pay the plaintiff a specified amount of compensation ( ORG . CARDINAL ) . On DATE ORG in Novi Sad upheld this judgment and increased the compensation awarded ( Gž . br . CARDINAL/CARDINAL ) .

The relevant sections of this report read as follows :

“ CARDINAL . The ORG ’s delegation heard numerous allegations of deliberate physical ill - treatment of persons deprived of their liberty by the police throughout GPE . Some of the allegations concerned ill - treatment at the time of or immediately following apprehension , whereas others related to ill - treatment during police questioning and , more particularly , during interrogation by officers of the criminal police . Many detainees interviewed by the delegation alleged that they had been slapped , punched , kicked or beaten with batons during police custody . A number of allegations received included recent accounts of beatings on the palms of the hands or soles of the feet , the placing of a plastic bag over the detainee ’s head to cause temporary asphyxiation , or the infliction of electric shocks on different parts of the body . The ill - treatment alleged was in several cases of such a severity that it could well be considered to amount to torture .

... Further , in almost all of the police stations visited in GPE , the delegation found baseball bats and similar non - standard and unlabelled objects in offices used for interrogation purposes .

The information at the ORG ’s disposal suggests that persons suspected of a criminal offence run a significant risk of being ill - treated by the police in GPE at the time of their apprehension and during TIME in police custody . The number and severity of allegations of police ill - treatment received calls for urgent action by the national authorities ...

As regards fundamental safeguards against ill - treatment of persons deprived of their liberty by the police ( e.g. the right to have the fact of one ’s detention notified to a close relative or third party ; the rights of access to a lawyer and a doctor ) , at present their practical implementation leaves a lot to be desired ; the ORG has made detailed recommendations in this area ... ”

“ CARDINAL . The number of allegations of ill - treatment by the police heard by the ORG ’s delegation in the course of the DATE visit was lower , and the ill - treatment alleged less severe , than during the ORG ’s first periodic visit in DATE .

That said , the delegation did receive a number of allegations of physical ill - treatment ( consisting of punches , kicks , truncheon blows , blows with a thick book or with a wet rolled newspaper , and handcuffing to fixed objects in a hyper - extended position ) during questioning by criminal police officers , in order to obtain confessions or other information . It would appear that juveniles suspected of serious criminal offences are particularly exposed to physical violence . Further , the delegation received some accounts of verbal abuse and threats during questioning ...

Most of the allegations of ill - treatment related to periods some time before the delegation ’s visit ; consequently , any injuries which might have been caused by the ill - treatment alleged would almost certainly have healed in the meantime ...

It should also be noted that , in several police stations visited ( e.g. in PERSON , PERSON , PERSON , ORG na GPE , GPE and GPE ) , the delegation again found – in offices used for police interviews – various non - standard issue items ( such as baseball bats , iron rods , wooden sticks , thick metal cables , etc ) . The ORG reiterates its recommendation that any non - standard issue objects be immediately removed from all police premises where persons may be held or questioned . Any such items seized during criminal investigations should be entered in a separate register , properly labelled ( identifying the case to which they refer ) and kept in a dedicated store .

As stressed by the ORG in the report on its first visit to GPE , it is axiomatic that judges must take appropriate action when there are indications that ill - treatment by the police may have occurred . In this connection , it should be noted that some persons interviewed during the DATE visit alleged that the investigating judges before whom they had been brought with a view to being remanded in custody ignored their complaints of police misconduct ... ”


CASE OF KEVIN O'DOWD v. THE UNITED KINGDOM

No violation of Art. 5-3;Remainder inadmissible

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

On DATE , the applicant was arrested , interviewed and charged with rape , false imprisonment and indecent assault . It was alleged that over DATE in DATE , the applicant had raped a woman in her flat , imprisoned her in his car and then indecently assaulted her in his flat . DATE , the complainant gave birth to a baby boy and DATE after that , in DATE , she made her first complaint to the police .

On DATE , the applicant 's case was sent for trial at ORG pursuant to section CARDINAL of LAW DATE .

On DATE , the applicant made an application for bail . As he had served DATE imprisonment in respect of a previous conviction for rape and an offence of violence in DATE , under LAW of ORG and LAW DATE as amended ( “ the DATE LAW ) bail could only be granted if the judge was satisfied that there were “ exceptional circumstances ” which justified the grant of bail . The judge was not so satisfied and bail was refused .

On DATE , the applicant pleaded not guilty to all charges and a trial date was fixed for DATE . A further bail application was refused .

On DATE , the applicant dispensed with the services of his solicitors and counsel and served his own defence statement . The judge did not alter the trial date but gave the applicant time to reconsider his position . On DATE , the applicant indicated that he would like to have the services of his former legal team and the judge reinstated the representation order . As valuable time had been lost , the trial date was vacated and rearranged for DATE . A further bail application was refused .

At DATE , the applicant again dispensed with the services of his lawyers . When the case was called on DATE , however , he was represented by leading and junior counsel . After a TIME adjournment , the applicant once again dispensed with the services of his lawyers . DATE , he asked for his legal team to be reinstated and this was done . Defence counsel then indicated that as there had been a delay in disclosure , an application to stay the proceedings would be made . It was agreed to hear the application DATE .

Under the Prosecution of Offences ( Custody Time Limits ) Regulations DATE ( “ the DATE LAW ) as amended , the maximum period of custody between the sending for trial and the start of the trial ( taken to be the date on which the jury is sworn in ) in a case such as the applicant 's was DATE . That period was due to expire at TIME on DATE . The prosecution accordingly applied to extend the custody time limit . Under section GPE ) of LAW DATE ( “ the DATE LAW ) , a request for extension of the custody time limit must be refused where the court is not satisfied that the prosecution has acted with all due diligence . The application made by the prosecution in the applicant 's case was refused because the court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure .

NORP However , under LAW , the right to bail upon expiry of the custody time limit was subject to LAW ( see paragraph CARDINAL below ) . Accordingly , on DATE , a further application for bail was refused by Judge PERSON in ORG because he was not satisfied that “ exceptional circumstances ” justifying the grant of bail existed .

On DATE , the defence requested access to hospital and telephone records for the first time . As a result , the case was removed from the court agenda and relisted for mention on DATE . On DATE , the trial was re - fixed for DATE and a further application for bail was refused .

On DATE , an application for bail was made in the High ORG and was refused on the basis that no exceptional circumstances existed .

On DATE , the case came before ORG for the consideration of CARDINAL preliminary matters of law . The applicant once again dispensed with the services of his lawyers and the representation order was revoked . As a result , it was not possible to deal with the issues of law , which were accordingly held over for consideration on DATE of trial .

On DATE , the trial began . The applicant was acting in person but counsel had been appointed by the court to cross - examine the complainant . Issues arose regarding discovery , abuse of process , admissibility of photographs and the use of screens . The applicant from time to time absented himself from the court room .

On DATE the court began to swear in the jury . However , CARDINAL member of the panel had been at school with the applicant and another , who was related to the applicant , made an observation in public which made it necessary to release the entire panel . The applicant then applied for and was granted legal representation . On DATE , the applicant 's case was transferred to ORG as he was too well - known in the PERSON area .

On DATE , the case came before ORG . The court indicated that it was prepared to hear the case in DATE but the applicant declined this date on the ground that it was unsuitable . The judge subsequently fixed the trial to begin on DATE in order to accommodate the needs of the defence regarding preparation and availability of counsel . PERSON submissions as to the grant of bail were made and discussion was adjourned until DATE in order for skeleton arguments to be prepared in writing .

A further application for bail was heard on DATE . The applicant 's counsel made extensive submissions in support of the application , with particular reference to the ORG 's judgment in PERSON v. the GPE [ ORG ] , no . CARDINAL , ORG CARDINALII . She argued that once the time limit under LAW had expired and was not extended , a defendant should be admitted to bail . Accordingly , in her submission , the applicant had been unlawfully detained since DATE .

Judge PERSON disagreed . He considered , first , that the words “ subject to LAW ” in the DATE Regulations meant “ unless this is a case where LAW applies ” . He found that section CARDINAL clearly did apply in the applicant 's case and continued :

“ ... it is lamentable that the prosecution have been shown to be wanting as far as the custody time limits were concerned and indeed had it also been shown that they were deliberately defalcating [ sic ] on their duty and relying on LAW as a stop gap , believing that they could still persuade the Judge to keep [ the applicant ] in custody come what may , that might in itself and in certain circumstances amount to exceptional circumstances for reconsidering his bail position .

But I am not satisfied from the chronology and the history of this trial that that is at all the case . I am satisfied however that no exceptional circumstances did arise at the time that that application was made ; that the regulations on custody time limits do not out - weigh the serious considerations of LAW and that I consider that it is a completely separate consideration and that I have separate jurisdiction to deal with it and so notwithstanding that the custody time limits did expire and that he might have been entitled to his release in any other case , that is not the case here and so he must , unless I am persuaded otherwise on a straightforward application regarding LAW , then he must find himself bound by LAW . ”

Judge PERSON recalled that he had recently been persuaded to grant a “ very long adjournment ” to DATE , at the request of the applicant . He indicated that he was of the view that defendants should not be detained for excessively long periods of time before their trials took place , but noted :

“ On the other hand , everything that was done by me on his behalf was for the defendant 's assistance because it was explained that he yet needed to get his independent DNA ; that there were papers missing that have not been properly served upon his defence team and thirdly , since counsel have built up a rapport with the defendant and counsel who have been briefed fairly late in this matter ... had herself commitments that precluded her from safely being able to undertake this work until DATE . ”

He added :

“ If your client , by my ruling on the bail matter and LAW , feels aggrieved then I would take up [ counsel for the prosecution 's ] suggestion and bring the case forward come what may ... ”

He continued :

“ ... CARDINAL things strike me of interest . Bearing in mind the sad chronology I also note that the defendant at the outset had suggested that this was a fabricated tissue of lies by the complainant for motives that he would explain to the jury in due course .

A lot of the disclosure arose because of that and he was offered the opportunity to have his own independent DNA as far back as DATE , an offer that he never took up ... he then spoke in open court ... of automatism , which again left CARDINAL ... curious as to know whether there was a need for DNA and whether he was denying intercourse took place , which of course to an alleged victim of rape is an important issue , which of course she is entitled to be aware of in order that she does not have to go through the ordeal of being accused of being sexually promiscuous or a liar and such things , and we still do not know the answer to that .

So what is going on ? You have come up with another DNA application . ”

Counsel for the applicant responded that she did not have full instructions and could therefore not speak on behalf of the applicant . The judge again reiterated that the trial date for the applicant might need to be reconsidered , a matter on which the applicant 's counsel undertook to seek instructions . The judge expressly pointed out that the effect of his ruling on LAW was that , if the applicant persisted with his request for a DATE trial , he would have to remain in custody for DATE .

The applicant 's counsel appeared before the judge DATE to confirm that the applicant was content that his trial be held on DATE , notwithstanding the section CARDINAL ruling .

On DATE , the applicant issued a claim for judicial review of the court 's decision of DATE to refuse him bail , arguing that his continued detention following the expiry of the custody time limits was in breach of LAW . The matter was considered on the papers on DATE . It was referred for an oral hearing and permission was granted on DATE . On DATE , solicitors acting for the applicant indicated that he would also apply for a writ of habeas corpus contending that since the expiration of the custody time limit on DATE his custody had been illegal .

On DATE , the applicant 's applications for habeas corpus and judicial review of the decision refusing bail were rejected by ORG . In dismissing the argument of the defence that the amendments to section CARDINAL to allow the grant of bail in “ exceptional circumstances ” were insufficient to restore the judicial control required under the Convention , Kennedy LJ held ( at paragraph CARDINAL ) that :

“ ... there is nothing offensive or contrary to Convention law about ORG reminding the courts of the risks normally attendant upon the grant of bail to those to whom LAW applies . A reminder can properly be given by creating a statutory presumption against the grant of bail , but if judicial control is to be effective courts must be left free to examine all the relevant circumstances and , in an appropriate case , to override the presumption . ”

PERSON considered the Convention authorities and accepted ( at paragraph DATE ) that section CARDINAL would not be compatible with the LAW if “ exceptional circumstances ” were too narrowly construed or if the court set too high a threshold at which it would be prepared to conclude that “ exceptional circumstances ” existed . In considering the application of LAW in practice , PERSON explained that :

“ [ LAW ] establishes a norm . The norm is that those to whom it applies if granted bail are so likely to fail to surrender to custody , or offend , or interfere with witnesses or otherwise obstruct the course of justice that bail should not be granted . If in fact , taking into account all the circumstances relating to a particular alleged offence and offender he does not create an unacceptable risk of that kind he is an exception to the norm , and in accordance with his individual right to liberty he should be granted bail . ”

As regards the expiration of the custody time limit , PERSON considered that the custody time limits set out in national law and the “ reasonable time ” requirement under LAW were not one and the same . Accordingly , in assessing whether the prosecution had acted with “ special diligence ” as required by the LAW , the finding of the lower court that it was not satisfied that the prosecution had acted with all due diligence as required by section GPE ) of the CARDINAL Act ( see paragraph CARDINAL below ) was not decisive . Although PERSON accepted that in a case where the prosecution had not demonstrated all due diligence , a court may well conclude that it had not displayed the necessary “ special diligence ” required under LAW , he considered that this was not the case here .

Finally , in respect of the applicant 's argument under LAW that section CARDINAL operated in a discriminatory manner , PERSON considered that the applicant was not in a situation analogous to a person charged with a serious offence because he also had a previous conviction for a serious offence which was relevant to the risk attendant on a grant of bail . He further found that the distinction made was justified , was based on relevant factors , pursued a legitimate objective and was proportionate .

In conclusion , he stressed the importance of setting out reasons for refusing bail in order to show that careful and appropriate consideration had been given to the question whether exceptional circumstances exist .

Hooper J agreed with ORG in all respects , save that unlike PERSON he considered that section CARDINAL did impose the burden on the defendant to show “ exceptional circumstances ” which , in light of Convention case - law , was inconsistent with LAW . Accordingly , he considered that LAW should be read down in accordance with the obligation in CARDINAL of LAW DATE to impose merely an evidential burden on the applicant to point to or produce material which supports the existence of “ exceptional circumstances ” , thereby ensuring compliance with the demands of LAW .

The applicant appealed to ORG , arguing that once the custody time limit had expired there was , by virtue of the expiry of the time limit itself , a breach of LAW by his continued detention under LAW ; and , in the alternative , that the effect of LAW was to place a burden on the applicant to establish exceptional circumstances required for the grant of bail , which was a breach of the applicant 's Convention rights .

In the meantime , the applicant 's trial commenced on DATE . However , on DATE , the prosecution was permanently stayed as an abuse of process , for reasons which are unclear , and the applicant was released from custody .

ORG handed down its judgment in the judicial review and habeas corpus proceedings on DATE . Delivering the leading judgment , Lord PERSON of ORG - under - Heywood considered that an approach under LAW which required the applicant to provide good and sufficient reason for bail would be “ irreconcilable with the GPE case law ” ( at paragraph CARDINAL ) . However , as regards the operation of section CARDINAL in practice , he continued ( at paragraphs CARDINAL ) :

“ Importantly , however , both members of the [ divisional ] court decided that section GPE ) ( subject only to its effect in cases where the custody time limit has expired , the important second issue yet to be addressed ) has no substantive effect upon the way in which bail applications by LAW defendants would in any event fall to be determined under LAW . It serves merely to ' remind ' the courts of the risks normally posed by those to whom LAW applies and ' will merely assist the court to adopt a proper approach ' in relation to bail in their cases . In my judgment they were right in that conclusion and it seems to me unsurprising that the NORP , placed in a similar position by the PERSON judgment , decided against introducing an ' exceptional circumstances ' test , believing that it would ' add nothing to a clear common law position in GPE ' ...

Whether or not , strictly speaking , section CARDINAL needs to be read down to achieve the agreed result is a question of little moment . I myself , however , have a mild preference for ORG approach . Like him I read the section as placing a burden on the section CARDINAL defendant . He has to rebut a presumption and if he fails to do so is to be denied bail . True it is , as [ counsel for the defendant ] himself accepted , that in the vast majority of cases the court will reach a clear view CARDINAL way or the other whether the conditions for withholding bail specified by Schedule CARDINAL to LAW are satisfied . But just occasionally the court will be left unsure as to whether the defendant should be released on bail — the only situation in which the burden of proof assumes any relevance — and in my judgment bail would then have to be granted . That must be the default position . LAW should in my judgment be read down to make that plain . ”

As to the lawfulness of the applicant 's continued detention after the expiry of the custody time limit , Lord PERSON reviewed the facts of the case , noting that the applicant had a previous conviction for rape ; indeed , he had CARDINAL previous convictions for a wide variety of offences . He also observed that the applicant had dispensed with his lawyers and had them reinstated on CARDINAL occasions , CARDINAL of which had caused delay . A further DATE delay was caused by the applicant 's decision to reject the offer of a DATE trial date in favour of a date in DATE , to suit his counsel 's convenience . Lord PERSON noted that it was unclear , in the absence of a transcript of the court 's decision of DATE or any further information on the subject , why the lower court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure . However , he concluded that even where there was a lack of due diligence under domestic law , this was not in itself sufficient to establish the lack of “ special diligence ” required for a breach of LAW . Lord PERSON concluded ( at paragraph CARDINAL ) that :

“ By the very nature of things , ORG will be looking at the case in a different way from the domestic court , in particular from a longer and wider perspective . GPE will have the whole picture before it and will take an overall view as to whether the reasonable time guarantee has been exceeded . PERSON illustrates the point well : the ultimate question addressed by the court was whether ' the total length of the detention pending trial appear[ed ] excessive ' . So too in PERSON : the court took account of the trial court 's post - delay offer to increase the rate of the hearings ( akin perhaps to the offer of a DATE trial date in the present case , similarly declined ) . The domestic court , by contrast , is inevitably having to decide a much narrower question and within a shorter time - frame . And it is doing so within the strict confines of section GPE ) which , despite the marked similarity between its language and that used in GPE , in fact imposes a more rigid formula for the extension of custody time limits than GPE does with regard to the reasonable time guarantee under article CARDINAL(CARDINAL ) . For my part I would not expect there to be many cases where , as here , bail is refused notwithstanding the court 's refusal to extend the custody time limit . But I conclude that there is no necessary inconsistency between the CARDINAL and that LAW is not necessarily breached . Nor , in my judgment , is there any other reason for thinking that this appellant was wrongly refused bail : on the contrary , the case for his continued detention in custody appears to have been a strong one . ”

ORG found no violation of LAW and unanimously rejected the applicant 's appeal .

Section CARDINAL of LAW DATE provides that where an adult appears before a magistrates ' court charged with an offence triable only on indictment , the court shall send him forthwith to ORG for trial for that offence .

LAW ( “ the LAW ” ) regulates the grant of bail . LAW provides that defendants :

“ shall be granted bail except as provided for in Schedule CARDINAL to this LAW . ”

Schedule CARDINAL of the CARDINAL LAW provides , under paragraph CARDINAL , that :

“ The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant , if released on bail ( whether subject to conditions or not ) would—

( a ) fail to surrender to custody , or

( b ) commit an offence while on bail , or

( c ) interfere with witnesses or otherwise obstruct the course of justice , whether in relation to himself or any other person . ”

Paragraph CARDINAL of the Schedule provides that :

“ In taking the decisions required by paragraph CARDINAL ... the court shall have regard to such of the following considerations as appear to it to be relevant , that is to say—

( a ) the nature and seriousness of the offence or default ( and the probable method of dealing with the defendant for it ) ,

( b ) the character , antecedents , associations and community ties of the defendant ,

( c ) the defendant 's record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings ,

( d ) ... the strength of the evidence of his having committed the offence or having defaulted ,

as well as to any others which appear to be relevant . ”

Section CARDINAL(CARDINAL ) of the DATE Act provides that the right to bail under section CARDINAL is subject to section CARDINAL of ORG and LAW DATE ( “ the DATE LAW ) .

The DATE Act makes specific provision for bail in a case where a suspect is charged with a serious offence and has previously been convicted and imprisoned for a serious offence . LAW provides :

“ ( CARDINAL ) A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or , as the case may be , the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it .

( CARDINAL ) This section applies , subject to subsection ( CARDINAL ) below , to the following offences , that is to say–

( a ) murder ;

( b ) attempted murder ;

( c ) manslaughter ;

( d ) rape under the law of GPE or GPE ;

( e ) an offence under LAW DATE ( rape ) ;

( f ) an offence under LAW DATE ( rape ) ;

( g ) an offence under LAW ( assault by penetration ) ;

( CARDINAL ) This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of GPE of any such offence or of culpable homicide and , in the case of a previous conviction of manslaughter or of culpable homicide , if he was then sentenced to imprisonment ... ”

The Prosecution of Offences Act DATE allows the Secretary of ORG , under section CARDINAL(CARDINAL ) , to make regulations setting custody time limits . LAW also provides the appropriate court with the power to extend the time limit in a given case :

“ ( CARDINAL ) The appropriate court may , at any time before the expiry of a time limit imposed by the regulations , extend , or further extend , that limit ; but the court shall not do so unless it is satisfied–

( a ) that the need for the extension is due to–

( i ) the illness or absence of the accused , a necessary witness , a judge or a magistrate ;

( ii ) a postponement which is occasioned by the ordering by the court of separate trials in the case of CARDINAL or more accused or CARDINAL or more offences ; or

( iii ) some other good and sufficient cause ; and

( b ) that the prosecution has acted with all due diligence and expedition .

The Prosecution of Offences ( Custody Time Limits ) Regulations DATE as amended set out the custody time limits applicable . Regulation CARDINAL(CARDINALB ) provides that where an accused is sent for trial under LAW , the maximum period of custody between the accused being sent to ORG for an offence and the start of the trial shall be DATE . Under section CARDINAL(CARDINALA ) of the DATE Act , the start of a trial on indictment shall be taken to occur when a jury is sworn in .

Under LAW of LAW , upon the expiry of the custody time limit , an accused in custody must be granted bail , subject to section CARDINAL of the CARDINAL Act :

“ ( CARDINAL ) ORG , on being notified that an accused who is in custody pending trial there has the benefit of a custody time limit under LAW above and that the time limit is about to expire , shall , subject to section CARDINAL of ORG and LAW DATE ( exclusion of bail in cases of homicide and rape ) , grant him bail in accordance with LAW , as from the expiry of the time limit , subject to a duty to appear before ORG for trial . ”

In R ( ORG and Others ) v ORG [ DATE ] EWHC Admin CARDINAL , ORG considered the scope for extending custody time limits . Lord PERSON noted :

“ CARDINAL . ... The court made plain in ex parte PERSON , as indeed is plain on the face of the statute , that when seeking an extension or a further extension of a custody time limit the ORG must show that there is good and sufficient [ cause ] for making the extension and that it has acted with all due expedition . What , however , was not made plain in ex parte PERSON ( because the question did not arise ) is that these CARDINAL provisions are in my judgment linked . It is not in doubt that the ORG must show proper grounds for keeping a defendant in prison awaiting trial for a period longer than the statutory maximum . But the ORG must also show that such an extension is not sought because it has shown insufficient vigour in preparing the case for trial . Put crudely , the prosecution can not prepare for trial in a dilatory and negligent manner and then come to the court to seek an extension of the custody time limit because the prosecution is not ready for trial . Nor , if the effect of its dilatoriness is to put the defence in a position where the defence is not ready for the trial can the ORG seek an extension and show that it has acted with all due expedition . It is in the ordinary way the business of the prosecution to be ready . If therefore the ORG is seeking an extension of the time limit it must show that the need for the extension does not arise from lack of due expedition or due diligence on its part . It seems clear to me , however , that the requirement of due expedition or due diligence or both is not a disciplinary provision . It is not there to punish prosecutors for administrative lapses ; it is there to protect defendants by ensuring that they are kept in prison awaiting trial no longer than is justifiable . That is why due expedition is called for . The court is not in my view obliged to refuse the extension of a custody time limit because the prosecution is shown to have been guilty of avoidable delay where that delay has had no effect whatever on the ability of the prosecution and the defence to be ready for trial on a predetermined trial date . ”

Section CARDINAL(CARDINAL ) of LAW provides that , so far as it is possible to do so , primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights .


Preliminary objection rejected (non-exhaustion);Not necessary to examine Art. 5;Not necessary to examine Art. 6;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;No violation of Art. 2;No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;No violation of Art. 8;No violation of Art. 13;Costs and expenses partial award - Convention proceedings;Pecuniary damage - reserved;Non-pecuniary damage - reserved;Not necessary to examine Art. 3;Violation of Art. 8

The applicants , Ms Azize Menteş , Ms PERSON and Ms GPE and PERSON are NORP citizens of NORP origin from the village of Sağgöz ( which is the official NORP name ) or PERSON ( which is the older , NORP or NORP name ) in the Genç district in the province of ORG in south - east GPE . At present they live in GPE .

NORP Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( Workers’ ORG ) . This confrontation has so far , according to the ORG , claimed the lives of CARDINAL civilians and CARDINAL members of the security forces .

At the time of the ORG ’s consideration of the case , CARDINAL of the CARDINAL provinces of south - eastern GPE had since DATE been subjected to emergency rule .

Sağgöz is situated in a mountainous area which was subject to significant ORG terrorist activity . Due to the events in the region in DATE and DATE , many of the villages in the district have been evacuated by the villagers and the houses destroyed . By DATE , the village of ORG and its surrounding hamlets were deserted , the villagers having left for ORG , PERSON and other places , and the houses ruined .

The NORP village was evacuated as a whole by the villagers in or DATE , following pressure from the ORG in the area . Some of the villagers in the outer hamlets stayed beyond DATE but had all left by DATE DATE due to ORG presence . Shortly after the villagers began leaving , the ORG moved into the empty houses . Clashes with security forces ensued , CARDINAL in DATE or DATE , another in DATE . It is probable that houses in the village were burned or destroyed in the course of these clashes , including possibly through bombing from helicopters . However , whether the ORG or the security forces set fire to the houses intentionally or accidentally is not established .

The facts in this case are disputed .

According to the applicants their houses were burned in the course of an operation by the security forces in DATE . Their version of the events could be summarised as follows .

The applicants all lived in hamlets of the village of ORG . Azize ORG , PERSON and PERSON lived in the lower neighbourhood in NORP village and PERSON lived in GPE , a separate hamlet of the village .

On DATE , an attack was carried out by the ORG on GPE gendarme station . On TIME , the security forces stopped a minibus belonging to PERSON , which regularly took people between PERSON and the ORG area , as it approached the gendarme station . The security forces set fire to the minibus . They subsequently carried out a followup operation in pursuit of the ORG who had attacked the station . On DATE , security forces came to ORG ) village and burned some of the houses .

On TIME DATE , security forces arrived in the area surrounding GPE by helicopter . On TIME DATE , gendarmes entered the village and gathered people from the upper neighbourhood in the area in front of the school . Gendarmes in the lower area carried out a search and then proceeded to burn houses in the lower neighbourhood of NORP village . Villagers pleaded with the gendarmes not to burn their houses but were told to remain quiet or they would be thrown on the flames . When asked why they were burning the houses , the gendarmes told the villagers that it was a punishment for helping the ORG .

The house where PERSON lived was burned completely , along with her furniture , firewood , barn and a shed with DATE feed for the animals . PERSON house was burned and the gendarmes threatened to throw her into the burning house if she tried to retrieve some of her children ’s clothes . PERSON house was burned , after she and her children had been thrown out and she had been kicked , cursed at and a gun put to her face . In all , CARDINAL houses in the lower neighbourhood were destroyed . The soldiers told the applicants that they were burning their houses because they helped the terrorists .

The intention of the gendarmes in NORP village appeared to have been to burn the whole village in revenge for the attack by the ORG on the gendarme station . However , the arrival of a commanding officer at TIME , a colonel who ordered the burning to stop , saved the upper village .

The house of the applicant PERSON in the hamlet of GPE was burned by the security forces in a separate incident .

The applicants were forced to leave ORG .

Later , in DATE , the remaining population of the village left and in DATE the remainder of the village was burned down . By DATE in DATE , the entire area seems to have been burned , devastated and depopulated .

The burning of the applicants’ homes is consistent with a practice of burning houses as part of the policy by the security forces to combat the ORG , especially where the authorities view villages as giving support to the ORG .

Since DATE the ORG has sought to use the applicants’ village as a place of shelter and supply base . The villagers were forced by virtue of the incursions of the terrorists to leave the village . The terrorists used the houses from time to time and when the security forces took action against them , the terrorists fled setting the houses on fire .

There were no operations by the security forces in the area on DATE . In fact , the applicants had been absent from the village for DATE by that point . They were the close relatives of CARDINAL named individuals who are suspected of being members of the mountains branch of the ORG . They also had relatives who had been detained on charges alleging , inter alia , that they have aided and abetted the ORG terrorist organisation . Other members of the applicants’ families were working for the ORG in rural areas . It was not unlikely that the applicants had been subjected to pressure by their relatives who aid and abet and work for the ORG .

The Commission conducted an investigation , with the assistance of the parties , and accepted documentary evidence , including written statements , and oral evidence of CARDINAL witnesses taken by CARDINAL delegates of the Commission in GPE from DATE . This included CARDINAL local public prosecutors and CARDINAL villagers whom they had investigated in connection with the ORG allegations ( see paragraphs CARDINAL–CARDINAL below ) ; another villager ; the first CARDINAL applicants ; and the commander of the gendarmerie of the ORG province who had taken up his duties after the alleged events .

In relation to the oral evidence , the ORG had been aware of the difficulties attached to assessing evidence obtained orally through interpreters ( in some cases via NORP and NORP into LANGUAGE ) . It therefore paid careful attention to the meaning and significance which should be attributed to the statements of witnesses appearing before its delegates . In respect of both written and oral evidence , the Commission was aware that the cultural context of the applicants and the witnesses made it inevitable that dates and other details lacked precision ( in particular , numerical matters ) and did not consider that this by itself impinged on the credibility of the testimony .

It assessed the evidence and its findings could be summarised as follows .

CARDINAL investigations into the events at ORG had been carried out by the CARDINAL public prosecutors at PERSON , the first by Mr PERSON and the second by PERSON PERSON , both of which had ended in decisions , on DATE and CARDINAL DATE respectively , not to prosecute .

The first investigation had been in response to a letter from ORG , apparently motivated by information received when the ORG complaints had been communicated by the ORG to ORG on DATE ( date of letter ) . In reconstructing the investigation , the ORG ’s delegates had received little assistance from the public prosecutor who had also been handicapped in not having a copy of his file for reference .

His decision not to prosecute , which concluded that no incident had occurred on DATE , must have been taken DATE from his receipt of the first notification of the complaints . It seemed likely that the applicants’ names were not known to him at that stage . This decision had been taken solely on the basis of brief statements from CARDINAL villagers , from different hamlets , distinct from ORG , which appeared mainly directed at refuting specific allegations : the bombing by helicopters in DATE ( not in fact alleged in the ORG original application ) and the tying up or beating of the old men . All had referred to terrorist clashes with security forces leading to the ORG departure from ORG ; CARDINAL had attributed the burning of houses to the ORG .

According to PERSON , the witnesses had been selected at random , but PERSON , muhtar of PERSON , had said that he had been invited to make a statement and to bring other “ reliable witnesses ” from the village .

Also the second investigation had been in response to another letter from ORG . PERSON had based himself on the investigation of his colleague . He referred to the previous CARDINAL statements and summoned the CARDINAL villagers concerned . His decision not to prosecute concluded that the ORG burned the houses in the village , that the alleged incident had not taken place in DATE and that the applicants were close relatives of members of the ORG .

CARDINAL

The Commission observed that there had been no detailed investigation at the domestic level of the events in NORP village and its surrounding hamlets over DATE . It had accordingly based its findings on the evidence given orally before its delegates or submitted in writing in the course of the proceedings .

It further noted that the Government , despite repeated requests by the ORG ’s ORG and the ORG ’s delegates , had failed to provide documentary materials , in particular the contents of the investigation files of the CARDINAL public prosecutors who carried out investigations into the alleged incident in GPE . At the taking of evidence in DATE , the ORG had failed to identify and serve with the ORG ’s summons the gendarme commander for the area on DATE , his successor , PERSON , appearing instead . No explanation had been forthcoming for this . In this respect , the Commission had had regard to the principle that , in assessing the evidence in a case the conduct of the parties may be taken into account ( see the GPE v. the GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL in fine ) .

The Commission was not persuaded by the ORG ’s suggestion that the ORG complaints were fabrications resulting from pressure exerted by their relatives in the ORG . ORG found it regrettable that the response from the domestic authorities and the ORG ’s allegations made in this case had given the appearance of being directed more at emphasising the ORG links with the applicants’ families than at dealing with the substance of the applicants’ grievances .

In establishing the facts , the Commission had regard to the inconsistencies and contradictions in the evidence .

As to the evidence given by the CARDINAL villagers to the public prosecutors , the ORG observed that its tenor had been dogmatic , including blanket denials of any alleged cruelty or burning ever having been committed by NORP soldiers . It had also given some support to the ORG allegation that there was a certain animosity between the other villagers and themselves , which might have encouraged them to give statements contradicting the ORG account . Moreover , the ORG noted that the village muhtar had been instructed by the prosecutor to bring some “ reliable witnesses ” . In view of the manner of selection of witnesses by the prosecutor , the ORG found it unsafe to rely on their written statements in so far as they were unsupported by other evidence .

The ORG further noted that there were material differences between the statements of the first CARDINAL applicants , Ms Azize Menteş , Ms PERSON and Ms GPE , as recorded by ORG and their oral statements to the delegates . However , the ORG found that the CARDINAL applicants’ oral evidence , which was supported in material points by a villager PERSON was on the whole consistent and credible . The fact that they had gone to ORG in ORG to complain in DATE was a strong factor weighing heavily in favour of the credibility of their central complaint . On the other hand , the ORG considered that it could not rely on the written statements since it had serious doubts as to the manner in which the association took statements and the extent to which care had been taken to record accurately each individual complaint without contamination from information gathered elsewhere .

The Commission was satisfied that PERSON and PERSON were still living in their houses in the lower neighbourhood of the village of PERSON in DATE and were present on DATE . However , as appeared to be a not uncommon pattern of life in this region , these CARDINAL applicants left the village in the DATE for ORG and returned in DATE to tend to their gardens and crops . As regards PERSON , while she probably did not own a house herself , she lived in the house of her fatherin - law when she returned in DATE to the village . The ORG found that on the balance of the evidence , she was also living in the lower neighbourhood on DATE .

As regards the events in ORG accepted in its principal elements the oral evidence of PERSON , PERSON and PERSON GPE . Considering that their oral evidence was more consistent , more credible and more convincing than the evidence given by the CARDINAL villagers , it found as follows .

On TIME DATE , a large force of gendarmes had arrived in the vicinity of NORP village . On DATE , the gendarmes had entered both upper and lower neighbourhoods and carried out searches . At some point , the villagers in the upper neighbourhood ( with the exception of the younger men who were out working ) had been gathered in front of the school , probably to be questioned about the ORG in the area . In the lower neighbourhood , the women , including the applicants , had been required by the soldiers to leave their houses and their houses had been set on fire , with all their belongings and property inside , including the clothing and footwear of children . The burning had been restricted to the lower neighbourhood . Around TIME , a helicopter had arrived in the village in the upper neighbourhood , probably bringing a senior officer , a colonel , and his arrival had been associated by the applicants and some of the other villagers with an order to cease the burning . The gendarmes left DATE . Shortly afterwards , the CARDINAL applicants , with their children or other members of their family , had to walk for TIME to the Lice - Diyarbakır road from where they were given rides in vehicles into ORG .

As to the alleged operation by security forces in which the house of the fourth applicant , PERSON , was burned along with others in the hamlet of GPE , no facts have been established in relation to this applicant ’s complaints . Due to ill - health she did not appear at the hearings before ORG delegates , unlike the first CARDINAL applicants .

Article CARDINAL of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review ...

ORG The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”

LAW makes it a criminal offence

– to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) ;

– to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ;

– to issue threats ( Article CARDINAL ) ;

– to make an unlawful search of an individual ’s home ( Articles CARDINAL and CARDINAL ) ;

– to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ;

– to commit arson unintentionally by carelessness , negligence or inexperience ( Article ORG ) ; or

– to damage another ’s property intentionally ( Articles CARDINAL et seq . ) .

For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of the Code of Criminal Procedure , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to Article CARDINAL of LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of LAW . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

Damage caused by terrorist violence may be compensated out of ORG .

Articles CARDINAL to CARDINAL of the LAW provide for fundamental limitations on constitutional safeguards .

Provisional Article CARDINAL of the LAW provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted DATE and DATE . That includes Law no . CARDINAL on ORG DATE , under which decrees have been issued which are immune from judicial challenge .

Extensive powers have been granted to the Regional Governor of ORG by such decrees , especially Decree no . CARDINAL , as amended by Decrees nos . CARDINAL and CARDINAL , and Decree no . CARDINAL .

DATE . Decree no . CARDINAL modifies the application of PERSON no . ORG , the Anti - Terror Law ( DATE ) , in those areas which are subject to the state of emergency , with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils . According to ORG , these councils are made up of civil servants and have been criticised for their lack of legal knowledge , as well as for being easily influenced by the Regional Governor or ORG who also head the security forces .

Article CARDINAL of Decree no . CARDINAL of CARDINAL DATE provides as follows :

“ No criminal , financial or legal responsibility may be claimed against ORG or a NORP Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”

According to the submissions of the applicants , this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages , to impose residence restrictions and to enforce the transfer of people to other areas . Damage caused in the context of the fight against terrorism would be “ with justification ” and therefore immune from suit .


The applicants , Mr PERSON and Mr PERSON , are NORP nationals , born in DATE and DATE , respectively . Both are currently in prison . They are represented before the ORG by PERSON , a lawyer practising in GPE .

PERSON was convicted of attempted murder and sentenced to a discretionary life sentence on DATE . His tariff was fixed at DATE by the sentencing judge on DATE . He was refused leave to appeal against conviction on DATE by a single judge of ORG .

PERSON was convicted of manslaughter and on DATE sentenced to a discretionary life sentence . His tariff was fixed at DATE and , on DATE , after he was granted leave to appeal against sentence , it was reduced to DATE by ORG .

In response to a query by PERSON representatives as to the means by which he could apply to have his tariff reduced , ORG responded by letter dated DATE confirming that the Secretary of ORG could not interfere with a tariff fixed by a court .

The ORG refers to the description of the domestic law and practice in its judgment in the case of GPE v. GPE ( [ ORG ] , no . CARDINAL , judgment of CARDINAL DATE , ORG CARDINAL-IV ) .

LANGUAGE law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of CARDINAL known as detention during Her Majesty ’s Pleasure ( section CARDINAL(CARDINAL ) of ORG ) ; in respect of offenders between the age of DATE , custody for life ( section CARDINAL(CARDINAL ) of LAW DATE ) , and in respect of offenders aged CARDINAL and over , life imprisonment ( section CARDINAL(CARDINAL ) of the Murder ( Abolition of Death Penalty ) Act DATE ) .

Mandatory life sentences are fixed by law , in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences ( e.g. manslaughter , rape or robbery ) . The principles underlying the imposition of a discretionary life sentence are :

( i ) that the offence is grave , and

( ii ) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when the danger will subside .

Discretionary life sentences are indeterminate in order that “ the prisoner ’s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large ” ( R v. PERSON [ DATE ] CARDINAL Cr . App . Rep . CARDINAL , p. CARDINAL ) .

Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her ORG have a “ tariff ” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in DATE , in particular , following the coming into force on DATE of LAW DATE .

Under the relevant provisions of LAW DATE , the regime applying to the release of discretionary and mandatory life prisoners was the same . Section CARDINAL(CARDINAL ) of the CARDINAL Act provided inter alia that :

“ The Secretary of ORG may , if recommended to do so by ORG , release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under LAW DATE ( young offenders convicted of grave crimes ) , but shall not do so in the case of a person sentenced to imprisonment for life or custody for life or to detention during Her Majesty ’s pleasure or for life except after consultation with the Lord Chief Justice of GPE and the trial judge if available . ”

For both categories of prisoner , the Secretary of ORG fixed the tariff element of the sentence , after consulting the judiciary .

The DATE Act instituted changes to the regime applicable to the release of discretionary life prisoners following the decision of ORG in the case of GPE , PERSON and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) .

Pursuant to section CARDINAL of the CARDINAL Act , the sentencing court was to specify the penal or tariff element of the sentence . After the tariff expired , the prisoner could require the Secretary of ORG to refer his case to ORG which had the power to order his release if it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined . Pursuant to ORG DATE which came into force on DATE , a prisoner was entitled to an oral hearing , to disclosure of all evidence before ORG and to legal representation . He was also entitled to call witnesses on his behalf and to cross - examine those who have written reports about him .

The regime applicable to mandatory life prisoners and prisoners detained during Her Majesty ’s Pleasure was , however , preserved within LAW . LAW of the DATE Act provided insofar as relevant :

“ ( CARDINAL ) NORP If recommended to do so by ORG , the Secretary of ORG may , after consultation with the Lord Chief Justice together with the trial judge if available , release on licence a life prisoner who is not a discretionary life prisoner . ”

On DATE the Secretary of ORG made the following parliamentary statement ( ORG ) cols . CARDINAL - CARDINAL ) :

“ So far as the procedures for setting and reviewing tariffs of [ mandatory life prisoners ] are concerned , I am continuing the practice of my predecessor , as described in his answers of DATE , ... In particular , before setting the tariff , I am continuing to take the advice of the trial judge and the Lord Chief Justice , informing the prisoner of the substance of that advice and inviting representations about it , and giving reasons for any departure on my part from the judicial review .

With regard to the discretion to alter the tariff , I reiterate that the view which I take ... at the beginning of a mandatory life sentence of the period necessary to satisfy the requirements of retribution and deterrence , is an initial view of the minimum period necessary to satisfy those requirements . It therefore remains possible for me , or a future Secretary of ORG , exceptionally to revise that view of the minimum period , either by reducing it or by increasing it where I , or a successor in my office , conclude that , putting aside questions of risk , the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined .

The procedure for considering any increase of a tariff once set will include the opportunity for the prisoner to make representations after being informed that the Secretary of ORG is minded to increase the tariff , and to be given reasons for any subsequent decision to increase it .

So far as the potential for a reduction in tariff is concerned , I shall be open to the possibility that , in exceptional circumstances , including for example , exceptional progress by the prisoner whilst in custody , a review and reduction of the tariff may be appropriate . I shall have this possibility in mind when reviewing at the DATE point the cases of prisoners given a whole life tariff and in that respect will consider issues beyond the sole criteria of retribution and deterrence ... Prisoners will continue to be given the opportunity to make representations and to have access to the material before me .

I intend to apply these policies in respect of all tariffs for adult murderers , whether or not they were originally set before DATE and whether or not they were originally fixed by me personally , or a Minister acting on my behalf , or by or on behalf of a previous holder of my office . ”

“ Those convicted of murder [ mandatory prisoners ] are now fully informed about the tariff - setting process and may make representations at any time about the length of their tariff . In addition , they may at any time make representations for their tariff to be reduced to take account of exceptional circumstances , including exceptional progress in prison . ... ”