Remainder inadmissible;Violation of P1-1

Anatoly Kovler;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

In DATE the applicant became the holder of a specially protected tenancy ( stanarsko pravo ) of a flat in GPE . He lived in the flat with his family until DATE when GPE was occupied . He then fled the occupying forces and went to live in GPE .

The applicant found a job in ORG and , as an internally displaced person , on DATE he was awarded a flat there on a temporary basis . In DATE the competent authorities terminated his status as an internally displaced person . Following a civil action by PERSON , the applicant was forced to leave the flat in GPE on DATE .

The applicant claimed DATE following the military operation “ Storm ” by which GPE regained control of almost its entire territory in DATE on DATE he had visited FAC , where he had found the flat in respect of which he had the specially protected tenancy uninhabitable and in a very bad state of repair . This had been confirmed on DATE by the findings of ORG . He further submitted that he had immediately commenced rebuilding work on the flat with a view to moving into it .

NORP However , on DATE , while the applicant was working in PERSON , the local authorities , accompanied by the police , entered into the flat , made a list of personal belongings , changed the locks and gave the keys of the flat to a certain PERSON , a local policeman . DATE the Commission for Temporary Takeover and Use of Certain Property of GPE ( PERSON za privremeno preuzimanje i korištenje određene imovine PERSON – “ the ORG ” ) issued a decision letting the flat to GPE and his family on a temporary basis .

On DATE the applicant and his wife made a request for the purchase of the flat to GPE . In doing so they relied on ORG , which entitled holders of specially protected tenancies of flats in social or state ownership to purchase their flats under favourable conditions ( see paragraph CARDINAL below ) . They received no reply .

On DATE ORG ( ORG razvitka i obnove ) adopted a decision letting the flat to GPE and his family for their use .

On DATE GPE issued a decision allowing the applicant to live in the flat . The applicant has been living in the flat ever since .

Meanwhile , on CARDINAL DATE , the applicant and his wife brought a civil action against the ORG in ORG ( PERSON ) with a view to obtaining a judgment which would allow them to purchase the flat in accordance with ORG . On DATE the court dismissed their action . It found that the applicant 's flat was owned by the ORG and not GPE and that therefore the plaintiffs should have directed their request for its purchase to the ORG and not to the GPE . Following an appeal by the applicant and his wife , on DATE ORG ( PERSON ORG ) quashed the first - instance judgment and remitted the case . It found , inter alia , that the fact that the plaintiffs had made their request for the purchase of the flat to the GPE and not the ORG should not have been held against them .

In the resumed proceedings , on DATE ORG again dismissed the plaintiffs ' action . The court first determined , as a preliminary issue , whether the plaintiffs had retained their specially protected tenancy of the flat in GPE , the existence of that tenancy being a statutory precondition for buying the flat under LAW . In this respect the court found that : ( a ) the plaintiffs had left the flat in DATE and ( b ) in the period DATE , when Vojnić was liberated , and DATE , when the flat was awarded to GPE , they had been living in PERSON and had only occasionally visited and used the flat in GPE . That being so , the court concluded that since they had not used their flat permanently for living purposes , the plaintiffs ' specially protected tenancy had been terminated . Consequently , they were not entitled to purchase the flat in question .

On DATE ORG dismissed the plaintiffs ' appeal and upheld the first - instance judgment , which thereby acquired the force of res judicata . Relying on the finding of the first - instance court that the plaintiffs had left the flat in DATE and had not used it in the period DATE and DATE , the second - instance court expressly referred to section CARDINAL of the Act on the Lease of Flats on GPE ( see paragraph CARDINAL below ) in holding that the plaintiffs ' specially protected tenancy had been terminated ex lege because after the LAW 's entry into force they had not used their flat for a period DATE . As a result , they had no right to purchase it .

The applicant then lodged a constitutional complaint alleging , inter alia , infringements of his constitutional rights to equality before the law , to property and to a fair hearing .

On DATE ORG ( Ustavni sud PERSON ) dismissed the constitutional complaint and served its decision on the applicant on DATE . The relevant part of ORG decision reads as follows :

“ The [ ordinary ] courts established that the flat at issue in FAC had on DATE been awarded to [ GPE ] for temporary use , and that the plaintiffs had in the period DATE and DATE only occasionally visited the flat , which could not be considered use of the flat . The first - instance court therefore dismissed the plaintiff 's action in accordance with section CARDINAL of the Act on the Lease of Flats on GPE , according to which the specially protected tenancy of flats located in the previously occupied , now liberated , territory of GPE was to be terminated by the operation of law if the holder of the specially protected tenancy left the flat and did not use it for DATE following the LAW 's entry into force . The court established that the complainant had not used the flat DATE and DATE and that his specially protected tenancy had [ therefore ] been terminated by the operation of law . Given that his specially protected tenancy had been terminated by the operation of law after DATE , the complainant could no longer be considered the holder of a specially protected tenancy and therefore was not entitled to make a request for the purchase of the flat .

ORG found that the first - instance judgment was correct and had been rendered on the basis of correctly and completely established facts and the correct application of the substantive law .

Assessing the arguments raised in the constitutional complaint in the light of LAW paragraph CARDINAL of the LAW , ORG has found that the complainant 's constitutional right to equality before the law was not breached by the contested judgments .

The legal views expressed in the contested judgments are based on the correct application of the relevant substantive law and on the constitutionally acceptable interpretation of that law . The Constitutional Court finds that the [ ordinary ] courts , relying on the facts established in the proceedings , gave reasons for their views expressed in the contested decisions , which undoubtedly do not result from the arbitrary interpretation or application of the relevant substantive law .

The content of the constitutional right to a fair hearing guaranteed by LAW paragraph CARDINAL of the LAW is limited to procedural guarantees of a fair hearing . Therefore , assessing the arguments raised in the constitutional complaint in the light of that constitutional right , as well as other constitutional rights guaranteed by LAW , the ORG examines possible procedural breaches in the proceedings before the courts and , on that basis and looking at the proceedings as a whole , ascertains whether the proceedings were conducted in a manner which secured a fair hearing to the complainant .

Having examined the contested decisions and the first - instance case file , the Constitutional Court finds that the complainant 's constitutional right guaranteed by LAW paragraph CARDINAL of the LAW has not been breached .

As regards the complainant 's argument concerning the breach of the constitutional right of ownership guaranteed by LAW paragraph CARDINAL of the LAW , it has to be noted that ORG , on the basis of LAW , protects the right of ownership at the constitutional level in such a manner that it prevents restriction or taking of that right by the state authorities , unless a restriction or taking is provided for by law .

The Constitutional Court finds that the contested judgments are based on the relevant legislation and are well reasoned , and that the complainant 's right of ownership guaranteed by LAW has not been breached . ”

The relevant provisions of LAW ORG , ORG , ORG . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) and CARDINAL ) read as follows :

“ All shall be equal before the law . ”

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ The right of ownership shall be guaranteed . ”

The Act on the Lease of Flats on the Liberated Territory ( Zakon o davanju u najam stanova na oslobođenom teritoriju , Official Gazette no . CARDINAL ) , which was in force between CARDINAL DATE and CARDINAL DATE provided , in its relevant part , as follows :

Section CARDINAL(CARDINAL )

“ This Act regulates the lease of flats of which the specially protected tenancy ... has been terminated pursuant to the provisions of this LAW , and which are located in the previously occupied , now liberated , territory of GPE . ”

Section CARDINAL(CARDINAL )

“ The specially protected tenancy of the flats referred to in LAW shall be terminated by the operation of law [ i.e. ex lege ] if the holder of the specially protected tenancy leaves the flat and does not use it for a period exceeding DATE following this LAW 's entry into force . ”

Section CARDINAL(CARDINAL ) and ( CARDINAL )

“ ( CARDINAL ) FAC referred to in CARDINAL of this LAW which are in state ownership shall be let by ORG .

( CARDINAL ) Other flats [ i.e. those in social ownership ] shall be let by the [ ORG established on the basis of ORG . ”

Section PERSON ) and ( CARDINAL )

“ ( CARDINAL ) ORG or the [ ORG shall issue a decision ... on the lease of a flat .

( CARDINAL ) Against the ORG 's decision referred to in the preceding paragraph one may lodge an appeal to the [ competent ] Ministry ... within DATE .

( CARDINAL ) The appeal does not suspend the enforcement of the decision . ”

On DATE ORG adopted a decision in case no . ORG ( published in ORG no . CARDINAL of DATE ) where the complainant , the holder of the specially protected tenancy of a flat in GPE , brought an action against the local authorities in order to be allowed to purchase the flat in question . The second - instance court ruled against him , finding that his specially protected tenancy had been terminated ex lege because he had left the flat in DATE when the town had come under the control of the occupying forces , and had returned to it only after the expiry of the time - limit set forth in section CARDINAL(CARDINAL ) of the LAW on the Lease of Flats on the Liberated Territory . It found that he was therefore not entitled to purchase the flat at issue . ORG ruled for the complainant and quashed the contested judgment . In so doing it held as follows :

“ ... [ T]he Act on the Lease of Flats on the Liberated Territory refers to persons who left the previously occupied territory of GPE after the liberation in DATE .

The complainant did not leave ORG after its liberation in DATE but was expelled therefrom in DATE . Therefore , in the view of ORG , the complainant does not belong to the category of persons to which LAW on FAC on the Liberated Territory applies .

The second - instance court erroneously applied to the complainant 's particular legal situation ... the LAW on the Lease of Flats on the Liberated Territory . Consequently , that court wrongly held in the contested judgment that the complainant 's specially protected tenancy of the flat in GPE was terminated by the operation of section CARDINAL(CARDINAL ) of the LAW on the Lease of Flats on the Liberated Territory after the expiry of the DATE time - limit following its entry into force ( that is , on DATE ) .

For these reasons , the complainant 's constitutional right to equality before the law guaranteed by LAW paragraph CARDINAL of the LAW , as well as his constitutional right to a fair hearing guaranteed by LAW paragraph CARDINAL of the LAW , was violated by the contested judgment . ”

On DATE ORG adopted a decision in case no . PERSON ( published in ORG no . CARDINAL of DATE ) where the complainant , the holder of the specially protected tenancy of a flat in ORG , brought an action against the local authorities in order to be allowed to purchase the flat in question . The ordinary courts ruled against her , finding that her specially protected tenancy had been terminated ex lege because she had left the flat and gone to live abroad in DATE when the NORP authorities regained control of ORG following the military operation “ Storm ” , and had returned to GPE only in DATE , that is , after the expiry of the time - limit set forth in section CARDINAL(CARDINAL ) of the LAW on the Lease of Flats on the Liberated Territory . It found that she was therefore not entitled to purchase the flat at issue . ORG TIME referred to its interpretation of the LAW on the Lease of Flats on the Liberated Territory provided in decision no . ORG of DATE ( see the preceding paragraph ) , according to which that LAW applied :

“ ... to persons who left the previously occupied territory of GPE after the liberation in DATE . ”

Having established that the complainant had indeed left her flat in ORG in DATE and had returned to GPE only in DATE , ORG dismissed her constitutional complaint .

On CARDINAL DATE ORG adopted a decision in case no . U - III-CARDINAL/CARDINAL ( published in ORG no . CARDINAL of DATE ) where the complainant , the holder of the specially protected tenancy of a flat in PERSON , brought an action against the local authorities in order to be allowed to purchase the flat in question . The ordinary courts ruled against her , finding that her specially protected tenancy had been terminated ex lege because she had left the flat in DATE when PERSON had come under the control of the occupying forces , and had returned to it only in DATE , that is , after the expiry of the time - limit set forth in section CARDINAL(CARDINAL ) of the LAW on the Lease of Flats on the Liberated Territory . They found that she was therefore not entitled to purchase the flat at issue . ORG ruled for the complainant and quashed the contested judgments of the ordinary courts . In so doing it held as follows :

The complainant left the flat in Pakrac in DATE . Therefore , in the view of ORG , the complainant does not belong to the category of persons to which LAW on FAC on the Liberated Territory applies .

The [ ordinary ] courts erroneously applied to the complainant 's particular legal situation ... the LAW on the Lease of Flats on the Liberated Territory . Consequently , the [ ordinary ] courts in the contested judgments wrongly held that the complainant 's specially protected tenancy of the flat in PERSON was terminated by the operation of section CARDINAL(CARDINAL ) of the LAW on the Lease of Flats on the Liberated Territory after the expiry of the DATE time - limit following its entry into force ( that is , DATE ) .

For these reasons , the complainant 's constitutional right to equality before the law guaranteed by LAW paragraph CARDINAL of the LAW , as well as his constitutional right to a fair hearing guaranteed by LAW paragraph CARDINAL of the LAW ... , was violated by the contested judgments . ”

LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) , which was in force between DATE and CARDINAL DATE provided , in its relevant part , as follows :

Section CARDINAL

“ CARDINAL . NORP The provider of the flat may terminate the specially protected tenancy ... [ inter alia ] if the tenant does not pay the rent or the utility charges for DATE , or for DATE over DATE .

Termination of the specially protected tenancy for the reasons enunciated in paragraph CARDINAL may be effected if the tenant does not pay the rent or the utility charges due ... within a reasonable time after being warned by registered mail to do so . ”

Section CARDINAL

“ CARDINAL . A specially protected tenancy may be terminated if the tenant [ ... ] ceases to occupy the flat for an uninterrupted period exceeding six months .

A specially protected tenancy shall not be terminated under the provisions of paragraph CARDINAL of this section in respect of a person who does not use the flat on account of undergoing medical treatment , performance of military service or other justified reasons .

It shall also be considered that the flat has not been used for an uninterrupted period when the tenant only occasionally visits the flat ... ”

Under section CARDINAL ) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy .

In its decision no . Rev-CARDINAL/CARDINAL of DATE ORG interpreted section CARDINAL of LAW in the following way :

“ The specially protected tenancy is not lost ex lege by the mere fact of non - use of the flat for DATE . Rather , that is a ground for termination of a specially protected tenancy that can be terminated only by the provider of the flat . ”

The tenancy was terminated as soon as the court 's judgment upholding the claim of the provider of the flat became res judicata ( see , inter alia , ORG decision no . CARDINAL of DATE ) .

In a series of decisions ( for example , in cases ORG . CARDINAL of DATE , ORG - CARDINAL of DATE , CARDINAL of DATE , Rev-CARDINAL/CARDINAL - CARDINAL of DATE , and CARDINAL of DATE ) starting with decision no . CARDINAL of QUANTITY DATE , ORG interpreted another aspect of section CARDINAL ) of LAW as follows :

“ The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not , per se , make the non - use [ of the flat by the tenant ] justified . In other words , if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time - limits set forth in section CARDINAL(CARDINAL ) of LAW ... , then the [ illegal occupation of the flat by a third person ] is not an obstacle to the termination of the specially protected tenancy . ”

The Lease of Flats Act ( Zakon o najmu stanova , Official Gazette no . CARDINAL/CARDINAL of DATE ) , which entered into force on CARDINAL DATE , abolished the specially protected tenancy as such ( section CARDINAL paragraph CARDINAL ) but provided that proceedings instituted under LAW should be concluded under the provisions of that LAW ( section CARDINAL paragraph CARDINAL ) .

The Specially Protected Tenancies ( Sale to Occupier ) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL with subsequent amendments – “ the Sale to Occupier Act ” ) , which entered into force on DATE , entitled the holder of the specially protected tenancy of a flat in social or state ownership to purchase it from the provider of the flat under favourable conditions .

Section CARDINAL(CARDINAL ) provided that a written request for the purchase of a flat had to be made within DATE of the date of the LAW 's entry into force ( this time - limit was by subsequent amendments to the LAW extended until DATE for the flats located on the liberated territory ) .

The relevant part of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) provides as follows :

“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the judgment of ORG becoming final , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .

( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .

( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom . ”


George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by ORG , a firm of lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG .

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

NORP The applicant was born in GPE , but subsequently moved to GPE . He became an alcoholic and was convicted of a number of violent offences . On DATE he was arrested and charged with the murder of an DATE youth , his partner ’s cousin . On DATE at ORG in GPE he pleaded guilty to the offence of murder and was sentenced to imprisonment for life . On DATE the trial judge , who described the offence as a “ sudden unpremeditated attack in a moment of drunken and unreasoned jealousy upon a complete stranger ” , expressed the view that the length of detention necessary to meet the requirements of retribution and general deterrence was DATE . On DATE the Lord Chief Justice of GPE and GPE expressed the view that he took a slightly more severe view of the case and recommended “ that DATE would be the appropriate minimum ” ( hereafter referred to as the “ tariff ” ) . The Home Secretary duly fixed the tariff at DATE and the applicant was informed of this .

On DATE an order pursuant to section CARDINAL ) of MONEY DATE was made , transferring the applicant to GPE to serve the remainder of his sentence . The effect of such an order for a life prisoner was that his release would be regulated by the law and practice of GPE relating to life sentence prisoners . Under the NORP system at that time , ORG , an administrative body whose membership included the Permanent Under - Secretary of ORG and other senior GPE officials , advised the Home Secretary as to when a life prisoner should be released on licence , but had no power to order release . ORG would generally carry out a review after the prisoner had served CARDINAL , then CARDINAL , then DATE in custody , and thereafter at intervals fixed by ORG . This was set out in an explanatory memorandum provided to the applicant . On DATE he signed a transfer document agreeing to the transfer to GPE and acknowledging that the differences between the GPE and ORG had been explained to him .

On DATE ORG were informed by their NORP counterparts that a tariff of DATE had been set in respect of the applicant and that a first review should take place in DATE . In accordance with the NORP procedure , however , ORG considered the applicant ’s case on DATE . The result of that review was communicated to the applicant by letter dated DATE . This stated , inter alia , that ORG had decided that “ the appropriate retributive period in this instance would fall at DATE in line with the tariff set by the ORG ” . ORG considered that alcohol , drugs and relationships with women were risk factors for the applicant and that a controlled and structured pre - release programme and supervision in the community would be necessary . On that basis ORG recommended that the applicant ’s case be referred for consultation with the judiciary with a view to his release on life licence after expiry of the CARDINAL-year period . It considered that the combined consultation and anticipated pre - release phase of DATE would be sufficient to test whether or not the applicant was a suitable candidate for release on licence .

On DATE the applicant was informed by letter , that on DATE he would join the Pre - Release Scheme . He was reminded that the setting of a provisional release date did not automatically mean that release on licence would follow . He was further informed that his release was subject to his continued good behaviour and to suitable resettlement arrangements being made . Phase CARDINAL of the Pre - Release Scheme began immediately . On DATE the applicant commenced Phase CARDINAL . This involved working at approved jobs and staying in ORG hostel , with extended paroles at DATE .

On DATE the applicant was due to commence Phase CARDINAL . On that date he failed to attend at an alcohol management programme or to report to work . As a result he was posted as unlawfully at large and remained so for DATE . He was returned to the prison on DATE and formally suspended from ORG . On DATE ORG wrote to the applicant confirming that he had been suspended from ORG . On DATE the decision was taken to restore him to ORG , on the condition that he complete an intensive alcohol management programme . The applicant completed the residential course and moved through Phase CARDINAL of the Pre - Release Scheme . On DATE he commenced Phase CARDINAL . On DATE he failed to report for work and on DATE he was posted unlawfully at large . He was arrested by the police in GPE in an intoxicated state and returned to the prison on DATE .

On DATE the applicant was informed by letter that he was formally suspended from ORG . He was invited to make written representations to the multi - disciplinary team which would decide whether he should be readmitted to the Scheme . On DATE the applicant ’s solicitors wrote to ORG , stating inter alia :

“ ‘ Our client was admitted to ORG by the Secretary of ORG acting through a lawfully constituted body , namely ORG . While our client has not yet received a tariff under the provisions of ORG it is clear that the punishment element of our client ’s sentence has been served . To suggest otherwise would be contrary to the findings of the PERSON who found him suitable for the scheme in both DATE and DATE .

Our client was therefore clearly serving that part of his sentence which relates to the prevention of risk and his perceived dangerousness to , society . To our knowledge it has not been alleged that our client has committed any crime whatsoever . We are instructed that the sole reason for his arrest on DATE was the request by the prison service . This is further supported by the fact that our client has not been charged with any criminal offence and has not been questioned by police in relation to any offence whatsoever .

Furthermore we would contend that for any decision to be taken to revoke our client ’s status on ORG Scheme that any such allegations or offences would have to create a belief that our client was at risk of committing a further violent offence . We contend that any such belief is simply untenable in these circumstances . We would contend that to recall our client to GPE without recourse to a judicial authority is therefore unlawful and in breach of our client ’s LAW rights as protected under LAW . ”

ORG replied on DATE as follows :

“ Mr PERSON ’s continued suspension from the pre - release scheme is primarily because of his risk of violent offending . The key factors in this assessment are :

Alcohol was a significant factor in Mr PERSON ’s index offence . In spite of the best efforts of the staff at ORG , Mr PERSON admits to drinking alcohol and to being drunk since his completion of the alcohol programme . Indeed , PERSON now admits to drinking alcohol prior to his suspension from the pre - release scheme on DATE , during his subsequent period unlawfully at large , prior to his second suspension from the pre - release scheme on DATE and during his most recent period unlawfully at large .

Mr PERSON had been posted unlawfully at large by ORG on DATE . However , PERSON came to the attention of [ the police ] because of the disturbance he was causing in the street .

Mr PERSON was in an intoxicated state when arrested by Police in GPE on DATE . Upon his return to PERSON he became abusive to ORG during a cell search and was later found guilty of assaulting a Prison Officer . He was awarded DATE cellular confinement for this incident , which involved him in pushing his fist into an Officer ’s face .

Mr PERSON ’s behaviour during periods of temporary release clearly shows a pattern where he can not be trusted to comply with the terms and conditions of his release . He has now been found guilty of being unlawfully at large on CARDINAL occasions as set out below . ...

These failures , coupled with his alcohol problem , not reporting for work and not attending alcohol management sessions in DATE , raise serious questions about Mr PERSON ’s ability to comply with the elements of risk management designed to prevent further violent offences . ...

Further consideration is required regarding how best to address the risk factors in this case and the investigation into the circumstances surrounding Mr PERSON ’s suspension from the pre - release scheme is also still ongoing . In these circumstances , and for all the concerns listed above regarding Mr PERSON ’s potential for relapse and violence , PERSON will remain suspended from the pre - release scheme . ”

On DATE the applicant lodged an application for judicial review of the decision to return him to prison . He claimed that his recall to prison and detention from DATE was unreasonable , arbitrary and in breach of LAW , since the tariff set in his case by the ORG Secretary had expired in DATE . The applicant contended that he should only have been detained after that date if there were a risk that he would commit violent offences if released , and that the events which led to his recall involved breach of the conditions of ORG , but not violent offending . In addition , he contended that , having served the penal element of his offence , he was entitled to challenge the lawfulness of his continued detention but had been afforded no such opportunity .

On DATE the Life Sentences ( GPE ) Order DATE ( “ the Life Sentences Order ” ) came into effect , changing the system for the release of life sentence prisoners in GPE . In the case of a prisoner sentenced to imprisonment for life , the trial judge was henceforth required to fix the minimum term the prisoner should serve in order to satisfy the requirements of retribution and deterrence . When the prisoner had served this tariff , the Secretary of ORG was required to refer his case to ORG , a new body created under the Order , which would consider whether it was necessary that the prisoner should be confined further for the protection of the public from serious harm and which was obliged and empowered to order his release if it did not consider further detention necessary . A prisoner was entitled to review by ORG on expiry of the tariff and at DATE intervals thereafter . LAW Sentences Order applied the release provisions to life prisoners transferred to GPE . LAW provided that , for existing life prisoners , the tariff would be set by the Secretary of ORG following a recommendation of the Lord Chief Justice . On DATE ORG decided that the Lord Chief Justice ’s recommendation was binding on the Secretary of ORG ( Re PERSON [ DATE ] NICA CARDINAL ) .

On DATE , in accordance with the provisions of the Life Sentences Order , the applicant was informed that his case would soon be referred to the Lord Chief Justice for him to decide what tariff to recommend to the Secretary of ORG . The applicant was given the opportunity to submit representations , which he declined . On DATE the Lord Chief Justice recommended that the applicant ’s tariff be fixed at DATE . The applicant was advised of this and given a further opportunity to make any representations , which he again declined . His case was referred to ORG on DATE .

The applicant ’s judicial review application was heard by ORG , which delivered judgment on DATE . The court rejected the applicant ’s submission that his case was analogous to that of GPE v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV , where a mandatory life prisoner had completed the tariff part of his sentence and was released on licence , subsequently to be recalled to prison following the commission of an offence unrelated to the index offence of murder . In the applicant ’s case , once he had been transferred to GPE , he became subject to the release provisions for mandatory life prisoners which applied in that jurisdiction . He had not been released on licence under LAW ( GPE ) Act DATE , nor was he scheduled for such release . According to the decision of ORG , the pre - licence part of the applicant ’s sentence would not be completed until he had successfully passed through a Pre - Release Scheme . As part of that Scheme , he had been allowed out of prison on a temporary basis , subject to conditions , which he understood . The prison authorities were rightly concerned about the applicant ’s breach of his temporary release conditions , in particular his drinking . As regards the alleged violation of LAW , the judge noted that at all stages the applicant would have been able to establish the lawfulness of his detention through judicial review proceedings or an application for habeas corpus , although the chances of success in relation to a prisoner lawfully detained following conviction were limited . The Life Sentences Order had introduced a determinate element to the sentences of life prisoners in GPE , following the expiry of which they would only be lawfully detained if this was necessary to protect the public . The procedure under the Order had been slightly delayed because of the need to determine the legal issues raised by the PERSON case , but the applicant ’s tariff had now been considered by the Lord Chief Justice and his file had been referred to ORG . The applicant had not established that his detention was unlawful or arbitrary nor that he had been denied an opportunity to challenge its lawfulness . The application for judicial review was therefore dismissed .

At ORG hearing on DATE , the Commissioners found that the applicant remained a risk to the public because of his tendency to react to stress by abusing alcohol . They declined to order his release and recommended that he should continue with the therapy he was receiving in prison . The applicant re - entered ORG in DATE , but was unlawfully at large again DATE and DATE . His case came before ORG again on DATE , on which date the hearing was adjourned to DATE in order to obtain psychiatric evidence . Again , the Commission did not direct his release , but recommended that he complete a cognitive self - change programme . At a further hearing in DATE the applicant ’s case was adjourned for DATE to permit him to be tested in a ORG Scheme which commenced in DATE .

The applicant appealed to ORG of GPE against the judgment of ORG . His appeal was dismissed on DATE . ORG held that , in the light of recent domestic case - law and the ORG judgment ( cited above ) , the fixing of the applicant ’s tariff by the Home Secretary in DATE or DATE had been a sentencing exercise rather than an administrative act . When the applicant was transferred to GPE , therefore , he came as a prisoner sentenced to a mandatory life sentence with a tariff of DATE . At the expiry of this tariff , the applicant became entitled to a review of the need to continue detaining him on grounds of dangerousness by a tribunal compliant with LAW . However , such a review did not take place until DATE , when a review was carried out by ORG . There had , therefore , been a violation of LAW . Nonetheless , ORG underlined that although ORG had not had the power to order release , as required by LAW , it had considered the applicant ’s case from DATE until the coming into force of the DATE Order with exemplary care . The applicant was an alcoholic who , at DATE , had murdered a young man in a violent attack motivated by jealousy which was without foundation . Despite all the efforts made to keep him off alcohol and to provide him with a release date he had been unable to control his alcoholism . Inevitably , ORG , and subsequently ORG , had been unable to release him on licence since he remained a serious risk to the public . If an independent tribunal had examined his case in DATE , it would have been bound to reach the same conclusion , namely to require the applicant to complete a ORG , which he had not been able successfully to complete to date . The applicant had , therefore , suffered no damage as a result of the breach of LAW . Furthermore , there had been no breach of LAW as a result of an independent review immediately following the expiry of the tariff , because the detention continued to be justified under the terms of the mandatory life sentence and the delay in fixing the tariff in GPE and carrying out an independent review was not arbitrary . ORG further held that , even if there had been a breach of LAW , the declarations sought by the applicant would have been rejected on the same grounds as under LAW .

The applicant sought permission to appeal to ORG , which was refused by ORG on DATE and by ORG on DATE , on the grounds that there was no arguable point of law of public importance involved .


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicants , a married couple , were born in DATE and DATE respectively and live in the village of PERSON in GPE .

The applicants are the parents of Mr PERSON , born in DATE . The first applicant is the sister of Mr PERSON , born in DATE . The latter is the brother - in - law of the second applicant .

The description of the events below is based on the information contained in the application form and written statements by the first and second applicants , dated DATE and DATE respectively .

On DATE the first applicant , PERSON and PERSON were travelling in the applicants’ VAZ-CARDINAL vehicle from the village of GPE to the village of PERSON .

At the NORP federal forces roadblock located at the entrance point of GPE village ( hereinafter “ the GPE roadblock ” ) NORP servicemen stopped the applicants’ vehicle to carry out a check . At the roadblock the first applicant saw a group of CARDINAL servicemen of NORP ethnic origin , who were standing near a silver - grey CARDINAL - door Niva vehicle and speaking to each other in NORP . The first applicant observed them for a while and was able to memorise their faces . She also specifically noticed that , whilst the servicemen from the roadblock who checked the identity papers were LANGUAGE , those standing by the FAC vehicle were NORP . After checking PERSON and PERSON identity papers , NORP servicemen entered the relevant information in the roadblock logbooks and allowed them to continue their journey .

The first applicant , PERSON and PERSON then drove through LOC and crossed the border into LOC . At the bridge in the vicinity of the entrance point of GPE village they saw CARDINAL NORP servicemen from the group they had already seen at the GPE roadblock . The servicemen walked towards the vehicle and ordered it to stop . CARDINAL of the servicemen ordered the driver and the passengers , in NORP , to get out of the vehicle . PERSON , PERSON and the first applicant complied with the order and got out of the car . CARDINAL of the servicemen then ordered PERSON and PERSON to get back into the applicants’ vehicle . They obeyed and got into the back seats . At the same moment CARDINAL servicemen joined them in the back seat , the third serviceman got into the driver ’s seat and the vehicle moved off quickly . PERSON shouted in NORP : “ That ’s my mother ! Do n’t leave her alone ! ” and the first applicant rushed towards the car . However , the car did not stop and the first applicant ran into a bridge barrier and fell to the ground .

The applicants have not seen PERSON and PERSON since .

On DATE , shortly after the car with the abductors had left , the first applicant managed to stop a private vehicle , which took her home . Once there she told the second applicant about the abduction , and the applicants immediately left for GPE , intending to alert the ORG of the Interior ( “ the ROVD ” ) to the incident .

On their way , QUANTITY from the bridge , where the first applicant , her son and brother had been stopped by the NORP servicemen , the applicants saw their VAZ-CARDINAL vehicle . It was parked QUANTITY from the road , at a dugout in which were CARDINAL NORP servicemen . In the ORG submission , on DATE NORP military forces had groups of servicemen stationed at the GPE road at QUANTITY distance from each other . The applicants saw that CARDINAL of the doors of their VAZ-CARDINAL vehicle were open and its headlights were on . PERSON mobile phone was in the vehicle . The first applicant asked the servicemen how their car had arrived at the dugout . They replied that it had arrived there , followed by a CARDINAL - door silver - grey Niva vehicle . CARDINAL people were taken out of the VAZ-CARDINAL vehicle and put into the silver - grey Niva vehicle , which then left in the direction of the village of GPE - Yurt .

After that the applicants took PERSON mobile phone and went to the ROVD . From there the second applicant , the head of the ROVD , whom the applicants identified as “ ORG ” , and several police officers left for the GPE roadblock . The first applicant stayed at the ROVD and lodged a written complaint about the abduction of her son and brother .

On DATE , on arrival at the GPE roadblock , the second applicant and ORG spoke to a senior roadblock officer from the LOC military commander ’s office . He confirmed that the servicemen at the roadblock had checked PERSON and PERSON identity papers and stated that everything was in order , and that the CARDINAL men had been let through the roadblock and had left . Meanwhile the first applicant also arrived at the roadblock . While the second applicant was speaking to the officer , a UAZ vehicle with CARDINAL NORP servicemen in it arrived at the roadblock . The first applicant identified them as members of the group of NORP servicemen she had seen at the LOC roadblock while the authorities were checking her relatives’ identity papers . The applicants immediately asked those servicemen where the other members of their group were and where they had taken PERSON and PERSON . The CARDINAL men laughed and answered that they had not arrested PERSON and PERSON . They also stated that they did not know the other servicemen who had been at the FAC roadblock with them . According to the applicants , the head of the ORG told them that the CARDINAL NORP servicemen were from the special ORG of ORG ( “ the GRU ” ) and that they were called “ LOC ” after their commander PERSON . The applicants then returned home .

On DATE the applicants again complained to various ORG bodies about the abduction of PERSON and PERSON . They did not keep copies of those complaints .

On DATE or DATE a certain Mr GPE , a ORG officer , visited the applicants and told the second applicant that a certain Mr NORP , a GRU colonel and commander of the PERSON regiment , wished to talk to him .

On DATE the applicants and Mr GPE drove to a NORP federal forces base located in the village of GPE in GPE . The second applicant left his vehicle , with the first applicant and Mr GPE inside . At the military base checkpoint he was met by CARDINAL NORP servicemen , CARDINAL of them a warrant officer and the other a captain . They accompanied the second applicant into the checkpoint building , where PERSON NORP was already waiting for him .

Mr NORP confirmed that the applicant ’s son was being held in the military base and said that he “ opened his eyes when touched but then rolled them up ” . Mr NORP then asked the second applicant to write a note for his son , “ telling him to answer their questions ” . The second applicant asked PERSON what statement they wanted from his son , but received no reply . The second applicant then handed over to Mr NORP medical certificates attesting to his son ’s disability . Mr NORP looked at them , and from his reaction the second applicant inferred that Mr NORP had realised that his servicemen had beaten up a seriously ill person . The second applicant then told PERSON that he would not write any notes for his son and requested that he be released . PERSON that “ they did not have a deal then ” and ordered the servicemen to accompany the second applicant to the exit , which they did . The second applicant returned to the car and left the premises with the first applicant .

On an unspecified date in DATE the first applicant received a phone call on her mobile phone from a person who whispered “ Mother , mother ! ” and then suddenly the conversation was disconnected . The first applicant inferred that it was PERSON and , since the number was displayed , she called back . A woman replied to her in NORP and immediately hung up . When the first applicant dialled the number again , a man ’s voice told her not to call that number any more . The first applicant informed the law - enforcement authorities about the call . In the applicants’ submission , at the material time the only company providing mobile communication services in GPE was PERSON . The figures CARDINAL indicated that the number from which she had received the call was not a PERSON number but was from another company . In the applicants’ opinion , only NORP army servicemen could have had phone numbers from mobile communication providers other than PERSON .

On an unspecified date in DATE Mr GPE visited the applicants again and offered them information on PERSON and PERSON in exchange for MONEY ( RUB ) . DATE the second applicant met PERSON in GPE and the latter told him that PERSON and PERSON were not alive . Mr GPE promised the second applicant that their bodies would be retrieved , and left .

DATE the second applicant and his relative went to the village of GPE to meet Mr GPE He told the second applicant that there were CARDINAL mass graves in GPE but he did not know in which of them PERSON and PERSON had been buried . He also specified that their bodies were in different graves and that they “ had been shot dead by NORP in the presence of a NORP ” . He noted however that he had not witnessed the killings .

On an unspecified date the second applicant contacted a NORP army general whom he knew well and told him about Mr NORP The general told the applicant that this was the first time he heard that name and that it must have been a false name .

The Government submitted that on DATE , on the road between PERSON and GPE , near the bridge close to the village of ORG , CARDINAL unidentified individuals wearing camouflage uniforms and carrying automatic weapons had stopped a vehicle in which PERSON and PERSON were travelling , following which the latter disappeared .

It appears that following the ORG complaints about the abduction of their relatives the ROVD carried out an inquiry into their allegations . The inquiry was given the number CARDINAL . The exact date of the opening of the inquiry remains unclear .

On DATE the prosecutor ’s office of LOC ( “ the district prosecutor ’s office ” ) received the inquiry file from the ROVD .

On DATE the district prosecutor ’s office instituted a criminal investigation in respect of the abduction of PERSON and PERSON under LAW of LAW ( aggravated kidnapping ) . The case file was assigned DATE . The decision stated that at TIME on DATE at the bridge near GPE village , CARDINAL unidentified armed individuals in camouflage uniforms had stopped the VAZ-CARDINAL vehicle in which PERSON , PERSON and the first applicant were travelling , and had taken PERSON and PERSON to an unknown destination .

By a letter of DATE the prosecutor ’s office of GPE ( “ the NORP prosecutor ’s office ” ) replied to the first applicant that it had examined her complaint about the abduction of PERSON and PERSON and informed her that on DATE the district prosecutor ’s office had opened a criminal investigation in respect of the abduction of her son and brother .

On DATE the first applicant was granted victim status in connection with the proceedings in case DATE . She was informed of that decision on DATE .

On CARDINAL DATE the first applicant wrote to the President of GPE . She described in detail the circumstances of the abduction of her relatives and her attempts to find them and asked for assistance in her search for them .

On DATE the NORP prosecutor ’s office replied to the first applicant that on DATE the district prosecutor ’s office had opened a criminal case in respect of the abduction of her relatives . The letter also stated that on DATE the investigation in case DATE had been suspended for failure to identify the perpetrators .

On DATE the first applicant wrote to the district prosecutor ’s office , seeking information on the progress of the investigation in case DATE . She requested that the proceedings be resumed if they had been suspended and sought access to the investigation case file and permission to make copies from it . There is no indication that the applicant ’s request was ever replied to .

By a letter of CARDINAL DATE the district prosecutor ’s office informed the first applicant that on DATE it had resumed the investigation in case DATE .

In the applicants’ submission , in DATE the district prosecutor ’s office informed them orally that on an unspecified date the investigation in case DATE had been suspended again .

The Government refused to submit any documents from criminal case file concerning the abduction of the applicants’ relatives , referring to LAW .

The information about the investigation provided by the ORG can be summarised as follows .

On DATE the district prosecutor ’s office opened a criminal investigation in respect of the abduction of PERSON and PERSON under LAW of LAW ( aggravated kidnapping ) . The case file was assigned DATE .

On DATE the investigation was suspended for failure to identify the perpetrators .

NORP On DATE the investigation was resumed because the investigating authorities had established that serviceman PERSON of military unit DATE was implicated in the abduction .

On DATE Mr PERSON ’s name was put on a wanted list .

On DATE the investigation of the abduction of the applicants’ relatives was entrusted to an investigating committee of the prosecutor ’s office of GPE in GPE ( hereinafter “ the investigating committee ” ) .

On DATE the investigating committee issued a decision to formally charge Mr PERSON with abducting the applicants’ relatives and the criminal case was transferred to the military investigating department with ORG of ORG in GPE ( hereinafter the “ investigating department ” ) . The case file was given the number DATE .

It appears that shortly thereafter the investigation was suspended again and that it was resumed on DATE .

In the ORG ’s submission the investigation in case DATE is still pending .

The Government stated that the findings of the preliminary investigation confirmed the version of events submitted by the applicants .

In the ORG ’s submission , the preliminary investigation established that PERSON had been doing military service in military unit DATE of the Vostok special - purpose battalion ( previously an infantry battalion ) since DATE . In DATE Mr PERSON had colluded with CARDINAL unidentified individuals with a view to abducting PERSON and PERSON . On DATE , having acquired information on the route taken by PERSON and PERSON , PERSON , armed with an automatic weapon , organised an ambush at the NORP road near PERSON with a view to arresting and abducting them . At TIME on the same day Mr PERSON stopped the VAZ-CARDINAL vehicle with PERSON and PERSON , following which “ Mr PERSON and CARDINAL armed men in camouflage uniforms arrested them and took them to an unknown destination ” , leaving the first applicant behind .

In the ORG ’s submission , the above account of the events was confirmed by the first applicant , who had been granted victim status , and the second applicant , who had been interviewed as a witness . The applicants also informed the investigators that following the abduction they had learnt from Mr GPE that their abducted relatives had been held at the military base in the village of GPE and eventually killed .

The first applicant confirmed those submissions during a check of her statement at the crime scene ( проверка показаний на месте совершения преступления ) and identified Mr PERSON from a photograph as the person who had abducted her son and brother .

Mr GPE , interviewed on an unspecified date , stated that he had learnt about the abduction of PERSON and PERSON from PERSON The second applicant had contacted Mr GPE DATE after the abduction , asking the latter to organise a meeting with officers of the military base , following which they had met a serviceman named PERSON , who had asked for RUB CARDINAL for information about the applicants’ son and had then informed them that the applicants’ relatives had been killed .

On an unspecified date the investigating authorities opened a criminal case against Mr PERSON on suspicion that he had caused serious damage to the health of a third person by shooting at him at the local market in the village of GPE on DATE . The case file was given the number DATE .

On DATE case DATE was transferred for investigation to an unspecified investigating department of an unspecified military unit .

On DATE criminal case CARDINAL was joined to the criminal case concerning the abduction of the applicant ’s relatives and the new file was given the number CARDINAL/CARDINAL/CARDINAL - CARDINAL .

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


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

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

On DATE ORG ( ORG ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to Article CARDINAL(b ) of LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant , a sergeant , was a member of the Işık sect which was supporting the establishment of a state based on NORP law . He established contacts with other officers who adopted the same ideology . He acted discriminatorily in favour of the soldiers who adopted the same ideology .

His superiors considered the applicant as an insubordinate and undisciplined soldier . The applicant was sentenced to CARDINAL days’ confinement for disobedience , CARDINAL days’ confinement for disobeying his superiors and CARDINAL days’ confinement for lack of discipline . The applicant also received warnings for lack of discipline .

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions .

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

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

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


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)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in the village of ORG , GPE . On DATE , at around CARDINAL.CARDINAL p.m. , the applicant was arrested by CARDINAL police officers on suspicion of breaching public order in the city of Tskaltubo and physically assaulting a taxi driver . He was taken to the NORP police department , where , with the status of a suspect , he protested his innocence and invoked his right to remain silent . An identification procedure which took place immediately afterwards resulted in the taxi driver identifying the applicant as one of the assaulters . According to the applicant , he was then severely beaten by QUANTITY police officers identified as GPE . , PERSON and PERSON , who demanded that he confess to verbally and physically assaulting the taxi driver .

On DATE the applicant was charged with an aggravated breach of public order , an offence under LAW ( a ) of LAW of GPE . He was questioned as an accused in the absence of a lawyer and confessed to the offence . Later , an ambulance was called for the applicant . An emergency doctor and a nurse , who visually examined him in the presence of a prosecutor , drew up a report noting that the applicant had a bruise on his right eye and a scratch on his nose . When asked about the source of the injuries , the applicant stated that he had fallen to the ground when running away from the police officers during the arrest .

On DATE ORG ordered the applicant ’s release on bail . According to the applicant , at the hearing he repeated his confession , since it was on that condition that the police officers had promised to release him .

On DATE the applicant , who by that time had developed a severe headache , general weakness and nausea , was taken to LOC hospital . On admission to the hospital he alleged that he had been beaten by police officers . After the required medical examination , the applicant was diagnosed with an internal head injury , concussion and chronic gastroduodenitis . A haematoma measuring QUANTITY by QUANTITY was observed on his right eye ; also , minor excoriations were found on his right thigh , left shoulder and right hand , and minor swelling in the right temple area and jaw . He was treated at the hospital until DATE .

On DATE the applicant was again hospitalised with recurring headaches and dizziness . He was treated for DATE and discharged from the hospital on DATE .

According to the case file , in DATE the applicant additionally consulted a doctor on a number of occasions following complaints of severe headaches and pain in the abdominal area .

On DATE the investigator in charge of the applicant ’s criminal case ordered a forensic examination in order to establish the gravity and potential cause of the applicant ’s injuries . On DATE the ORG regional office of ORG issued a conclusion on the basis of an analysis of the applicant ’s medical records . Confirming the applicant ’s diagnosis , the expert established that the injuries had been caused by a hard blunt object and belonged to the category of bodily injuries of minor severity causing long - lasting damage to the applicant ’s health .

On DATE the applicant ’s lawyer arranged for an alternative , independent examination of the applicant ’s medical records , inquiring in particular as to whether the injuries sustained by the applicant could have been the result of a single fall to the ground , as claimed by the applicant in his pre - trial confession and by the police officers in their testimony ( see paragraph CARDINAL below ) . In the report of DATE , the experts from ORG concluded the following :

“ According to the medical documentation submitted with respect to the injuries sustained by PERSON on DATE [ he had ] hematomas on the right thigh and in the area of the right eye , and bruises on the right thigh and between the fourth and fifth fingers of the right hand . The injuries have been caused by a hard blunt object . Having regard to the location of the injuries , they could not have been caused by a single fall from the own height over a hard blunt object . ”

On DATE ORG convicted the applicant of an aggravated breach of public order and sentenced him to DATE in prison and a fine . It was established that the applicant , along with CARDINAL acquaintances , had hired a taxi on TIME DATE to travel from the city of GPE to Tskaltubo . CARDINAL of his acquaintances had been dropped off on the way to Tskaltubo . Upon arrival at the place of destination , the applicant , who was heavily drunk , had refused to pay the taxi fare and had physically and verbally assaulted the taxi driver . Soon afterwards , police officers had arrived . The applicant and his acquaintance had tried to run away . The applicant , however , had fallen down on some concrete slabs and had eventually been arrested , while his acquaintance had managed to escape .

The conviction was based , inter alia , on the statement of the victim , who identified the applicant as his assaulter , the statements of the QUANTITY police officers who had arrested him and the results of various forensic examinations . The conviction did not take into account the applicant ’s pretrial confession . According to the record of the hearing , the defence lawyer had requested ORG to declare the applicant ’s pre - trial testimony inadmissible , arguing that his confession had been extracted by ill - treatment ; however , the request was dismissed . The court concluded that there was no evidence to substantiate the applicant ’s allegations of ill - treatment .

On DATE ORG , modifying the classification of the offence to a simple breach of public order , upheld the applicant ’s conviction and replaced his prison sentence with a fine . The appellate court similarly rejected the applicant ’s allegation of illtreatment as unsubstantiated .

By a decision of DATE ORG of GPE dismissed the applicant ’s appeal on points of law .

On DATE the applicant lodged a criminal complaint against the police officers , alleging ill - treatment . The complaint was addressed to ORG . On DATE a criminal investigation was initiated into the alleged ill - treatment of the applicant under Article CARDINAL ) of LAW of GPE .

The prosecutor questioned CARDINAL police officers , including those who had arrested the applicant and CARDINAL of those whom he had implicated as having been involved in his alleged ill - treatment . They all denied beating the applicant . They maintained that the latter had sustained minor scratches on his nose and both hands when he had fallen on concrete slabs whilst fleeing the crime scene . The QUANTITY police officers who had chased the applicant added in their statements that in the dark they had failed to notice the applicant immediately and had fallen over him .

The prosecutor also questioned the taxi driver who had identified the applicant as his assaulter and the CARDINAL witnesses who had participated in the identity parade . They all confirmed that throughout their interaction with the applicant on DATE he had not voiced any grievances against the police . Furthermore , they could not recall any obvious signs of physical injuries on the applicant . The taxi driver also confirmed that he had seen the applicant falling down and the police officers falling over him .

The emergency doctor and the nurse who had visually examined the applicant on DATE were also questioned in the course of the investigation . They confirmed the accuracy of their findings concerning the injuries they had observed on the applicant DATE after his arrest ( see paragraph CARDINAL above ) . They further reiterated that the applicant had not complained about the actions of the police officers and had maintained that the injuries were the result of his accidental fall while attempting to escape from the police . No other investigative measures were taken .

On DATE the prosecutor decided to discontinue the proceedings for lack of evidence of a crime . The prosecutor based his findings on , amongst others , the results of the criminal proceedings conducted against the applicant , which at that time were at the stage of the pre - trial investigation . Referring to the evidence collected in the course of the above - mentioned criminal investigation , the prosecutor concluded that it had conclusively proved the applicant ’s guilt .

As regards the applicant ’s injuries , the prosecutor fully accepted the version of events put forward by the police officers concerning the applicant ’s fall . The decision referred primarily to the testimony by the police officers , who maintained that the applicant could have been injured when he had fallen on concrete slabs whilst fleeing the crime scene , or when they had restrained him . In support of his position , the prosecutor further relied on the confession of the applicant , which , according to the prosecutor , had been maintained at the hearing of DATE . The fact that the applicant had not indicated the police officers as having caused his injuries when he was medically examined on DATE or at the hearing of DATE was accorded particular weight by the prosecutor .

Finally , having regard to the medical report of DATE ( see paragraph CARDINAL above ) , the prosecutor concluded that he was unable to establish any ill - treatment on the part of the police officers and noted that the injuries sustained by the applicant could have occurred as a result of his accidental fall or “ as a result of justified use of force by police officers for the purpose of his arrest ” .

NORP The applicant ’s lawyer appealed to ORG against the prosecutor ’s decision of CARDINAL DATE . In the appeal the lawyer contended that rather than examining the applicant ’s allegations of illtreatment , the prosecutor had merely reiterated the findings of the preliminary investigation conducted in the course of the proceedings against the applicant . The lawyer objected in particular to the prosecutor having relied on the applicant ’s confession , instead of examining whether the confession had been extracted by ill - treatment . He further highlighted the prosecution authorities’ failure to organise a comprehensive forensic examination capable of establishing the cause of the applicant ’s injuries and their failure to visit and inspect the scene of the incident .

According to the record of the oral hearing of DATE , the applicant ’s lawyer , noting that the designated trial judge of ORG had also dealt with the bail proceedings in the criminal case against the applicant , requested her removal . The judge in question , however , dismissed the request as unsubstantiated . She concluded that during the bail proceedings the applicant had not raised any allegations of ill - treatment against the police officers and thus there was no reason to doubt her objectivity and impartiality .

By a decision of CARDINAL DATE ORG dismissed the applicant ’s appeal as unsubstantiated . Relying on the applicant ’s pre - trial confession , the statements of the police officers and the medical documents of DATE and DATE , the court confirmed the account of events presented by the police officers . In particular , the court held :

“ In view of the above it is established that PERSON confessed to committing the offence , he did not raise any allegations against the police officers , particularly concerning the beating , either upon his arrest , or at the meeting with the prosecutor or in the court when remanded in custody . ...

There is no evidence in the case file to suggest that the police officers have committed an act defined as a criminal offence , and thus the complaint is not supported either by the real circumstances pertaining to the case or by the legislation and should be rejected . ”

On DATE ORG upheld the decision of CARDINAL DATE , endorsing the reasons given by the first - instance court .

LAW ( a ) of the ORG states that the preliminary investigation is to be discontinued if the act or omission concerned is not an offence under LAW .

The relevant part of the report reads as follows :

“ C. Subjects of concern and recommendations

ORG remains concerned that despite extensive legislative reforms , impunity and intimidation still persist in ORG , in particular in relation to the use of excessive force , including torture and other forms of illtreatment by lawenforcement officials , especially prior to and during arrest ...

ORG is also concerned about the relatively low number of convictions and disciplinary measures imposed on law - enforcement officials in the light of numerous allegations of torture and other acts of cruel and inhuman or degrading treatment ... ”

The relevant parts of the ORG report read as follows :

“ Introduction

... ORG has continued to receive reports about torture and ill - treatment in GPE . Many cases still do not come to light because police cover up for their crimes and detainees are often afraid to complain or identify the perpetrators for fear of repercussions . Impunity for torture is still a big problem . ORG was concerned that procurators did not open investigations into all potential torture and ill - treatment cases in a systematic manner . In CARDINAL of cases where the procuracy has opened investigations the perpetrators have not been brought to justice . Case examples featured in the report demonstrate that investigations into allegations of torture or ill - treatment have often not been conducted in a prompt , impartial and independent manner .

More needs to be done to eradicate torture and ill - treatment

In DATE the large majority of injuries alleged to have been sustained through police ill - treatment were reportedly inflicted during the arrest . In the same period ORG continued to receive some cases where detainees were reportedly tortured or ill - treated in cars while being taken to a place of detention , in police stations , and in ORG . CARDINAL detainee alleged that he was illtreated during the remand hearing . There were also allegations that several people were attacked on the street by security service agents in plainclothes or taken to unpopulated places such as cemeteries or forests and ill - treated .

The methods used to torture or ill - treat detainees , as indicated in the reports ORG has received since the ‘ PERSON , include electric shocks ; putting plastic bags over the head of a detainee ; suspending a detainee from a pole between CARDINAL tables ; cigarette and candle burns ; placing the barrel of a gun in a detainee ’s mouth threatening to shoot ; blindfolding with adhesive tape ; hitting a detainee ’s ear with open palms ; threats to beat the detainee ’s family ; gagging the detainee with a piece of cloth so they can not shout ; beatings , including with truncheons and butts of guns , and kicking . ”