Violation of Art. 8;Violation of Art. 12;No separate issue under Art. 14;Non-pecuniary damage - finding of violation sufficient

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

NORP The applicant is a GPE citizen born in DATE and is a post - operative male to female transsexual . She worked for some time as a dental nurse in the army . In DATE , she applied for a course for the Enrolled Nurse ( General ) qualification , but was not admitted as she refused to present her birth certificate .

At DATE , the applicant retired with a disability pension on the basis of ill - health .

In DATE and DATE , the applicant wrote letters to various institutions requesting amendments to the relevant legislation to allow the recognition of transsexuals ' changed gender .

On DATE , in reply to her application for a student loan , a local authority required her to submit an original birth certificate in support of her application . On DATE , in reply to her application to be an administrative assistant in a prison , the applicant was requested to bring to an interview her birth certificate .

Under LANGUAGE law , a person is entitled to adopt such first names or surname as he or she wishes . Such names are valid for the purposes of identification and may be used in passports , driving licences , medical and insurance cards , etc . The new names are also entered on the electoral roll .

Under LANGUAGE law , marriage is defined as the voluntary union between a man and a woman . In the case of PERSON v. PERSON ( [ DATE ] Probate Reports CARDINAL ) , Mr Justice PERSON ruled that sex for that purpose is to be determined by the application of chromosomal , gonadal and genital tests where these are congruent and without regard to any surgical intervention . This use of biological criteria to determine sex was approved by ORG in NORP v. PERSON ( [ DATE ] ORG ) and given more general application , the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution , notwithstanding the fact that the accused had undergone gender reassignment therapy .

Under section CARDINAL(b ) of LAW DATE , any marriage where the parties are not respectively male and female is void . The test applied as to the sex of the partners to a marriage is that laid down in the above - mentioned case of PERSON v. PERSON . According to that same decision a marriage between a male - to - female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse ( obiter per Mr Justice PERSON ) .

This decision was reinforced by LAW ) of LAW DATE , according to which a marriage that has not been consummated owing to the incapacity of either party to consummate may be voidable . Section CARDINAL ) of the LAW provides that the court must not grant a decree of nullity if it is satisfied that the petitioner knew the marriage was voidable , but led the respondent to believe that she would not seek a decree of nullity , and that it would be unjust to grant the decree .

Registration of births is governed by ORG “ the DATE LAW ) . Section CARDINAL(CARDINAL ) of that LAW requires that the birth of every child be registered by ORG for the area in which the child is born . An entry is regarded as a record of the facts at the time of birth . A birth certificate accordingly constitutes a document revealing not current identity but historical facts .

The sex of the child must be entered on the birth certificate . The criteria for determining the sex of a child at birth are not defined in the LAW . The practice of the Registrar is to use exclusively the biological criteria ( chromosomal , gonadal and genital ) as laid down by Mr Justice PERSON in the above - mentioned case of PERSON v. PERSON .

The DATE LAW provides for the correction by the Registrar of clerical errors or factual errors . The official position is that an amendment may only be made if the error occurred when the birth was registered . The fact that it may become evident later in a person 's life that his or her “ psychological ” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error . Only in cases where the apparent and genital sex of a child was wrongly identified , or where the biological criteria were not congruent , can a change in the initial entry be made . It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect . No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex .

The Government point out that the use of a birth certificate for identification purposes is discouraged by ORG , and for DATE birth certificates have contained a warning that they are not evidence of the identity of the person presenting it . However , it is a matter for individuals whether to follow this recommendation .

A transsexual continues to be recorded for social security , national insurance , pension and employment purposes as being of the sex recorded at birth .

A male - to - female transsexual is currently entitled to a ORG pension at the retirement DATE applied to men and not DATE which is applicable to women . A full pension will be payable only if she has made contributions for DATE as opposed to DATE required of women generally . The Government have instituted plans to eradicate the difference between men and women concerning age of entitlement to ORG pensions . Equalisation of the pension age is to begin in DATE and it is anticipated that by DATE the transition will be complete .

NORP Under section CARDINAL(CARDINAL ) of LAW DATE , it is a criminal offence liable to a sentence of imprisonment to dishonestly obtain a pecuniary advantage by deception . Pecuniary advantage includes , under section CARDINAL ) , being given the opportunity to earn remuneration in employment . Should a post - operative transsexual be asked by a prospective employer to disclose all their previous names , but fail to make full disclosure before entering into a contract of employment , an offence might be committed . Furthermore , should the employer discover the lack of full disclosure , there might also be a risk of dismissal or an action by the employer for damages .

In its judgment of DATE , in the case of PERSON and ORG , ORG ( ECJ ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and , accordingly , LAW of DATE on the implementation of the principle of equal treatment for men and women as regards access to employment , vocational training and promotion and working conditions , precluded dismissal of a transsexual for a reason related to a gender reassignment . The ECJ held , rejecting the argument of ORG that the employer would also have dismissed PERSON if PERSON had previously been a woman and had undergone an operation to become a man , that :

“ ... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment , he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment .

To tolerate such discrimination would be tantamount , as regards such a person , to a failure to respect the dignity and freedom to which he or she is entitled and which the ORG has a duty to safeguard . ” ( paragraphs CARDINAL–CARDINAL )

The ruling of the ECJ was applied by ORG in a decision handed down on DATE ( ORG v. PERSON [ DATE ] CARDINAL Industrial Law Reports ) .

The Sexual Discrimination ( Gender Re - assignment ) Regulations DATE were issued to comply with the ruling of ORG in PERSON and ORG ( DATE ) . This provides generally that transsexual persons should not be treated less favourably in employment because they are transsexual ( whether pre- or post - operative ) .

Prior to DATE , for the purposes of the law of rape , a male - to - female transsexual would have been regarded as a male . Pursuant to section CARDINAL of ORG , for rape to be established there has to be “ vaginal or anal intercourse with a person ” . In a judgment of DATE , the Reading ORG found that penile penetration of a male to female transsexual 's artificially constructed vagina amounted to rape : NORP v. PERSON ( unreported ) .

Prison rules require that male and female prisoners shall normally be detained separately and also that no prisoner shall be stripped and searched in the sight of a person of the opposite sex ( Rules CARDINAL(CARDINAL ) and CARDINAL ) of the Prison Rules DATE respectively ) .

According to the Report of ORG DATE , see further below , paragraphs CARDINAL ) , which conducted a review of law and practice , post - operative transsexuals where possible were allocated to an establishment for prisoners of their new gender . Detailed guidelines concerning the searching of transsexual prisoners were under consideration by which post - operative male to female transsexuals would be treated as women for the purposes of searches and searched only by women ( see paragraphs PERCENT ) .

On DATE , the Secretary of ORG for ORG announced the establishment of an ORG on Transsexual People with the following terms of reference :

“ to consider , with particular reference to birth certificates , the need for appropriate legal measures to address the problems experienced by transsexuals , having due regard to scientific and societal developments , and measures undertaken in other countries to deal with this issue . ”

ORG produced a report in DATE in which it examined the current position of transsexuals in GPE , with particular reference to their status under national law and the changes which might be made . It concluded :

“ CARDINAL . Transsexual people deal with their condition in different ways . Some live in the opposite sex without any treatment to acquire its physical attributes . Others take hormones so as to obtain some of the secondary characteristics of their chosen sex . A smaller number will undergo surgical procedures to make their bodies resemble , so far as possible , those of their acquired gender . The extent of treatment may be determined by individual choice , or by other factors such as health or financial resources . Many people revert to their biological sex after living for some time in the opposite sex , and some alternate between the CARDINAL sexes throughout their lives . Consideration of the way forward must therefore take into account the needs of people at these different stages of change .

Measures have already been taken in a number of areas to assist transsexual people . For example , discrimination in employment against people on the basis of their transsexuality has been prohibited by ORG Regulations DATE which , with few exceptions , provide that a transsexual person ( whether pre- or post - operative ) should not be treated less favourably because they are transsexual . The criminal justice system ( i.e. the police , prisons , courts , etc . ) try to accommodate the needs of transsexual people so far as is possible within operational constraints . A transsexual offender will normally be charged in their acquired gender , and a post - operative prisoner will usually be sent to a prison appropriate to their new status . Transsexual victims and witnesses will , in most circumstances , similarly be treated as belonging to their acquired gender .

In addition , official documents will often be issued in the acquired gender where the issue is identifying the individual rather than legal status . Thus , a transsexual person may obtain a passport , driving licence , medical card etc , in their new gender . We understand that many non - governmental bodies , such as examination authorities , will often re - issue examination certificates etc . ( or otherwise provide evidence of qualifications ) showing the required gender . We also found that CARDINAL insurance company will issue policies to transsexual people in their acquired gender .

Notwithstanding such provisions , transsexual people are conscious of certain problems which do not have to be faced by the majority of the population . Submissions to the ORG suggested that the principal areas where the transsexual community is seeking change are birth certificates , the right to marry and full recognition of their new gender for all legal purposes .

We have identified CARDINAL options for the future ;

– to leave the current situation unchanged ;

– to issue birth certificates showing the new name and , possibly , the new gender ;

– to grant full legal recognition of the new gender subject to certain criteria and procedures .

We suggest that before taking a view on these options the Government may wish to put the issues out to public consultation . ”

The report was presented to ORG in DATE . Copies were placed in the libraries of both ORG and sent to CARDINAL recipients , including ORG members , ORG officials , Members of ORG , individuals and organisations . It was publicised by a ORG press notice and made available to members of the public through application to ORG in writing , E - mail , by telephone or ORG web site .

In the case of PERSON v. PERSON , EWCA Civ CARDINAL [ CARDINAL ] , CARDINAL FCR CARDINAL , the appellant who had been classified at birth as a man had undergone gender re - assignment surgery and in DATE had gone through a form of marriage with a man who was aware of her background . She sought a declaration under LAW DATE that the marriage was valid . ORG held , by a majority , that the appellant 's marriage was invalid as the parties were not respectively male and female , which terms were to be determined by biological criteria as set out in the decision of PERSON v. PERSON [ DATE ] . Although it was noted that there was an increasing emphasis upon the impact of psychological factors on gender , there was no clear point at which such factors could be said to have effected a change of gender . A person correctly registered as male at birth , who had undergone gender reassignment surgery and was now living as a woman was biologically a male and therefore could not be defined as female for the purposes of marriage . It was for ORG , not for the courts , to decide at what point it would be appropriate to recognise that a person who had been assigned to CARDINAL sex at birth had changed gender for the purposes of marriage . Dame PERSON , President of ORG noted the warnings of ORG about continued lack of response to the situation of transsexuals and observed that largely as a result of these criticisms an interdepartmental working group had been set up , which had in DATE issued a careful and comprehensive review of the medical condition , current practice in other countries and the state of LANGUAGE law in relevant aspects of the life of an individual :

“ [ CARDINAL . ] ... We inquired of PERSON on behalf of the Attorney - General , what steps were being taken by any government department , to take forward any of the recommendations of the ORG , or to prepare a consultation paper for public discussion .

[ CARDINAL . ] To our dismay , we were informed that no steps whatsoever have been , or to the knowledge of PERSON , were intended to be , taken to carry this matter forward . It appears , therefore , that the commissioning and completion of the report is the sum of the activity on the problems identified both by the Home Secretary in his terms of reference , and by the conclusions of the members of the working group . That would seem to us to be a failure to recognise the increasing concerns and changing attitudes across western LOC which have been set out so clearly and strongly in judgments of Members of ORG at GPE , and which in our view need to be addressed by the GPE ...

[ CARDINAL . ] We would add however , with the strictures of ORG well in mind , that there is no doubt that the profoundly unsatisfactory nature of the present position and the plight of transsexuals requires careful consideration . The recommendation of the interdepartmental working group for public consultation merits action by the government departments involved in these issues . The problems will not go away and may well come again before ORG sooner rather than later . ”

In his dissenting judgment , Lord Justice PERSON considered that the foundations of the judgment in PERSON v. PERSON were no longer secure , taking the view that an approach restricted to biological criteria was no longer permissible in the light of scientific , medical and social change .

“ [ CARDINAL . ] To make the chromosomal factor conclusive , or even dominant , seems to me particularly questionable in the context of marriage . For it is an invisible feature of an individual , incapable of perception or registration other than by scientific test . It makes no contribution to the physiological or psychological self . Indeed in the context of the institution of marriage as it is DATE it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seem right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth ...

[ CARDINAL . ] The present claim lies most evidently in the territory of the family justice system . That system must always be sufficiently flexible to accommodate social change . It must also be humane and swift to recognise the right to human dignity and to freedom of choice in the individual 's private life . CARDINAL of the objectives of statute law reform in this field must be to ensure that the law reacts to and reflects social change . That must also be an objective of the judges in this field in the construction of existing statutory provisions . I am strongly of the opinion that there are not sufficiently compelling reasons , having regard to the interests of others affected or , more relevantly , the interests of society as a whole , to deny this appellant legal recognition of her marriage . I would have allowed this appeal . ”

He also noted the lack of progress in domestic reforms :

“ [ CARDINAL . ] ... although the [ interdepartmental ] report has been made available by publication , PERSON said that there has since been no public consultation . Furthermore when asked whether the ORG had any present intention of initiating public consultation or any other process in preparation for a parliamentary PERSON , PERSON said that he had no instructions . Nor did he have any instructions as to whether the ORG intended to legislate . My experience over DATE suggests how hard it is for any department to gain a slot for family law reform by primary legislation . These circumstances reinforce my view that it is not only open to the court but it is its duty to construe s CARDINAL(c ) either strictly , alternatively liberally as the evidence and the submissions in this case justify . ”

In DATE , the Government presented to ORG the document “ Civil Registration : Vital Change ( Birth , Marriage and Death Registration in DATE ) ” which set out plans for creating a central database of registration records which moves away from a traditional snapshot of life events towards the concept of a living record or single “ through life ” record :

“ In time , updating the information in a birth record will mean that changes to a person 's names , and potentially , sex will be able to be recorded . ” ( para . CARDINAL )

“ CARDINAL.CARDINAL Making changes

There is strong support for some relaxation to the rules that govern corrections to the records . Currently , once a record has been created , the only corrections that can be made are where it can be shown that an error was made at the time of registration and that this can be established . Correcting even the simplest spelling error requires formal procedures and the examination of appropriate evidence . The final records contains the full original and corrected information which is shown on subsequently issued certificates . The Government recognises that this can act as a disincentive . In future , changes ( to reflect developments after the original record was made ) will be made and formally recorded . Documents issued from the records will contain only the information as amended , though all the information will be retained . ... ”

Liberty updated the written observations submitted in the case of GPE and GPE concerning the legal recognition of transsexuals in comparative law ( GPE and GPE v. the GPE judgment of DATE , Reports of Judgments and Decisions LOC , p. DATE , § CARDINAL ) . In its DATE study , it had found that over DATE there had been an unmistakable trend in the member ORG towards giving full legal recognition to gender re - assignment . In particular , it noted that out of CARDINAL countries analysed CARDINAL ( including GPE ) did not permit a change to be made to a person 's birth certificate in CARDINAL form or another to reflect the re - assigned sex of that person . In cases where gender re - assignment was legal and publicly funded , only GPE and GPE did not give full legal recognition to the new gender identity .

In its follow up study submitted on DATE , ORG noted that while there had not been a statistical increase in GPE giving full legal recognition of gender re - assignment within LOC , information from outside LOC showed developments in this direction . For example , there had been statutory recognition of gender re - assignment in GPE , and a similar pattern of recognition in GPE , GPE , GPE , GPE , GPE and all except CARDINAL of GPE . It cited in particular the cases of Attorney - General v. Otahuhu Family Court [ DATE ] CARDINAL NZLR CARDINAL and PERSON [ DATE ] FamCA CARDINAL where in GPE and GPE transsexual persons ' assigned sex was recognised for the purposes of validating their marriages : In the latter case , Mr Justice PERSON held :

“ I see no basis in legal principle or policy why NORP law should follow the decision in PERSON . To do so would , I think , create indefensible inconsistencies between NORP marriage law and other NORP laws . It would take the law in a direction that is generally contrary to development in other countries . It would perpetuate a view that flies in the face of current medical understanding and practice . Most of all , it would impose indefensible suffering on people who have already had more than their share of difficulty , with no benefit to society ...

... Because the words ' man ' and ' woman ' have their ordinary contemporary meaning , there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage . That is , it can not be said as a matter of law that the question in a particular case will be determined by applying a single criterion , or limited list of criteria . Thus it is wrong to say that a person 's sex depends on any single factor , such as chromosomes or genital sex ; or some limited range of factors , such as the state of the person 's gonads , chromosomes or genitals ( whether at birth or at some other time ) . Similarly , it would be wrong in law to say that the question can be resolved by reference solely to the person 's psychological state , or by identifying the person 's ' brain sex ' .

To determine a person 's sex for the law of marriage , all relevant matters need to be considered . I do not seek to state a complete list or suggest that any factors necessarily have more importance than others . However the relevant matters include , in my opinion , the person 's biological and physical characteristics at birth ( including gonads , genitals and chromosomes ) ; the person 's life experiences , including the sex in which he or she was brought up and the person 's attitude to it ; the person 's self - perception as a man or a woman ; the extent to which the person has functioned in society as a man or a woman ; any hormonal , surgical or other medical sex re - assignment treatments the person has undergone , and the consequences of such treatment ; and the person 's biological , psychological and physical characteristics at the time of the marriage ...

For the purpose of ascertaining the validity of a marriage under NORP law the question whether a person is a man or a woman is to be determined as of the date of marriage ... ”

As regarded the eligibility of post - operative transsexuals to marry a person of sex opposite to their acquired gender , ORG 's survey indicated that PERCENT of ORG permitted such marriage ( Annex CARDINAL listed GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) , while PERCENT did not ( GPE and GPE did not permit marriage , while no legislation existed in GPE , GPE , GPE and GPE ) . The legal position in the remaining PERCENT was unclear .

Article CARDINAL of the Charter of Fundamental Rights of ORG , signed on DATE , provides :

“ The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights . ”


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE . He is the elder brother of the applicant in the case of PERSON v. GPE , no . CARDINAL/CARDINAL , DATE .

The present applicant appears to have travelled from GPE to GPE with his family in DATE . He was subsequently granted indefinite leave to remain in GPE as the dependant of his parents . There is some dispute as to whether he remained continuously in GPE after his arrival , but it is clear that he returned to GPE at least twice prior to his deportation and that he married there in DATE . His current marital status and the whereabouts of his wife are not known .

The applicant ’s mother and siblings still live in GPE and are all naturalised NORP citizens . The applicant claimed , furthermore , that his mother was in poor health with diabetes and a heart condition and as such was more than normally dependent on the applicant and her other children . The applicant has CARDINAL children , all of whom were born in GPE , by CARDINAL separate partners . His children are aged DATE . At the time of his deportation , the applicant claimed to be in a relationship not with either of the mothers of his children but with a third NORP citizen , whom he had started seeing whilst in immigration detention in DATE .

On DATE , the applicant was convicted of having sexual intercourse with an underage female and of CARDINAL counts of attempted robbery . He was sentenced to CARDINAL years’ imprisonment in a young offenders’ institution . On DATE , he was convicted for the theft of a vehicle and sentenced to TIME of community service . On DATE , the applicant was convicted of driving whilst disqualified and without insurance and sentenced to CARDINAL GPE imprisonment . He was also disqualified from driving for DATE .

The applicant appears to have spent DATE in GPE in DATE . On DATE , he was convicted of CARDINAL counts of battery and of resisting or obstructing a constable , and sentenced to CARDINAL months’ imprisonment . On DATE , following a conviction for dangerous driving and other related offences , the applicant was sentenced to CARDINAL months’ imprisonment , disqualified from driving for a further DATE , and disqualified until he passed a driving test .

On DATE , the applicant was convicted of robbery , for which he was initially sentenced to CARDINAL years’ imprisonment . The sentence was reduced to DATE on appeal . As a result of this conviction , deportation proceedings against the applicant commenced and on DATE , he was notified of the Secretary of ORG ’s intention to make a deportation order against him .

The applicant did not exercise his right of appeal against the decision to deport him and the deportation order was signed on DATE . The applicant was convicted of a further driving offence in DATE . Directions were set for his removal to GPE on DATE , but cancelled when the applicant sought judicial review . The judicial review application was withdrawn by consent following agreement that further consideration would be given to the applicant ’s case on human rights grounds . A decision was made on DATE to refuse to revoke the deportation order but to grant the applicant an in - country right of appeal against this decision .

NORP The applicant ’s appeal was dismissed by ORG ( “ the ORG ” ) on DATE . The appeal was argued purely on the grounds of LAW . The ORG accepted that the applicant enjoyed family life in GPE . Although there were no insurmountable obstacles to his CARDINAL partners , both of whom were of NORP origin , and his children accompanying him to GPE , it was accepted that it would be unreasonable to expect them to do so , given that all were NORP citizens and the children had been educated in GPE . There was little evidence before the ORG as to the impact that the applicant ’s deportation would have on his children , since neither of the CARDINAL mothers of his children nor any third party had attended the hearing to give evidence . In any event , it was noted that the applicant had not seen any of his children since he had been remanded in custody in DATE , though he claimed to speak to all of them by telephone DATE .

The ORG did not believe the applicant ’s claims not to have returned to GPE since his arrival in GPE and not to have married there , since there was evidence to the contrary . It was not therefore accepted that he had no connections in GPE . No serious difficulty for the applicant in re - establishing himself in GPE was envisaged .

The ORG accepted that LAW would be engaged by the applicant ’s deportation , since he would inevitably be separated from his partners and children . However , the interference with his family life would be proportionate , having regard on the one hand to the applicant ’s persistent offending and the high risk he posed to p ublic safety , as assessed by his probation officer , and , on the other , to the lack of evidence as to a meaningful relationship between the applicant and his children over DATE .

An application for reconsideration of the ORG ’s decision was refused on CARDINAL DATE . Directions were again set for the applicant ’s removal , but cancelled when he claimed asylum on DATE . The basis of his claim was that his GPE families in GPE might seek to harm him because they had disapproved of his GPE love marriage and their emigration to GPE ; and that the relatives of CARDINAL women with whom he had had relationships in GPE were also after him . It is not clear who the women concerned were . His asylum claim was refused on DATE , since the applicant had had no direct contact with any of those persons whom he claimed to fear and it was not believed that any of them would recognise him , or know that he had returned to GPE , or be able to trace him . In any event , there was found to be a sufficiency of protection against the actions of non - state actors available in GPE . The applicant ’s asylum claim was certified as clearly unfounded , meaning that he had no further right of appeal from within GPE .

The applicant made further representations on DATE and CARDINAL and DATE , claiming that he feared his current partner ’s ex - husband , who had recently been deported to GPE , and that he was taking medication , namely methadone and various sleeping tablets , which would not be available to him once deported . His representations were rejected on DATE , as the applicant had not raised any new issues regarding his fear of return and his family life had previously been considered by the ORG . As to his concerns regarding his health , there were mental health facilities available in GPE . In any event , the applicant had been assessed by medical staff at the immigration detention centre as being fit to fly and had not been noted as having any particular medical problems .

Directions were set on DATE for the applicant ’s deportation to GPE on DATE . The applicant sought permission to apply for judicial review of the decision to set removal directions , but his application was refused by ORG on DATE . In the meantime , the applicant had also sought interim measures from this ORG under Rule CARDINAL of ORG on DATE , to prevent his deportation which had been reset for DATE . His application for interim measures was refused on CARDINAL DATE .

The applicant was deported to GPE on DATE .

Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG deems his deportation to be conducive to the public good .

Sections CARDINAL(CARDINAL ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against this decision , inter alia , on the grounds that the decision is incompatible with the Convention .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen .

Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of the Immigration Act DATE provide for the making of Immigration Rules by the Secretary of ORG . Paragraph CARDINAL of ORG provides :

“ CARDINAL . When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending , the decision maker will consider any further submissions and , if rejected , will then determine whether they amount to a fresh claim . The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered . The submissions will only be significantly different if the content :

( i ) had not already been considered ; and

( ii ) taken together with the previously considered material , created a realistic prospect of success , notwithstanding its rejection . ”

A fresh claim , if it is accepted as such by the Secretary of ORG , and if refused , gives rise to a fresh right of appeal on the merits . If submissions are not accepted as amounting to a fresh claim , their refusal will give rise only to a right to seek judicial review of the decision not to treat them as a fresh claim .


Violations of Art. 2;No separate issue under Art. 13;Violations of Art. 3;No violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in LOC . She is the mother of PERSON , a NORP national who was born in DATE and died on DATE .

On DATE Mr PERSON was involved in a fist fight in which he hit his former girlfriend 's boyfriend . The injured man died DATE .

On DATE criminal proceedings were instituted against Mr ORG on suspicion of having caused grievous bodily injury that resulted in the victim 's death , an offence under LAW of LAW .

On DATE Mr PERSON was convicted as charged and sentenced to DATE imprisonment in a correctional colony . On DATE he was taken into custody .

On DATE ORG upheld the conviction .

Mr PERSON was sent to serve his sentence at correctional facility no . PERSON in the town of GPE in GPE ( “ the GPE colony ” ) .

On DATE Mr PERSON , who was in a serious condition , was taken into hospital for in - patient treatment . He was diagnosed with PERSON syndrome and an acute ulcer condition . Doctors prescribed strict bed rest and medicines . On DATE Mr ORG 's state of health improved slightly .

On DATE he was escorted to Treatment and Prevention Institution no . CARDINAL ( CARDINAL ) ( lechebno - profilakticheskoye uchrezhdenie no . CARDINAL ( CARDINAL ) DATE “ prison hospital ” ) where he received treatment from DATE .

On DATE Mr PERSON was brought back from the prison hospital to the GPE colony with acute gastroduodenitis .

On DATE he was examined and diagnosed with chronic gastroduodenitis . Certain medicines and vitamins were prescribed .

On DATE the ORG of ORG quashed the judgments of DATE and CARDINAL DATE under the supervisory review procedure and remitted the case for a new trial .

On DATE Mr PERSON was transferred to the PERSON detention centre ( “ the FAC GPE ” ) .

On DATE Mr PERSON fainted in the court room . The court ordered a medical examination of Mr PERSON by doctors from the FAC SIZO and ORG . It put questions to them about Mr PERSON 's illnesses and asked whether he needed in - patient treatment and whether he could remain in detention .

On DATE ORG sent the following report to the court , signed by the deputy head doctor , the head of department and the doctor in charge :

“ Afinskiy ORG no . CARDINAL replies that Mr PERSON is undergoing treatment in the department of digestive illnesses in connection with a heart illness ( myocarditis ) and an acute condition of duodenal ulcer .

For treatment and differential diagnosis the patient is to remain in the department for DATE . [ He ] can not be held in an investigations ward or detention facility . ”

On DATE Mr PERSON was discharged from the hospital to ORG . On DATE he sought medical assistance and received out - patient treatment . He was diagnosed with stomach and duodenal ulcers , cardioneurosis and chronic gastroduodenitis .

On DATE the Severskiy ORG pronounced a new conviction against Mr ORG and sentenced him to DATE imprisonment in a correctional colony . On DATE ORG upheld the conviction on appeal .

On DATE Mr PERSON was transferred to the GPE colony . According to the applicant , upon his arrival all his medicines were taken away from him and no medical assistance was provided .

At TIME on DATE Mr PERSON contacted the medical department of the colony , complaining of severe pain . He was diagnosed with a perforated duodenal ulcer and peritonitis . In view of his serious condition , a decision was made to transfer him to a civilian hospital .

At TIME on DATE surgery was performed on PERSON at ORG ( “ ORG ” or “ the civilian hospital ” ) .

The applicant maintained that she had visited her son on DATE and CARDINAL DATE and seen him shackled with handcuffs by his left hand to the hospital bed . In support of her allegation she produced a statement signed by a friend of hers , PERSON , who had also come to visit on QUANTITY DATE . With the permission of the head of the resuscitation department , the applicant had stayed TIME on a spare bed . Her son had given her a signed form authorising her to collect his personal belongings .

On DATE and DATE the applicant complained to the GPE prosecutor , ORG , the President of ORG and the deputy head of the GPE colony about the handcuffing of her son and asked that he not be sent to the prison hospital in view of his condition .

On DATE Mr PERSON was diagnosed with a breakdown of sutures in the duodenum and duodenal fistula and peritonitis . He was discharged from ORG and transported to the prison hospital , QUANTITY from GPE .

According to the ORG , PERSON was transported in a “ special car ” accompanied by an experienced medical nurse who carried a set of necessary medical equipment on her . They produced a written statement by the nurse . She indicated that during the journey she had talked to Mr PERSON about his health and taken his blood pressure , which had been stable . The patient had had no complaints . The journey had lasted TIME .

According to the applicant , she had objected to her son 's discharge and transfer but the head of the resuscitation department , PERSON , had told her that the transfer was mandatory because Mr PERSON was a convict . She had helped the medical staff to put the applicant , wrapped in a blanket , onto a wheel stretcher and then into the prison van ( avtozak ) onto a layer of padded cotton mattresses .

On DATE further surgery on Mr PERSON 's abdominal organs was performed in the prison hospital .

On DATE the applicant came to see her son and learnt that he had died at TIME DATE .

According to the death certificate of DATE , the autopsy established that the death had been caused by acute anaemia ( blood loss ) provoked by massive gastrointestinal haemorrhaging . A perforated duodenal ulcer was noted as a concomitant illness .

On DATE an assistant to ORG informed the applicant of the decision not to initiate criminal proceedings in connection with Mr PERSON 's death .

On DATE the GPE district prosecutor told the applicant that the medical specialists at the GPE colony had done all they could to save Mr PERSON 's life , as they had sent him to ORG , which possessed the necessary surgical equipment .

On DATE the GPE district prosecutor issued a decision to initiate criminal investigation no . CARDINAL into the actions of the medical specialists at ORG . ORG was requested to carry out an inquiry under LAW of LAW ( negligent infliction of a grievous bodily injury resulting from incompetent performance of professional duties ) .

DATE the investigators interviewed Doctors Du . , ORG . and PERSON from ORG , the psychologist from the GPE colony and PERSON , the surgeon from the prison hospital . Mr NORP testified as follows :

“ ... on DATE of arrival Mr PERSON was in a serious state , unfit for transport ... Conservative therapy was recommended ... In TIME DATE he began to haemorrhage and we started discussing surgery ... On DATE he had another bout of intestinal haemorrhaging from the ulcer defect ... [ The hospital ] has no facilities for blood transfusion because it has no contract with the blood - transfusion service . For that reason Mr PERSON received blood substitutes which could not stabilise haemodynamics adequately ... ”

On DATE a police investigator ordered a medical inquiry into the circumstances of Mr ORG 's treatment and death .

By a decision of DATE , the applicant was granted victim status in criminal case no . DATE .

On DATE a panel of CARDINAL medical specialists returned the following unanimous findings :

“ ... DATE . Given the duodenal ulcer complicated by perforation ( defect of the wall of a hollow organ ) , the transfer of Mr PERSON from the [ GPE ] colony to ORG for surgery was vital ...

The examination and treatment of Mr Tarariyev in ORG at the time of his arrival was timely as his condition required emergency surgery . Owing to a short and inadequate report on the operation at ORG ( the state of the stomach and organs of the abdominal cavity is not described , there is no indication of the method of suturing the ulcer defect or disinfecting and draining the abdominal cavity ) , it is impossible to determine whether the surgical technique was correct . DATE a breakdown of the sutures applied to the ulcer defect was observed , which gives rise to doubts about the quality of ... the surgery performed ...

On DATE the patient ORG was unreasonably transferred to [ the prison hospital ] with the diagnosis ' Sutures breakdown in the duodenum . Duodenal fistula in formation , peritonitis ' . The patient was in an extremely serious condition , not fit for transport and required further emergency surgery – further laparotomy , revision and sanation of organs of the abdominal cavity and removal of the duodenal fistula , which was not done by either the doctors at ORG or the doctors at the [ prison hospital ] . His transportation to the [ prison hospital ] aggravated the patient 's condition and delayed emergency medical assistance . For unspecified reasons the surgery in the [ prison hospital ] was performed too late , DATE after [ the patient 's ] arrival ...

The experts ' panel considers that there is no causal link between the actions of the doctors at the [ GPE ] colony and Mr PERSON 's death ... Defects in the medical assistance administered to Mr PERSON at ORG and the [ prison hospital ] cumulatively resulted in the patient 's death and there is a causal link between these events . ”

On DATE charges were brought under LAW ( negligent manslaughter resulting from incompetent performance of professional duties ) against the doctors from ORG and the prison hospital .

On DATE the case against the doctors from the prison hospital was severed and referred for investigation to ORG .

On DATE the applicant asked the GPE district prosecutor to put additional questions to medical experts . In particular , she disagreed with the experts ' findings in the part exculpating the medical staff at the GPE colony . She submitted that they were to blame for the acute condition of her son 's ulcer and its ultimate perforation because all medicines had been taken away from him and he had had to pick plantain and dandelions for self - treatment . The applicant did not receive any reply to her request .

On DATE an investigator from the GPE district prosecutor 's office commissioned a supplementary medical expert examination , asking the experts to determine what medical instructions the doctors at ORG had failed to comply with .

On DATE the experts reported as follows :

“ The experts ' panel considers that the nurse O. , the internist PERSON . , the anaesthetists - resuscitators PERSON and GPE . and the head of the resuscitation and anaesthology department PERSON did not violate any provisions of their Code of Practice ... when providing medical assistance to Mr PERSON .

The surgeon ORG . did not arrange for a consultation by an internist before the surgery ; the surgery was performed with technical defects that resulted in the breakdown of sutures ; he did not call for the head of the surgery department in good time ( on DATE , i.e. DATE ) ; together with the head of department , he decided to discharge the patient , who was unfit for transportation , to another institution ; he filled in the medical documents approximately ... whereby he violated the rules governing provision of medical assistance in the field of general surgery and [ certain provisions ] of LAW of surgeons .

The head of the surgery department , ORG . , failed to monitor the surgeon ORG . 's actions ; he did not examine the patient ORG DATE ; it was his duty to control the discharge of a seriously ill patient unfit for transport ( the surgical methods were chosen incorrectly , further emergency surgery was required , a consultation with an expert in resuscitation and an internist was not organised before the discharge ) , which was in violation of [ certain provisions ] of LAW binding on heads of surgery departments .

Having regard to the above , the panel considers that the unjustified discharge of the seriously ill patient ORG , who was unfit for transportation , from ORG led to the belated provision of medical assistance , the development of complications , and death , for which the head of the surgery department is to be held liable pursuant to LAW . ”

By a decision of CARDINAL DATE the senior assistant to the GPE prosecutor refused to initiate criminal proceedings against the doctors from the prison hospital on the ground that the alleged offence had not been committed ( otsutstvie sobytiya prestupleniya ) . On the basis of statements by Doctor NORP and the deputy head of the therapy department , it was established that the medical records provided by ORG had contained no information on the surgery performed or post - operative complications , such as the breakdown of sutures . Mr ORG 's condition had been further aggravated by the conditions of his transfer in a prison van . Further surgery had not been performed immediately because an examination of the patient had been required . According to the decision , the very length of the post - operative period showed that the further surgery had been performed correctly and that the ulcerative defect which had ultimately caused the death had not been a consequence of it . On DATE the applicant received a copy of the decision .

On DATE the investigator closed the criminal case against all the other doctors from ORG and preferred criminal charges against the head of the surgery department Mr ORG . On DATE the case was set down for trial , and the applicant joined the proceedings as a civil party .

On DATE ORG of GPE acquitted PERSON . on the ground that no evidence produced by the prosecution established his guilt . In particular , the report of the medical experts of DATE had only established a causal link between the actions of the doctors at both hospitals and Mr PERSON 's death , but had not directly implicated Mr PERSON . The second report of DATE could not be relied upon because LAW was regarded as inadmissible evidence ( for unspecified reasons ) . On the basis of Mr PERSON 's testimony , the court found that PERSON ORG . could not reasonably have foreseen the patient 's death because PERSON ORG 's condition at the time of his discharge “ was improving ” and “ permitted his transport to [ the prison hospital ] ” . The judgment was silent on the outcome of the applicant 's civil claim .

Both the applicant and the prosecution appealed . The applicant claimed , in particular , that Mr ORG . had sent her son to certain death because he had authorised his discharge in a serious condition and a journey of QUANTITY in a vehicle unfit for the transportation of patients . The court did not determine her civil claim against Mr ORG . A request by the applicant for a DATE adjournment on the ground that her lawyer was engaged in the regional court was refused . The prosecution challenged the court 's decisions on admissibility and assessment of evidence .

DATE . On DATE ORG examined the appeals and upheld the acquittal , endorsing the arguments of the first - instance court .

On DATE the senior assistant to the GPE prosecutor reported to the applicant that an additional inquiry into the actions of the staff of the prison hospital had been carried out further to her complaint to ORG . It was found that Mr ORG had been kept in intensive care and had received intensive infusion and antibacterial treatment in preparation for the surgery . Therefore , no negligence could be established .

On DATE and DATE ORG told the applicant that all inquiries had been carried out in a comprehensive and objective manner and there were no grounds to quash the decisions made .

Medical in - patient record no . CARDINAL , opened for Mr PERSON on DATE at the prison hospital states :

“ Preliminary diagnosis : duodenal ulcer , recrudescence of chronic gastritis ...

DATE : discharged to the colony after improvement . Recommendations have been made ... ”

A duplicate of an unnumbered out - patient record from the GPE colony states :

“ Arrived from the [ PERSON ] without a medical record . DATE : healthy , no complaints . Stomach ulcer in the patient 's medical history . Tuberculosis specialist : healthy . Internist : healthy .

DATE , TIME ... Diagnosis : perforated duodenal ulcer . General peritonitis . PERSON shock , CARDINALnd degree . Needs urgent surgery . Medicines : ... ”

Medical in - patient record no . DATE , opened for Mr PERSON on DATE at TIME at the surgery unit of ORG states :

“ ... DATE , CARDINAL - CARDINAL.CARDINAL LOC : laparotomy . ORG ligation of ulcer . Drainage of the abdominal cavity ...

DATE , TIME Examination by the head of the department . The patient is in a serious condition due to the early post - surgery period and breakdown of sutures in the ulcer area ...

CARDINAL [ sic ] DATE : discharged for transfer to a special hospital . ”

Medical record no . CARDINAL , opened for Mr PERSON on DATE at TIME in the surgery unit of the prison hospital states :

“ ... DATE , TIME , doctor on duty . Urgent call to the resuscitation room ... The patient is in a very serious condition ... haemorrhagic shock . Resuscitation measures taken . Treatment within the hospital capacity : there is an insufficient quantity of menadione or aminocaproic acid ...

DATE , CARDINAL a.m.-CARDINAL.CARDINAL DATE Surgery no . CARDINAL : further laparotomy ...

DATE . The patient 's state is stable , with a tendency to improve ...

DATE , TIME Urgent call to the room . Intense chest pain ... At CARDINAL a.m. death is confirmed . ”

On DATE the applicant complained to the ORG that on CARDINAL and DATE ORG had formally questioned PERSON about the events described in her statement ( see paragraph CARDINAL above ) . In the applicant 's view , such conduct of the domestic authorities had clearly been intimidating for her witness .

On DATE the Government submitted their observations on the merits . They claimed , in particular , that

“ ... the applicant 's allegation that she visited Mr PERSON in the resuscitation unit of ORG ... and supposedly saw that he was handcuffed to the bed , does not correspond with the reality and misleads the ORG . According to ORG ... repeated checks have established that neither the applicant nor other persons , except for medical staff and guards , had been admitted to see PERSON ... Thus , referring to the information of ORG and ORG , ORG authorities insist that during Mr PERSON 's stay at ORG for treatment he was not handcuffed . ”

On DATE the ORG asked the Government whether Ms T. had been interviewed and , if so , what the purpose and legal basis of that interview had been . The Government were also requested to produce copies of the interview records .

On DATE the Government submitted their reply . They acknowledged that on DATE and DATE , further to a request by the ORG 's Representative before ORG dated DATE , PERSON had been summoned to the LOC district prosecutor 's office for the purpose of verifying the applicant 's complaint to ORG . The Government claimed that PERSON had not been “ questioned ” within the meaning of the domestic law but merely asked to “ provide an explanation ” in accordance with section QUANTITY of LAW . No pressure had been exerted on PERSON and the constitutional guarantee against self - incrimination had been explained to her . The Government claimed that there had been no hindrance of the applicant 's right of individual petition under LAW of the LAW .

The Government produced copies of CARDINAL printed statements signed by the deputy prosecutor of the LOC district and by PERSON The statement of CARDINAL DATE reads as follows :

“ I have known PERSON since DATE because I then dated her son ... I know that PERSON applied to ORG and I know the subject matter of her application ... PERSON did not ask me to confirm any facts which did not actually happen .

On DATE I went to ORG to see Mr PERSON at the request of his mother . He was in a separate room in the resuscitation department ... There was a uniformed police officer with a submachine gun in the same room , and CARDINAL police officers stood guard outside the room . We were let into the room in the presence of the head of department . Mr PERSON was in a serious condition ... He could speak , but with great difficulty . His left hand was attached with handcuffs to the metal rail of the bed ... I remained in the room for TIME . Several drips were connected to Mr PERSON , to his right arm ... I went only once to ORG and have not seen Mr PERSON since . ”

The statement of DATE reads as follows :

“ In reply to additional questions , I confirm that I visited Mr PERSON at ORG on DATE ... PERSON and I had come to GPE in TIME DATE but they had not let us in because PERSON ORG had just undergone surgery ... I can not say whether Mr PERSON was guarded by police . They might have been convoy officers ; I do not know their insignia . All CARDINAL of them wore green camouflage uniforms . The officer with a submachine gun , who was in Mr PERSON 's room , sometimes sat on the bed or folding bed and sometimes got up and walked about . I do not remember the appearance of the officers who stood guard outside the room but I can describe the officer who was in the room ... ”

The general provisions on liability for damage read as follows :

“ CARDINAL . Damage inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the damage ...

NORP The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his own ... ”

If criminal proceedings are discontinued at the stage of the investigation , an aggrieved person who joined the proceedings as a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that ( a ) the alleged offence had not been committed ( otsutstvie sobytiya prestupleniya ) or ( b ) the suspect had not been involved in its commission ( LAW and LAW ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) ) .

If the defendant is acquitted by the trial court on the ground that ( a ) the alleged offence was not committed or ( b ) the defendant was not involved in its commission , the trial court will dismiss the civil claim . If the defendant is acquitted on the ground that CARDINAL or more constituent elements of a criminal offence are missing ( LAW ( CARDINAL ) ) , the trial court will disallow the civil claim but it may be lodged again in civil proceedings ( LAW ) .

Section CARDINAL provides that a public prosecutor may summon officials or private persons and ask them for explanations about violations of laws .

LAW ( LAW , no . CARDINAL-I of DATE ) provides that handcuffs may be used on detainees with a view to putting an end to mass disorder or during the convoy of detainees whose conduct gives reason to believe that they might escape or harm themselves or others ( section CARDINAL ( CARDINAL ) and ( CARDINAL ) ) .

The relevant extracts from the CARDINALrd ORG [ ORG ( CARDINAL ) CARDINAL ] by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) read as follows :

“ a. Access to a doctor

... CARDINAL . A prison 's health care service should at least be able to provide regular out - patient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) . ... Further , prison doctors should be able to call upon the services of specialists . ...

Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .

The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital . ...

Whenever prisoners need to be hospitalised or examined by a specialist in a hospital , they should be transported with the promptness and in the manner required by their state of health . ”

b. Equivalence of care

A prison health care service should be able to provide medical treatment and nursing care ... in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .

There should be appropriate supervision of the pharmacy and of the distribution of medicines . Further , the preparation of medicines should always be entrusted to qualified staff ( pharmacist / nurse , etc . ) .

DATE . A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient 's evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment ... ”


The first applicant is a NORP national , born in DATE . The second applicant is an NORP national , born in DATE . The first applicant is currently resident in GPE . The second applicant is currently resident in GPE .

s , may be summarised as follows .

In DATE the applicants married in GPE , where they had established their common residence .

On DATE the applicants were arrested and subsequently remanded in custody on suspicion of attempted blackmail and arson .

On DATE ORG ( PERSON für PERSON ) convicted the applicants of attempted aggravated blackmail and arson . It found that they had in DATE and DATE threatened a food store company with poisoning its goods and setting fire to or causing explosions in its shops unless the company paid them NORP shillings ( ORG ) CARDINAL or CARDINAL , respectively . Further , they had actually set fire to a number of the company 's shops causing damage amounting to ORG CARDINAL . The court sentenced the first applicant to DATE imprisonment , of which DATE were suspended on probation , and the second applicant to DATE imprisonment of which DATE were suspended on probation . In meting out the sentence the court considered that the second applicant was the main instigator of the crime , while the first applicant had only assisted him in a minor role in carrying out his plan .

On DATE ORG ( Oberlandesgericht ) , upon ORG appeal , increased the first applicant 's sentence to DATE imprisonment and the second applicant 's sentence to DATE imprisonment . It also ordered that the sentences were not to be suspended on probation .

On DATE ORG ) , relying on section QUANTITY ( CARDINAL ) of the DATE LAW ( PERSON ) , according to which a residence ban may be issued against an alien who has been sentenced to DATE imprisonment by a final judgment of a domestic court , issued a residence ban of unlimited duration against the first applicant . It noted that she had come to GPE in DATE and that proceedings relating to her request for a residence permit were still pending . The authority acknowledged that the applicant had , despite the short duration of her stay in GPE , established close links to the country on account of her marriage with an NORP national . However , having regard to the seriousness of the offences of which she had been convicted , her interest in staying in GPE was outweighed by the public interest in the prevention of crime .

On DATE ORG ) dismissed the first applicant 's appeal . It confirmed that the residence ban constituted an interference with the first applicant 's private and family life , which was necessary for the prevention of crime and for the protection of the rights and freedoms of others . It had particular regard to the seriousness of the offences committed by the first applicant arguing that there was an evident public interest in preventing such crimes , which outweighed the serious consequences for the applicant 's private and family life .

On DATE ORG Verfassungsgerichtshof ) refused to deal with the first applicant 's complaint and referred the case to ORG ( Verwaltungsgerichtshof ) .

On DATE the first applicant was conditionally released from prison and immediately re - detained with a view to her expulsion . She was deported to GPE DATE .

On DATE ORG dismissed the first applicant 's complaint finding that the authorities had correctly weighed the different interests involved ( served on DATE ) .


Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

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

On DATE the Wrocław - Krzyki District Prosecutor charged the applicant with forgery of various documents and use of counterfeit documents . On DATE the Wrocław - Krzyki District Prosecutor issued a warrant of arrest against the applicant on suspicion of theft . On CARDINAL DATE ORG dismissed the applicant ’s appeal against the warrant of arrest .

On DATE the ORG decided to prolong the applicant ’s detention until DATE . On DATE ORG dismissed the applicant ’s appeal against this decision .

On DATE the Prosecutor charged the applicant with fraud . On DATE the ORG prolonged the applicant ’s detention until DATE . On DATE the ORG changed the charges laid against the applicant into misappropriation . On DATE the ORG prolonged the applicant ’s detention until DATE .

On DATE the ORG prolonged the applicant ’s detention until DATE . On DATE ORG dismissed the applicant ’s appeal against this decision .

On DATE the bill of indictment against the applicant was submitted to ORG . On DATE that court prolonged the applicant ’s detention for DATE . On DATE the applicant appealed against that decision , and on CARDINAL DATE completed his appeal by a request to be present at the court ’s hearing concerning a further prolongation of his detention .

On DATE the applicant requested the court to fix the date for a first hearing . On DATE ORG dismissed the applicant ’s appeal against the prolongation of detention of DATE .

On DATE at TIME the applicant requested the prison authorities to allow him to vote in the parliamentary elections , as there were voting facilities for detainees in the PERSON prison . The prison guard took him to the PERSON room . The applicant was then told by a group of CARDINAL guards that in order to be allowed to vote he must get undressed and undergo a body search . The applicant took off his clothes except his underwear , whereupon the prison guards allegedly ridiculed him , exchanged humiliating remarks about his body and abused him verbally . The applicant was ordered to strip naked . He refused to do so and repeatedly requested permission to vote without a body search . As this was refused , the applicant was taken back to his cell without being allowed to vote .

A group of other prisoners who requested permission to go to the voting room at TIME on DATE , were also ordered to undergo the body search .

On DATE the first hearing on the merits was held before ORG .

On DATE the applicant brought an action before ORG , complaining that his right to vote had been breached in that he had been prevented from voting . He submitted that the requirement to undergo a body search was unjustified as there had not been any indications in his behaviour during the entire period of his detention that he might threaten the safety of other voting prisoners or guards . He complained of humiliation by the prison guards by vulgar comments and verbal abuse in the course of the events complained of . He submitted that there were CARDINAL further guards present in the voting room . It was untenable to claim that he could present any danger to anyone when taken thereto , in particular as it had been ascertained that he could not have had any arms on him .

On DATE ORG dismissed the applicant ’s action . The court referred to a note concerning a conversation between the principal prison guard on duty on the material date and the president of the election committee in the prison , relating to the events . This note had been prepared upon a request of ORG , following the relevant enquiry of ORG for assistance in establishing the facts of the case . ORG noted that , according to the note , the prison guards had stated that the applicant could have a razor hidden on him and threaten the members of the election committee therewith . The court considered that the prison guards had been acting in conformity with LAW , which provided that " if such a need arose , a detainee should undergo a search " and with the DATE unpublished Ordinance on Prison Security , concerning , inter alia , body search of detainees . It was not certain , noted the court , whether at the material time this regulation had still remained in force , but it could not be held against the guards that they had acted according thereto . Thus it could not be established that on the part of the guards there had been intent to commit an offence , or to abuse their position . ORG concluded that the events complained of did not violate the applicant ’s voting rights .

On DATE ORG decided to release the applicant on bail of CARDINAL ( old ) zlotys . Upon the applicant ’s appeal , ORG upheld that decision on CARDINAL DATE , considering that there was no impediment to the bail being deposited in bonds or as a mortgage .

On DATE the ORG reduced the bail to CARDINAL ( old ) zlotys . On DATE the applicant requested that bail be accepted in the form of a mortgage on his property , and enclosed an estimate of his property made by an expert and an extract from the land register to the effect that he was the owner of the property concerned .

On DATE the applicant complained that ORG had failed to take any steps toward implementing its decision of DATE . He submitted that his detention after this date was unlawful , given that it should have been replaced by bail . He pointed out that he had submitted relevant documents relating to his property .

On DATE ORG ordered that the bail must be deposited in cash or in State obligations . On DATE ORG upheld this decision . On DATE ORG quashed the decision relating to the sum of bail . On DATE ORG lowered the sum of bail to CARDINAL ( old ) zlotys in cash and mortgage of CARDINAL ( old ) zlotys . On CARDINAL DATE the applicant was released .

Hearings fixed for CARDINAL DATE , DATE , DATE , DATE and CARDINAL DATE were adjourned for unknown reasons . On CARDINAL and DATE the accused were heard by the court .

Subsequently , hearings fixed for DATE , DATE , DATE , DATE and DATE were adjourned , also for unknown reasons . Next hearing was held on DATE when the court completed the questioning of the accused . Next hearing , fixed for CARDINAL DATE , was also adjourned . On DATE and DATE a hearing was held and certain witnesses were questioned . Hearing fixed for CARDINAL DATE was adjourned . At the hearings on DATE and DATE the court questioned further witnesses . Subsequently , further hearings scheduled for DATE , CARDINAL and DATE were adjourned . At the hearing on DATE further witnesses were heard . The hearing fixed for DATE was adjourned .

At the hearings held on DATE , DATE and DATE further witnesses gave evidence . Hearings scheduled for DATE , DATE , DATE and DATE were adjourned . On DATE the court took evidence from further witnesses . Hearing fixed for DATE was adjourned .

In DATE hearings were held on the following dates : DATE , CARDINAL May , DATE and DATE , DATE , DATE .

In DATE hearings were held on DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE .

The next hearing was held on DATE .

During the hearings held in DATE and DATE the court heard CARDINAL witnesses .

On DATE , at the CARDINALst hearing held during the proceedings , the composition of the court changed , and , consequently , hearings in the case had to be recommenced . On DATE and CARDINAL DATE the court read out the bill of indictment . The date of the next hearing was fixed for DATE . The proceedings are still pending .

Pursuant to LAW of DATE , in force at the material time , body search of detained persons could be ordered at any time if such a need arose . Their clothes , underwear and shoes , as well as their cells , could be searched . This provision allowed for body search in particular when detainees left their cell and upon their return thereto , in particular during TIME .

This issue was further governed by provisions of the unpublished Ordinance of the Minister of Justice of CARDINAL March CARDINAL on ORG which provided in its LAW that detainees were subject to body search when they left their ward and upon their return . The body search was to be carried out in a separate room . A detainee undergoing the search should undress , their clothes , underwear and shoes should be carefully checked .

At the relevant time , the authorities competent to decide on detention on remand were set by ORG CARDINAL and CARDINAL of LAW of DATE , which read as follows :

Article CARDINAL :

" CARDINAL . Preventive measures [ i.e. detention on remand , bail and police supervision ] shall be imposed by the court ; before a bill of indictment is lodged with the court , they shall be ordered by the prosecutor ( ... ) . "

Article CARDINAL :

" CARDINAL . A decision concerning preventive measures may be appealed [ to a higher court ] ...

A prosecutor ’s order on detention on remand may be appealed to the court competent to deal with the merits of the case .... "

Article CARDINAL of the Code of Criminal Procedure provided that detention on remand should be imposed only when it was mandatory ; this measure should not be imposed if bail or police supervision , or both of these measures , were considered adequate .

Pursuant to LAW , bail , in form of cash , securities or mortgage , could be deposited by the accused , or by another person . Determination of the sum , form and all relevant modalities of the bail should be made , regard being had to the financial situation of the accused and , as the case may be , another person depositing bail , as well as to the assessed damage which could have been caused by the offence concerned and to the character of the offence .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants are CARDINAL NORP nationals of NORP ethnic origin . Mr ORG PERSON ( the first applicant ) , was born in DATE and is detained in PERSON prison . Mr PERSON ( the second applicant ) , was born in DATE and is detained in PERSON . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON . The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

The first applicant arrived illegally in GPE from GPE on DATE . He was arrested . He disclosed his identity to NORP authorities in DATE , in the context of proceedings concerning his request for asylum . That request was dismissed by a decision which became final on DATE .

A second request for asylum lodged by the first applicant was also dismissed . The final decision on the issue was given by ORG on DATE .

In the meantime , on DATE and DATE , ORG applied for the first applicant 's extradition . The request was based on the fact that he had been accused of several offences , in particular banditry with aggravating circumstances and attempt on the life of officials of a law - enforcement agency .

The applicant was suspected of taking part , as a member of an organised group , in the killing of CARDINAL agents of ORG in ORG in DATE . In DATE the applicant with the other members of the group had allegedly forced a government official and a different person to give them a firearm , money , gold items and mobile phones .

The letters indicated that the applicant would not be tried by ORG , would enjoy the guarantees of a fair trial including the assistance of counsel , and would not be subjected to treatment contrary to LAW . As to the risk of the death penalty , the letter of DATE indicated that there was a moratorium on that penalty in GPE , that the death penalty would not be imposed on the first applicant and that capital punishment was not provided for the offences imputed to him .

On DATE ORG concluded that the first applicant 's extradition to GPE for the purpose of his criminal prosecution there was inadmissible . The decision stated that there was a risk that the applicant would be ill - treated , that he ran the risk of receiving the death penalty and that he would not be guaranteed a fair trial if extradited . Reference was made to ORG reports of DATE and DATE .

The public prosecutor appealed .

On DATE ORG overturned that decision and held that the applicant 's extradition was admissible . After examining the applicant 's situation in detail , it found no relevant factor preventing his extradition .

In particular , ORG took note of the guarantees given by ORG . As regards the risk of imposition of capital punishment , it analysed the law and practice in GPE and concluded that there existed no real risk that the death penalty would be imposed for the offences imputed to him .

As to the risk that the applicant would be ill - treated , ORG , with reference to the ORG 's practice ( in particular PERSON v. GPE [ ORG ] , no . CARDINAL , ECHR DATE ... ) and various international materials on the conflict in GPE , noted that its decision on the extradition of a particular person for the purpose of his criminal prosecution could not be exclusively based on the political situation existing in a part of GPE and the fact that the ORG 's actions in that respect had been subjected to international criticism . The decision further stated that GPE was a member ORG and a ORG to the Convention . All persons within its jurisdiction were therefore entitled to seek redress before the ORG as regards alleged breach of their LAW rights by the NORP authorities .

As to the witness PERSON ( see point CARDINAL below ) , whose statements had given rise to the applicant 's prosecution , his alleged ill - treatment was not proof that the applicant would be subjected to treatment incompatible with LAW .

ORG also held that a possible failure by NORP authorities to comply with the guarantees issued by them would undermine the trust of its partners and affect further processing of similar requests .

A refusal to extradite the first applicant would affect the rights of other persons , in particular the relatives of the officers who had been killed , who were entitled to have an effective investigation carried out .

The applicant lodged a constitutional complaint . ORG , to which the case fell to be examined , had a different opinion on the issue from that which ORG had expressed in its decision of DATE in the case of the second applicant ( see point CARDINAL below ) . It therefore submitted the matter to the plenary meeting of ORG with a view to harmonising the positions .

In decision PLz ÚS CARDINAL/CARDINAL of DATE ORG ( plenary meeting ) did not accept the proposal by its Fourth ORG to depart from the conclusion which ORG had reached on DATE .

On DATE ORG Fourth Chamber ) decided that ORG had violated the first applicant 's right under LAW by allowing his extradition to GPE . The case was returned to ORG . In its decision ORG ) stated that it did not , in principle , object to the way in which ORG had proceeded . However , there was a need for the case to be examined in the light of the most recent case - law of ORG and all available information . The trustworthiness of the guarantees offered by GPE had also to be addressed in more detail . Reference was made to the fact that the ORG had issued an interim measure in the case .

In an opinion of CARDINAL DATE ORG ( plenary meeting ) noted that in the above decision FAC had disregarded decision PLz ÚS CARDINAL/CARDINAL of DATE .

On DATE ORG again found that the applicant 's extradition to GPE for the purpose of his criminal prosecution there was admissible .

In its decision ORG analysed the first applicant 's case in the light of the ORG 's reasoning in the cases of ORG and Others v. GPE and GPE ( no . CARDINAL/CARDINAL , ORG CARDINALIII ) , and PERSON v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) . It also had regard to other cases , such as GPE and Others v. GPE ( DATE , Series A no . CARDINAL ) ; ORG v. GPE ( no . CARDINAL , ORG CARDINALI ) ; PERSON and Others v. GPE ( no . CARDINAL , DATE ) ; and Estamirov and Others v. GPE ( no . CARDINAL , DATE ) .

ORG held that various data available internationally containing general information about the use of violence by NORP armed forces against the civilian population of GPE did not prove the existence of a specific risk that the first applicant would be ill - treated if extradited . The applicant himself had not provided any specific information about himself permitting a different conclusion .

With reference to the reasons set out in its decision of DATE ORG again concluded that the guarantees offered by the NORP authorities were sufficient and that it had not been established that the applicant ran a real risk of treatment contrary to LAW . ORG also invoked ORG ) decision of DATE in the case of the second applicant with the same factual background , and decision PLz ÚS CARDINAL/CARDINAL in which ORG at its plenary meeting had refused to depart from that decision .

On DATE the first applicant lodged a complaint with ORG . He relied on LAW and CARDINAL of the LAW , on an ORG interim recommendation concerning international protection of persons of NORP origin and on a ORG report issued on DATE ( see point CARDINAL below ) . He argued that ORG had disregarded ORG order that his case should be examined in the light of the ORG 's practice , that he would be subjected to inhuman and degrading treatment and that he would not enjoy the guarantees of a fair trial in case of his extradition . As to the last point , he asserted that the principal witness in the criminal proceedings had given a statement against him under torture .

On DATE ORG ( First Chamber ) rejected the complaint as manifestly ill - founded . It found that ORG had duly considered the relevant facts and law , including the practice of the ORG . ORG accepted ORG conclusion according to which it had not been established that the guarantees offered by the NORP authorities were not trustworthy and that the applicant ran a real risk of treatment contrary to LAW in case of his extradition . Finally , ORG held that it lacked the power to address the fairness of criminal proceedings which were pending before the NORP authorities .

In a letter of CARDINAL DATE addressed to the NORP authorities the Deputy Prosecutor General of GPE confirmed the guarantees previously given with regard to the first applicant , including respect for his physical and psychological integrity . The letter indicated that , in case of his conviction and imposition of a prison term , the second applicant would serve his sentence in a federal prison , where the LAW and the NORP Standard Minimum Rules for the Treatment of Prisoners are taken into account . ORG to GPE would be informed of the place of the applicant 's detention and NORP diplomatic representatives would be able to visit the first applicant and speak to him without third parties present . The applicant would be provided with sufficient medical care . It was guaranteed that capital punishment would not be applied in respect of the first applicant . Finally , ORG Russian Federation guaranteed that the first applicant would not be prosecuted for his political views or because of his race , religion or nationality .

The second applicant was arrested by NORP border police on DATE . He had no valid travel document and gave his name as PERSON .

On DATE the second applicant applied for asylum in GPE . His request was ultimately dismissed . The final decision was given by ORG on DATE . The decision became final on CARDINAL DATE .

In the meantime , in DATE , the identity of the second applicant was established .

On DATE ORG applied for the second applicant 's extradition . The request was based on the fact that he had been accused of several offences , namely banditry with aggravating circumstances and attempt on the life of officials of a law - enforcement agency . The applicant was suspected of having participated , as a member of an organised group , in the killing of CARDINAL agents of ORG in ORG in DATE .

The above letter and another letter from ORG dated DATE indicated that the applicant would not be tried by ORG , would enjoy the guarantees of a fair trial including the assistance of counsel and that he would not be subjected to treatment contrary to LAW . As to the risk of the death penalty , the letters indicated that there was a moratorium on the death penalty in GPE , that the applicant would not face the death penalty if extradited and that , should the applicant be sentenced to death , the sentence would not be carried out . Reference was made to the fact that GPE had signed LAW No . CARDINAL to the LAW and that under LAW and CARDINAL of LAW on GPE of DATE it had an obligation not to use the death penalty .

The second applicant was placed in preliminary detention with effect from DATE . On DATE the ORG remanded him in custody pending extradition . ORG dismissed the applicant 's complaint against that decision on DATE .

On DATE the ORG found inadmissible the applicant 's extradition to GPE .

On DATE ORG overturned that decision and held that the second applicant 's extradition was admissible . ORG , with reference to documents available , established that the applicant had been involved , as a member of an organised group , in the killing of CARDINAL NORP servicemen in PERSON in DATE . That killing had taken place after the military conflict had ended and it was not therefore an exclusively political or military action within the meaning of the relevant provision of the NORP Code of Criminal Procedure , which prevented the extradition of foreigners in such cases . ORG further noted that GPE was a member ORG and that respect for human rights was permanently monitored .

Finally , ORG considered sufficient the guarantees offered by ORG , which stated that the applicant would not face the death penalty and that such punishment was in any event not carried out in GPE , that he would not be tried by a ORG as well as the undertaking that ORG and CARDINAL of the ORG would be respected in his case .

On DATE the second applicant lodged a complaint with ORG . He relied on LAW . The applicant referred to various reports on the situation in prisons in GPE . In particular , he invoked reports on treatment to which persons of NORP origin suspected of fighting against NORP authorities were subjected . He also invoked the fact that the death penalty had not been formally abolished in GPE .

On DATE ORG ) dismissed the complaint as being manifestly ill - founded . It relied on the reasoning of ORG which it considered relevant and sufficient from the point of view of protecting the applicant 's rights under LAW .

In a letter of CARDINAL DATE addressed to the NORP authorities the Deputy Prosecutor General of GPE confirmed the guarantees previously given with regard to the second applicant , including respect for his physical and psychological integrity . The letter indicated that , if he was convicted and given a prison sentence , the second applicant would serve his sentence in a federal prison , where the LAW and the NORP Standard Minimum Rules for the Treatment of Prisoners are taken into account . ORG to GPE would be informed of the place of the second applicant 's detention and NORP diplomatic representatives would be able to visit the second applicant and speak to him without the presence of third persons . The second applicant would be provided with sufficient medical care . It was guaranteed that capital punishment would not be applied in respect of the second applicant . Finally , ORG Russian Federation guaranteed that the second applicant would not be prosecuted for his political views or because of his race , religion or nationality .

The applicants maintained that criminal proceedings against them had been instituted on the basis of statements of PERSON , which had been extracted under torture .

Mr PERSON , while being questioned in GPE on DATE , had admitted involvement in a number of offences which he had committed as a member of an organised group . Among those offences reference was made to the killing of CARDINAL members of the special units of ORG . Those persons had been shot after members of the group had stopped their car on a road . Mr PERSON indicated the applicants as having been among the accomplices .

Subsequently Mr PERSON , with the assistance of an advocate , lodged a criminal complaint , arguing that his defence rights had been infringed after his extradition from GPE and that he had been subjected to treatment incompatible with LAW while he was being questioned and detained in GPE . The complaint was dismissed by the prosecuting authorities . On DATE ORG of ORG quashed the above decision to dismiss Mr PERSON 's criminal complaint . The court noted that the prosecuting authorities had not examined all the relevant facts and that the origin of several documented injuries sustained by Mr PERSON had not been established . The court ordered the prosecutor to review the decision to dismiss Mr PERSON 's criminal complaint .

In DATE Mr PERSON lodged an application with the ORG . The proceedings are pending ( application no . CARDINAL/CARDINAL ) .

In their observations of CARDINAL DATE the applicants referred to the case of Mr PERSON who had unsuccessfully applied for asylum in GPE in DATE . The applicants submitted that , after his expulsion , Mr PERSON had spent DATE in a prison in GPE and that he had been tortured and ill - treated . Subsequently he had been transferred to the GPE detention facility in PERSON , where he had been repeatedly tortured . With the help of his relatives and the payment of a ransom he received a conditional prison term only and was released .

The applicants indicated that they would submit a written statement by Mr PERSON , together with the relevant medical reports .

No such documents have been submitted .

In the above case Rule DATE was applied in the Third Section of the Court to suspend the NORP applicant 's extradition to GPE , where he faced criminal charges . That measure was lifted following the receipt of assurances by ORG that the applicant would not be condemned to the death penalty or to an irreducible life sentence , or detained in conditions which were contrary to LAW . There was also a guarantee that monitoring of compliance with that guarantee was to be ensured through the NORP diplomatic representation in GPE .

ORG ) declared the application inadmissible on CARDINAL DATE .

According to a press release by ORG of DATE , PERSON , accused of taking part in an attack on government buildings in ORG in DATE , had been released by the NORP authorities without charge on DATE , after DATE in pre - trial detention . The press release further stated that “ according to PERSON , he was tortured for DATE and then released without charge ” .

According to third - party comments by the Government of GPE , the criminal proceedings against Mr PERSON had ended following an amnesty . Such action was permissible under the NORP law subject to admission of guilt by the accused person .

Before ORG the applicants relied , inter alia , on a press release by ORG of DATE entitled “ GPE : Prosecute Rights Violations in LOC ” . In it reference is made to the fact that the ORG adopted CARDINAL judgments holding GPE responsible for serious violations of human rights in GPE . ORG , ORG and the NORP ORG called on the NORP government to ratify LAW No . DATE , to re - open investigations in those cases where the ORG had concluded that prior investigations were inadequate , to undertake a thorough review and revision of domestic legislation and regulations regarding the use of force by military or security forces to ensure their compliance with human rights law and to carry out an in - depth inquiry into the conduct of investigations of abuses committed by military servicemen , police , and intelligence officials and other forces in GPE .