Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in NORP ( Canton of Solothurn ) .

The applicant has been suffering from a serious bipolar affective disorder for DATE . During this period he has twice attempted suicide and has stayed in psychiatric hospitals on several occasions . On DATE he became a member of ORG , an association which offers , among other services , assisted suicide . Taking the view that his illness , for which treatment is difficult , made it impossible for him to live with dignity , the applicant asked ORG to assist him in ending his life . He approached several psychiatrists to obtain the necessary lethal substance , namely CARDINAL grams of sodium pentobarbital , which is available only on prescription , but was unsuccessful .

On DATE the applicant contacted various official bodies seeking permission to obtain sodium pentobarbital from a pharmacy without a prescription , through the intermediary of GPE .

ORG found that it did not have jurisdiction to grant his request and rejected it on DATE .

On DATE ORG dismissed the applicant ’s claim on the ground that sodium pentobarbital could only be obtained on prescription from a pharmacy . It also expressed its opinion that LAW did not impose on the States Parties a positive obligation to create the conditions for committing suicide without the risk of failure and without pain .

On DATE ORG of the GPE of GPE also dismissed the applicant ’s request , finding that , in the absence of the necessary medical prescription , he could not be authorised to obtain the substance in question from a pharmacy . It too noted that such a right could not be inferred from LAW . That decision was upheld by ORG GPE of GPE on DATE .

On DATE ORG of the ORG declared inadmissible an appeal lodged by the applicant against the decision of DATE , on the ground that this was not an emergency in which a substance usually subject to medical prescription could be delivered without CARDINAL . It noted that only a doctor could issue the relevant prescription .

The applicant lodged appeals with ORG against the decisions of ORG of the ORG and ORG of the GPE of GPE . Relying in particular on LAW , he alleged that this provision guaranteed the right to choose to die and that ORG interference with this right was acceptable only in the conditions set out in the second paragraph of LAW . In the applicant ’s opinion , the obligation to submit a medical prescription in order to obtain the substance necessary for suicide , and the impossibility of procuring such a prescription – which , in his view , was attributable to the threat that hung over doctors of having their licence withdrawn by the authorities should they prescribe the substance in question to mentally ill persons DATE amounted to interference with his right to respect for his private life . He argued that while this interference was admittedly in accordance with the law and pursued a legitimate aim , it was not , in his case , proportionate .

By a judgment of DATE , ORG joined the CARDINAL sets of proceedings and dismissed the applicant ’s appeals .

It noted , firstly , that , pursuant to the applicable legal provisions , sodium pentobarbital could only be obtained on medical prescription and that the applicant had not obtained such a prescription . It further noted that this was not an exceptional case in which a medical product could be issued without a prescription .

As to the alleged violation of LAW , ORG found as follows :

[ Translation ]

“ CARDINAL . ... The right to self - determination within the meaning of LAW [ of the LAW ] includes the right of an individual to decide at what point and in what manner he or she will die , at least where he or she is capable of freely reaching a decision in that respect and of acting accordingly ...

CARDINAL.CARDINAL.CARDINAL . The right to choose to die , which is not as such in issue here , must however be distinguished from the right to assistance with suicide from the ORG or a third party . In principle , such a right can not be inferred either from DATE , paragraph CARDINAL , of LAW [ enshrining individual freedom ] or from LAW ; an individual who wishes to die does not have a right to be assisted in committing suicide , whether by the provision of the necessary means or through active assistance where he or she is not capable of ending his or her own life ... The ORG has a fundamental obligation to protect life . Admittedly , such protection is not generally extended against the will of a person who is capable of forming his or her own views ... Nonetheless , it does not follow that the ORG has a positive obligation to ensure that a person who wishes to die has access to a dangerous substance , selected for the purpose of suicide , or to tools intended to be used for that purpose . In such circumstances , the right to life guaranteed by LAW obliges the ORG , at the very least , to put in place a procedure to ensure that a decision to commit suicide does indeed correspond to the free will of the individual in question ...

The foregoing is confirmed by the case - law of the GPE institutions : Article CARDINAL [ of the Convention ] guarantees no right to die , whether with the assistance of a third party or of the ORG ; the right to life has no corresponding negative freedom ( judgment in Pretty v. GPE , no . CARDINAL , § DATE , ECHR CARDINALIII ) ... Article CARDINAL does not in principle oblige the ORG to guarantee criminal impunity for assisting a person to commit suicide or to create a legal basis for another form of assistance with that act ; the ORG must not sanction actions intended to terminate life ( Pretty , cited above , § § CARDINAL et seq . ) . With regard to LAW , the ORG found DATE without in any way negating the principle of sanctity of life – the quality of life and , in consequence , the question of the individual ’s autonomy play a role under this provision ( judgment in Pretty , cited above , § CARDINAL ) . The ORG stated that it ‘ [ was not prepared ] to PERSON that the fact that the applicant was precluded from exercising her choice to avoid what she consider[ed would ] be an undignified and distressing end to her life constituted an interference with her right to respect for private life within the meaning of LAW , cited above , LAW ; see also the judgment of ORG in the case of PERSON v. GPE [ Attorney General ; [ DATE ] CARDINAL S.C.R. CARDINAL ] , and Judge PERSON ’s opinion as the basis of the majority ’s findings ) ; this had already been presaged in the DATE PERSON case , where the Commission had emphasised that the activity of a person aiding and abetting suicide did not , as such , fall within the sphere of Article CARDINAL , but that , on the contrary , the protection of the private life of the person seeking to die could be at stake ( inadmissibility decision in PERSON v. GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , ORG and Reports CARDINAL , p. CARDINAL , § CARDINAL ) .

CARDINAL.CARDINAL.CARDINAL . The case of Pretty ( like that of PERSON ) is not comparable to the instant case : the applicant ’s freedom to commit suicide , and consequently the impunity of an individual who might provide assistance to that end , providing he or she is not acting from selfish motives ( Article CARDINAL of LAW ) , are not in issue here . The matter in dispute is whether , on the basis of LAW must take steps to ensure that the applicant is able to end his life without pain and without risk of failure , and that , in consequence , he is able to obtain sodium pentobarbital without a medical prescription , in derogation from the legislation . This question must be answered in the negative : admittedly , the ORG guarantees not rights that are theoretical or illusory but rights that are practical and effective ( judgment in PERSON v. GPE , CARDINAL DATE , § CARDINAL , Series A no . CARDINAL ) ; it does not appear , however , DATE given that other options exist – that the freedom to commit suicide and , accordingly , the freedom to choose one ’s own quality of life are restricted by the mere fact that the ORG does not authorise the unconditional issue of the substance in question , but makes it dependent on the presentation of a medical prescription , issued on the basis of the ‘ recognised rules of pharmaceutical and medical science’ and knowledge of the health of the individual concerned ( section CARDINAL(CARDINAL)(a ) taken in conjunction with section CARDINAL of the LPTh [ ORG ] , and section CARDINAL ) , taken in conjunction with section CARDINAL , of the Lstup [ LAW ] ) . In order to guarantee effectively the freedom to choose to end one ’s own life , derived from LAW , it is not necessary to authorise unrestricted availability of sodium pentobarbital , even if this substance is supposedly highly suitable for the act of committing suicide . The mere fact that solutions other than sodium pentobarbital entail higher risks of failure and greater pain is not sufficient to justify the provision , without prescription , of this substance for the purpose of suicide . Such a positive obligation can not be inferred either from LAW or from LAW ...

The obligation to submit a medical prescription has a clear , accessible and foreseeable legal basis , namely , in respect of domestic law , sections CARDINAL and CARDINAL of ORG and sections CARDINAL and CARDINAL ) [ sic ] of LAW , and , with regard to international law , LAW of the [ ORG Substances of CARDINAL DATE . Generally speaking , this obligation is intended to protect the health and safety of the population and , in the context of assisted suicide , to prevent the commission of criminal offences and combat the risks of abuse ( Pretty judgment , cited above , § § DATE and DATE ... ) . A substance ; in the patient ’s interests , provision of such a substance must be subject to the presentation of a medical prescription . A medical prescription presupposes a diagnosis drawn up on the basis of a doctor ’s professional code of ethics , a medical indication ( GPE ) and an information - seeking interview . Only a doctor can assess a patient ’s capacity for discernment and his or her medical records , and determine whether all treatment options have been exhausted to no avail ... The obligation to obtain a prescription for sodium pentobarbital is a guarantee that doctors will not issue this substance without all the necessary conditions being fulfilled , since otherwise they would leave themselves open to criminal , civil or disciplinary sanctions ... It protects individuals from hasty and unconsidered decisions ... and guarantees the existence of a medical justification for the action . ... A potential interference with the right to self - determination protected by LAW has only a relative bearing in view of the consequences attached to issuing sodium pentobarbital for the purpose of suicide . ... In contrast , the protection of life , the prohibition of murder and the latter ’s delimitation with regard to assisted suicide , which is not a priori subject to penalties , represent a significant public interest . ... While assisted suicide by medical means is authorised , a matter that , given the importance of the ethical issue at stake , must in the first instance be assessed by the legislature ( see the above - cited Pretty judgment , § CARDINAL in fine ) , the ORG is entitled to put in place a procedure for review , thus guaranteeing that the decision of the individual concerned does indeed correspond to his or her free and considered will ... ; to that end , the obligation to obtain a medical prescription is appropriate and necessary . In so far as the applicant alleges that this argument does not take into consideration the CARDINAL cases of suicide and the CARDINAL cases of attempted suicide per year , in which the ORG allegedly fails to comply with its duty of protection , it must be emphasised that those cases do not , as the instant case does , concern the question of dispensing , without prescription , a substance for the purpose of suicide and are thus not comparable to the present situation .

CARDINAL.CARDINAL.CARDINAL . The regulations on assisted suicide are relatively liberal in GPE , in so far as assistance or incitement is punishable only in the event of selfish motives ( Article CARDINAL of LAW ) . In contrast , the legislature remains free , in weighing up the interests at stake – the right to self - determination of persons wishing to kill themselves on the one hand , and protection against impulsive suicides ( GPE ) on the other – to make the legality of assisted suicide and the provision of a dangerous product subject to compliance with professional rules and the state of medical science . LAW issued by ORG on DATE acknowledge that , in borderline cases , a doctor may be faced with an ‘ intractable ORG ( point CARDINAL of the Guidelines ) . Clearly , assisted suicide can not be considered as part of a doctor ’s activities , since it is self - evident that such an action goes against the aim of medicine ; however , respect for the patient ’s wishes is also fundamental to the relationship between the doctor and patient , so that the doctor may be led to take a decision in all conscience , a decision that ought to be respected . If the doctor opts for assisted suicide , he is guarantor of the fact that : ( CARDINAL ) the patient ’s illness makes it likely that death is close ; ( CARDINAL ) other options for support have been discussed and , where appropriate , put into place ; and ( CARDINAL ) the patient is capable of discernment , his or her wish appears to be carefully considered , is not the result of external pressure and is to be regarded as final , which must be verified by an independent third party who need not necessarily be a doctor ; the final act which leads to death must always be carried out by the patient himself . Contrary to the applicant ’s assertions , a doctor is entitled , in the context of the recognised professional rules , to prescribe sodium pentobarbital for the purpose of suicide , provided that the conditions for doing so are fulfilled . As ORG has already observed , a change in attitude is to be perceived in modern society , in the sense that assisted suicide is increasingly considered as a voluntary medical activity which can not be imposed on any doctor , but which is not excluded by the rules of professional conduct and supervision , provided that the duty of medical care is respected in examining patients , diagnosing them and dispensing the product ( judgment CARDINAL of CARDINAL DATE , paragraph CARDINAL , with references ) , and provided that doctors do not allow themselves to be guided solely by their patient ’s wish to die and fail to examine the reasons for such a decision in accordance with the applicable scientific criteria ...

CARDINAL.CARDINAL.CARDINAL . NORP The question of prescribing and dispensing sodium pentobarbital is particularly problematic in cases of mental illness :

It must not be forgotten that a serious , incurable and chronic mental illness may , in the same way as a somatic illness , cause suffering such that , over time , the patient concludes that his or her life is no longer worth living . The most recent ethical , legal and medical opinions indicate that in such cases also the prescription of sodium pentobarbital is not necessarily precluded or to be excluded on the ground that it would represent a breach of the doctor ’s duty of care ... However , the greatest restraint must be exercised : it is necessary to distinguish between a desire to die as the expression of a psychological disorder which can and must be treated , and a wish to die that is based on the considered and sustained decision of a person capable of discernment ( ‘ pre - suicide assessment’ ) , which must be respected as applicable . Where the wish to die is based on an autonomous and all - embracing decision , it is not prohibited to prescribe sodium pentobarbital to a person suffering from a psychiatric illness and , consequently , to assist him or her in committing suicide ...

The question of whether the conditions have been met in a given case can not be examined without recourse to specialised medical DATE and particularly psychiatric – knowledge , which is difficult in practice ; a thorough psychiatric examination thus becomes necessary ... , which can only be guaranteed if the obligation to submit a prescription in order to obtain sodium pentobarbital is maintained , and if responsibility does not lie solely with private organisations for assisted suicide . The activities of such organisations have been criticised on several occasions ; a study carried out in GPE , analysing CARDINAL cases of assisted suicide by the organisation ORG DATE , rightly criticised the failure to take into account psychiatric or social factors in the decision to end one ’s life ... Accordingly , one can not argue that issuing sodium pentobarbital and delegating responsibility for its use to an organisation for assisted suicide is equally compatible with the purpose of the legislation as maintaining the obligation to obtain a medical prescription .

To conclude , it is appropriate to note that DATE contrary to the applicant ’s allegations – neither LAW ... impose an obligation on the ORG to issue , without medical prescription , sodium pentobarbital to organisations for assisted suicide or to persons who wish to end their lives . The requirement of a medical prescription for sodium pentobarbital has a legal basis , is intended to protect public safety and health and to maintain order in the public interest , and is also a proportionate and necessary measure in a NORP society . In weighing up the interests at stake , namely the protection of life DATE which requires ( as a minimum ) verification , on a case - by - case basis , of whether NORP decisions to end their lives genuinely correspond to their free and considered will where they opt for assisted suicide using a product subject to legislation on drugs or medicinal products DATE , and the individual ’s right to self - determination , the ORG remains free – from the standpoint of constitutional law or of the Convention – to lay down certain conditions and , in this context , to maintain , inter alia , the obligation to obtain a prescription for sodium pentobarbital . The ( summary ) medical documents submitted [ by the applicant ] alter nothing in his case ; the delivery of a substance for the purpose of assisted suicide necessitates , in his case too , a thorough and considered examination and a medical indication , and , with regard to the genuineness of his wish to die and capacity for discernment in this connection , monitoring over a certain period by a medical specialist who would subsequently be able , as appropriate , to issue a medical prescription ; in contrast , in the context of the present case [ the applicant ] can not receive such a prescription by requesting that the obligation to present a prescription be lifted ; for this reason , the explanations with regard to his capacity for discernment do not appear relevant ( Pretty judgment , cited above , § § CARDINAL - CARDINAL ) ... ”

On DATE the applicant sent a letter to CARDINAL psychiatrists , almost all of whom , according to the information available to the ORG , practise in the GPE region . He asked each of them whether they would agree to see him for the purpose of carrying out a psychiatric examination and with a view to issuing a prescription for sodium pentobarbital . The letter was worded as follows :

[ Translation ]

“ Dear Sir / Madam ,

Please find attached a copy of a ORG judgment in my case . I had asked ORG to be granted direct access to sodium pentobarbital so that , with the help of GPE , I could commit assisted suicide without risk of failure and without pain . Admittedly , ORG has accepted that the right to choose the time and manner of one ’s death is a human right . At the same time , it has held that direct access to sodium pentobarbital is impossible , since a medical prescription is necessary in order to obtain the said product .

Given that I suffer from mental illness , ORG also stated that a preliminary in - depth psychiatric examination was also necessary ( p. CARDINAL , paragraph ORG . ) . This should determine whether my wish to die is the expression of a psychological disorder that is open to treatment or whether it results from an autonomous , considered and sustained decision by a person who is capable of discernment ( see also p. CARDINAL , paragraph CARDINAL . ) .

I hereby ask whether you would be willing to accept me as a patient , for the sole purpose of conducting such an assessment .

In addition , I draw your attention to the fact that I am unlikely to commit suicide at present ; I have not taken neuroleptics since DATE . ”

None of the doctors responded positively to his request . Some refused on the ground of lack of time and/or the necessary competence , or for ethical reasons . Others argued that the applicant ’s illness could be treated .

The relevant provisions of LAW are worded as follows :

LAW Homicide at the victim ’s request

“ Any person who for commendable motives , and in particular out of compassion , causes the death of a person at that person ’s own genuine and insistent request shall be liable to a custodial sentence not exceeding DATE or to a monetary penalty . ”

Article DATE Inciting and assisting suicide

“ Any person who for selfish motives incites or assists another to commit or attempt to commit suicide shall , if that other person thereafter commits or attempts to commit suicide , be liable to a custodial sentence not exceeding DATE or to a monetary penalty . ”

LAW ( Lstup ) ( “ LAW ” ) of DATE regulates the use and supervision of drugs . ORG ( LPTh ) ( “ LAW ” ) of DATE applies to drugs covered by LAW where they are used as therapeutic products ( section CARDINAL(CARDINAL)(b ) of LAW ) . LAW remains applicable , however , if LAW does not regulate a specific matter or if its regulation is less extensive ( section CARDINAL(CARDINAL bis ) of LAW ) .

NORP Under CARDINAL of LAW and LAW of DATE issued by ORG , sodium pentobarbital is considered to be a drug within the meaning of LAW . Moreover , it appears from ORG judgment of DATE that sodium pentobarbital is categorised as a “ category B ” medicinal product within the meaning of LAW .

In addition , sodium pentobarbital is listed in Schedule III of LAW of DATE . Under that Convention , it may be issued for individual use only on the basis of a medical prescription .

Section CARDINAL of LAW lists the members of the medical profession who may obtain drugs without authorisation . Section CARDINAL(CARDINAL ) is worded as follows :

“ Doctors , dentists , veterinary surgeons and those managing a public or hospital pharmacy who practise as self - employed professionals by virtue of a decision of the cantonal authorities adopted pursuant to LAW of DATE on the practice of the professions of doctor , pharmacist and veterinary surgeon in ORG , may obtain , hold , use and issue drugs without authorisation , within the limits justified by the practice , in conformity with the requirements , of their profession . This shall be without prejudice to the cantonal provisions regulating direct dispensing by doctors and veterinary surgeons ... ”

Pursuant to section CARDINAL ) of the same LAW , only doctors and veterinary surgeons are authorised to prescribe drugs :

“ The doctors and veterinary surgeons who fall under the scope of section CARDINAL shall be authorised to prescribe drugs .

Doctors and veterinary surgeons may write such prescriptions only in so far as this is medically acceptable and only for patients whom they have examined personally ( section CARDINAL(CARDINAL ) of the same LAW , and LAW of DATE ) .

Sections CARDINAL and CARDINAL of LAW are worded as follows :

Section DATE Issuing of medicinal products subject to a prescription

“ The following persons shall be authorised to issue medicinal products that are subject to a prescription :

( a ) pharmacists , on a medical prescription , and , where justified in exceptional cases , without a medical prescription ;

( b ) any other person exercising a medical profession , in accordance with the provisions on dispensing physicians ;

( c ) any duly trained professional , under the supervision of a person who comes under the scope of paragraphs ( a ) and ( b ) .

Section CARDINAL – Principle of prescription and issue

“ The recognised rules of pharmaceutical and medical science shall be respected in the prescription and issuing of medicines .

A medicinal product may be prescribed only where the state of health of the consumer or patient is known . ”

Chapter CARDINAL of the same Act contains criminal - law provisions targeting persons who intentionally endanger the health of another person in relation to an activity covered by LAW . LAW provides :

Section DATE Offences

“ Anyone who intentionally endangers human life shall be liable to imprisonment or a fine of MONEY , unless he or she has committed a more serious offence within the meaning of LAW or of LAW of DATE , if he or she :

( a ) neglects the duty of care when carrying out an operation related to therapeutic products ;

( b ) manufactures , places on the market , prescribes , imports or exports medicinal products or trades in them abroad without authorisation or in infringement of other provisions of this LAW ;

( c ) NORP issues therapeutic products without authorisation to do so ;

( f ) neglects his or her obligation to ensure the upkeep of medical devices ;

Where the perpetrator is acting in a professional capacity , the term of imprisonment shall be for DATE and the fine shall be MONEY .

Where the perpetrator acts through negligence , the term of imprisonment shall be DATE or the fine up to MONEY . ”

In its judgments DATE and CARDINAL of DATE , ORG upheld the conviction and sentencing to DATE imprisonment of a psychiatrist on the ground that the latter , who had assisted his patient to commit suicide , had incorrectly assessed the patient ’s capacity for discernment .

NORP The research conducted by the Court indicates that certain member ORG have specific regulations covering access to substances liable to facilitate suicide .

In GPE , for example , the Law of DATE defines euthanasia as an act carried out by a third party which intentionally ends an individual ’s life at the latter ’s request ( section CARDINAL of the PERSON ) . A pharmacist who issues a “ lethal substance ” does not commit an offence where this is done on the basis of a prescription in which the doctor explicitly states that he or she is acting in accordance with the law . The implementing regulations establish the criteria of prudence and the conditions which must be met for the prescription and issue of such medicines ; the necessary measures must also be taken to ensure the availability of the lethal substances .

In GPE , the PERSON of DATE decriminalised euthanasia and assisted suicide . Under that PERSON , access to a medicine enabling suicide is legally possible for a doctor only if he or she plays an integral part in the process of euthanasia or assisted suicide .


The applicant is an NORP national , born in DATE and living in Hard .

He is represented before the ORG by PERSON , a lawyer practising in GPE .

A. PARTICULAR CIRCUMSTANCES OF THE CASE

In DATE the applicant concluded with PERSON a contract for the purchase of a plot of land situated in the PERSON region .

On DATE the applicant , represented by counsel , filed a request with ORG ( Grundverkehrs - Landeskommission ) to approve the acquisition of the plot of land by the above sales contract .

On DATE ORG , referring in particular to sections CARDINAL ) and CARDINAL ) of the DATE ORG ( Grundverkehrsgesetz ) , as amended in DATE , refused the approval . It found in particular that the plot of land formed part of the “ Maisäss ” ( an alpine pasture at middle elevation up to CARDINAL m ) Zafern no . CARDINAL . The cottage on this plot , which the applicant had meanwhile renovated and transformed into a secondary residence , formed an important part of this pasture , even if it was not used for agricultural purposes . It was not in the interests of efficient peasantry and sound agricultural estates to split up this farming entity .

On DATE ORG ( PERSON ) , following an oral hearing on DATE in the presence of the applicant ’s counsel , dismissed the applicant ’s appeal . In its decision the ORG noted his appeal submissions , in particular his assertion that he had not known about the necessity of approval under LAW . The ORG considered that it was not credible that the vendor of the plot of land , then mayor of PERSON , had ignored the legal situation when drawing up the written contract in DATE . It rather appeared that the contract had been concluded in DATE in order to circumvent LAW , and that the reconstruction work had been carried out by the applicant in order to obtain approval , the cottage having been changed so as to remove any sign of its previous agricultural use . These measures contravened the general interest in maintaining an efficient peasantry and an economically sound structure for small and middle size farming entities .

On DATE the applicant lodged a complaint with ORG ) . He complained about a violation of his right to be heard by a legally competent court ( gesetzlicher Richter ) , claiming that the real transaction authorities lacked competence as LAW did not apply to the plot of land in question . He further complained that the decision of ORG was arbitrary in presuming an intention to circumvent the provisions of LAW .

On DATE ORG dismissed the applicant 's complaint . ORG observed at the outset that in accordance with the transitional provisions of the DATE LAW , which had entered into force in DATE , the DATE Act continued to apply to pending proceedings . As regards the competence of the real estate transactions authorities , ORG noted that when the applicant had acquired the plot of land in DATE , it had been an agricultural estate as there had been a “ LOC cottage on it . Such cottages served farmers inter alia in DATE and DATE for feeding purposes before and after the periods spent on the high alpine pastures . ORG had convincingly reasoned that the reconstruction of the cottage as a secondary residence had changed the initial purpose of the plot of land , and that such action served to circumvent the legal rules . In this context , the question of intent was irrelevant , it was sufficient that , objectively seen , there was such a circumvention . On the whole , there was no appearance of arbitrariness .

The decision was served on DATE .


ORG The applicant is a NORP citizen , born in DATE , and lives in GPE .

ORG The applicant married his wife on CARDINAL DATE . They had CARDINAL son , who was born in DATE . On DATE the couple were separated for a period of DATE before becoming reconciled .

ORG On DATE , as a result of further matrimonial difficulties , his wife left the matrimonial home with their son and returned to live with her parents . She had by this time already consulted solicitors regarding her matrimonial affairs and had left a letter for the applicant in which she informed him that she intended to petition for divorce . However no legal proceedings had been taken by her before the occurrence of the incident which gave rise to criminal proceedings . The applicant had on DATE spoken to his wife by telephone indicating that it was his intention also to " see about a divorce " .

ORG Shortly before TIME on DATE , DATE after his wife had returned to live with her parents , and while the parents were out , the applicant forced his way into the GPE house and attempted to have sexual intercourse with the wife against her will . In the course of that attempt he assaulted her , in particular by squeezing her neck with both hands .

ORG The applicant was charged with attempted rape and assault occasioning actual bodily harm . At his trial before ORG on DATE it was submitted that the charge of rape was CARDINAL which was not known to the law by reason of the fact that the applicant was the husband of the alleged victim . He relied on a statement by Sir PERSON in his History of the Pleas of the Crown published in DATE :

" But the husband can not be guilty of rape committed by himself upon his lawful wife , for by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband , which she can not retract . "

ORG In his judgment ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) Mr Justice PERSON noted that it was a statement made in general terms at a time when marriage was indissoluble . PERSON CJ had been expounding the common law as it seemed to him at that particular time and was doing it in a book and not with reference to a particular set of circumstances presented to him in a prosecution . The bald statement had been reproduced in the first edition of GPE on Criminal Pleadings , Evidence and Practice ( DATE , p. CARDINAL ) in the following terms : " A husband also can not be guilty of rape upon his wife . "

Mr Justice PERSON further examined a series of court decisions ( NORP v. PERSON [ DATE ] CARDINAL ORG DATE ] All England Law Reports CARDINAL ; NORP v. PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ; NORP v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ; NORP v. PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ; PERSON O’Brien [ DATE ] CARDINAL All England Law Reports CARDINAL ; PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ; NORP v. PERSON [ DATE ] Criminal Law Reports CARDINAL ; see paragraphs CARDINAL below ) , recognising that a wife ’s consent to marital intercourse was impliedly given by her at the time of marriage and that the consent could be revoked on certain conditions . He added :

" I am asked to accept that there is a presumption or an implied consent by the wife to sexual intercourse with her husband ; with that , I do not find it difficult to agree . However , I find it hard to ... believe that it ever was the common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse ... If it was , it is a very sad commentary on the law and a very sad commentary upon the judges in whose breasts the law is said to reside . However , I will nevertheless accept that there is such an implicit consent as to sexual intercourse which requires my consideration as to whether this accused may be convicted for rape . "

On the question of what circumstances would suffice in law to revoke the consent , PERSON Justice PERSON noted that it may be brought to an end , firstly , by a court order or equivalent . Secondly , he observed , it was apparent from ORG judgment in the case of PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) that the implied consent could be withdrawn by agreement between the parties . Such an agreement could clearly be implicit ; there was nothing in the case - law to suggest the contrary . Thirdly , he was of the view that the common law recognised that a withdrawal of either party from cohabitation , accompanied by a clear indication that consent to sexual intercourse has been terminated , would amount to a revocation of the implicit consent . He concluded that both the second and third exceptions to the matrimonial immunity against prosecution for rape applied in the case .

Following the judge ’s ruling , the applicant pleaded guilty to attempted rape and assault occasioning actual bodily harm , and was sentenced to CARDINAL years’ imprisonment .

ORG The applicant appealed to ORG , on the ground that Mr Justice PERSON had made a wrong decision in law in ruling that a man may rape his wife when the consent to intercourse which his wife gave on entering marriage had been revoked neither by a court order nor by agreement between the parties .

ORG On DATE ORG ( Lord PERSON , Sir PERSON P , PERSON , PERSON and PERSON ) , unanimously dismissed the appeal ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) . Lord PERSON noted that the general proposition of Sir PERSON in his History of the Pleas of the Crown ( DATE ) ( see paragraph CARDINAL above ) that a man could not commit rape upon his wife was generally accepted as a correct statement of the common law at that epoch . Further , PERSON made an analysis of previous court decisions , from which it appears that in NORP v. PERSON ( DATE ) , the first reported case of this nature , some judges of ORG for Crown Cases Reserved had objected to the principle . In the next reported case , NORP v. PERSON ( DATE ) , the trial court had departed from the principle by holding that the husband ’s immunity was lost in the event of a court order directing that the wife was no longer bound to cohabit with him . Almost every court decision thereafter had made increasingly important exceptions to the marital immunity ( see paragraph CARDINAL below ) . ORG had accepted in PERSON ( DATE ) that the implied consent to intercourse could be terminated by agreement . This was confirmed by ORG in NORP v. PERSON ( DATE ) , where it held that the lack of a non - molestation clause in a deed of separation , concluded on expiry of a non - molestation order , did not revive the consent to intercourse .

Lord PERSON added the following observations :

" Ever since the decision of PERSON in NORP v. PERSON in DATE , courts have been paying lip - service to PERSON proposition , whilst at the same time increasing the number of exceptions , the number of situations to which it does not apply . This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes .

There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition , a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded DATE as acceptable behaviour .

It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in DATE society , the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment . That in the end comes down to a consideration of the word ‘ unlawful’ in LAW . "

Lord PERSON then critically examined the different strands of interpretation of section CARDINAL ( CARDINAL ) ( a ) of LAW in the case - law , including the argument that the term " unlawful " ( see paragraph CARDINAL below ) excluded intercourse within marriage from the definition of rape . He concluded :

" ... [ W]e do not consider that we are inhibited by LAW from declaring that the husband ’s immunity as expounded by PERSON no longer exists . We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law , irrespective of his relationship with his victim . "

ORG granted the applicant leave to appeal to ORG , which unanimously upheld ORG judgment on DATE ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) . Lord PERSON of GPE , joined by Lord PERSON of ORG , Lord PERSON , Lord PERSON and Lord PERSON , gave , inter alia , the following reasons :

" For DATE after the publication of PERSON ’s work there appeared to have been no reported case in which judicial consideration was given to his proposition . The first such case was NORP v. PERSON [ DATE ] CARDINAL ORG DATE ] All LAW CARDINAL ... It may be taken that the proposition was generally regarded as an accurate statement of the common law of GPE . The common law is , however , capable of evolving in the light of changing social , economic and cultural developments . PERSON ’s proposition reflected the state of affairs in these respects at the time it was enunciated . Since then the status of women , and particularly of married women , has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail . Apart from property matters and the availability of matrimonial remedies , CARDINAL of the most important changes is that marriage is in modern times regarded as a partnership of equals , and no longer one in which the wife was the subservient chattel of the husband . PERSON ’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time . In modern times any reasonable person must regard that conception as quite unacceptable .

The position then is that that part of PERSON ’s proposition which asserts that a wife can not retract the consent to sexual intercourse which she gives on marriage has been departed from in a series of decided cases . On grounds of principle there is no good reason why the whole proposition should not be held inapplicable in modern times . The only question is whether section CARDINAL ( CARDINAL ) of the DATE Act presents an insuperable obstacle to that sensible course . The argument is that ‘ unlawful’ in that subsection means outside the bond of marriage .

... The fact is that it is clearly unlawful to have sexual intercourse with any woman without her consent , and that the use of the word in the subsection adds nothing . In my opinion there are no rational grounds for putting the suggested gloss on the word , and it should be treated as being mere surplusage in this enactment ...

I am therefore of the opinion that section CARDINAL ( CARDINAL ) of the DATE Act presents no obstacle to this ORG declaring that in modern times the supposed marital exception in rape forms no part of the law of GPE . ORG , took a similar view [ in the present case ] . Towards the end of the judgment of that court Lord PERSON said ... :

‘ The remaining and no less difficult question is whether , despite that view , this is an area where the court should step aside to leave the matter to the parliamentary process . This is not the creation of a new offence , it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.’

I respectfully agree . "

ORG The offence of rape , at common law , was traditionally defined as unlawful sexual intercourse with a woman without her consent by force , fear or fraud . By LAW DATE , " it is a felony for a man to rape a woman " .

Section CARDINAL ( CARDINAL ) of the Sexual Offences LAW DATE provides , in so far as it is material , as follows :

" For the purposes of LAW DATE ( which relates to rape ) a man commits rape if -

( a ) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it ... "

ORG On DATE ORG LAW DATE replaced the above provisions by inserting new subsections to section CARDINAL of LAW DATE , CARDINAL of the effects of which was to remove the word " unlawful " :

" CARDINAL . ( CARDINAL ) ORG It is an offence for a man to rape a woman or another man .

( CARDINAL ) ORG A man commits rape if DATE ( a ) he has sexual intercourse with a person ... who at the time of the intercourse does not consent to it ... "

ORG Until the proceedings in the applicant ’s case the LANGUAGE courts , on the few occasions when they were confronted with the issue whether directly or indirectly , had always recognised at least some form of immunity attaching to a husband from any charge of rape or attempted rape by reason of a notional or fictional consent to intercourse deemed to have been given by the wife on marriage . The proposition of Sir PERSON quoted above ( see paragraph CARDINAL ) has been upheld until recently , for example in the case of PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , which concerned the question whether or not a wife had impliedly consented to acts which if performed against her consent would amount to an indecent assault . Mr Justice PERSON , giving the judgment of the court , stated , obiter :

" It is clear , well - settled and ancient law that a man can not , as actor , be guilty of rape upon his wife . "

And he went on to say that that principle was

" dependent upon the implied consent to sexual intercourse which arises from the married state and which continues until that consent is put aside by decree nisi , by a separation order or , in certain circumstances , by a separation agreement " .

In another example , Lord ORG O’Connor in the NORP v. PERSON case ( [ DATE ] Criminal Law Reports CARDINAL ) held :

" The status of marriage involves that the woman has given her consent to her husband having intercourse with her during the subsistence of the marriage ... she can not unilaterally withdraw it . "

ORG However , on DATE , Mr Justice PERSON held in NORP v. PERSON ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) that the whole concept of marital exemption in rape was misconceived :

" Were it not for the deeply unsatisfactory consequence of reaching any other conclusion on the point , I would shrink , if sadly , from adopting this radical view of the true position in law . But adopt it I do . Logically , I regard it as the only defensible stance , certainly now as the law has developed and arrived in DATE . In my judgment , the position in law DATE is , as already declared in GPE , that there is no marital exemption to the law of rape . That is the ruling I give . "

On the other hand , on DATE , in NORP v. PERSON ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) Mr Justice PERSON upheld the general common law rule , considering that the effect of section CARDINAL ( CARDINAL ) ( a ) of LAW was that the marital exemption embodied in PERSON ’s proposition was preserved , subject to those exceptions established by cases decided before the LAW was passed . He further stated :

" ... there is an important general principle to be considered here , and that is that the law , especially the criminal law , should be clear so that a man may know where he stands in relation to it . I am not being so fanciful as to suppose that this defendant carefully considered the authorities and took Counsel ’s advice before behaving as alleged , but the basic principle extends a long way beyond the bounds of this case and should operate to prevent a man being convicted by means of decisions of the law ex post facto . "

On DATE , Mr Justice PERSON in NORP v. PERSON followed PERSON , though he considered that it was open to judges to define further exceptions .

Both PERSON and PERSON stated that they regretted that section CARDINAL ( CARDINAL ) ( a ) of the DATE Act precluded them from taking the same line as PERSON in NORP v. C.

ORG In its ORG within Marriage " completed on CARDINAL DATE , ORG stated :

" CARDINAL.CARDINAL It is generally accepted that , subject to exceptions ( considered ... below ) , a husband can not be convicted of raping his wife ... Indeed there seems to be no recorded prosecution before DATE of a husband for raping his wife ...

CARDINAL The immunity has given rise to a substantial body of law about the particular cases in which the exemption does not apply . The limits of this law are difficult to state with certainty . Much of it rests on first instance decisions which have never been comprehensively reviewed at appellate level ... "

ORG identified the following exceptions to a husband ’s immunity :

- where a court order has been made , in particular :

( a ) where an order of the court has been made which provides that a wife should no longer be bound to cohabit with her husband ( NORP v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ;

( b ) where there has been a decree of judicial separation or a decree nisi of divorce on the ground that " between the pronouncement of decree nisi and the obtaining of a decree absolute a marriage subsists as a mere technicality " ( NORP v. O’Brien [ DATE ] CARDINAL All England Law Reports CARDINAL ) ;

( c ) where a court has issued an injunction restraining the husband from molesting the wife or the husband has given an undertaking to the court that he will not molest her ( NORP v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ;

( d ) in the case of NORP v. PERSON ( [ DATE ] Criminal Law Reports CARDINAL ) , ORG found that where a non - molestation order of DATE had been made in favour of the wife her deemed consent to intercourse did not revive on expiry of the order ;

- where no court order has been made :

( e ) Mr Justice PERSON observed , obiter , in NORP v. PERSON ( [ DATE ] CARDINAL Queen ’s Bench Division CARDINAL ) that a wife ’s consent would be revoked by an agreement to separate , particularly if it contained a non - molestation clause ;

( f ) Lord Justice PERSON stated , obiter , in NORP v. PERSON that a separation agreement with a non - cohabitation clause would have that effect .

ORG noted that it was stated in PERSON and endorsed by ORG in PERSON that lodging a petition for divorce would not be sufficient .

It referred also to the ruling by PERSON Justice PERSON in the present case where an implied agreement to separate was considered sufficient to revoke the immunity and that , even in the absence of agreement , the withdrawal from cohabitation by either party , accompanied by a clear indication that consent to sexual intercourse had been terminated , would operate to exclude the immunity . It found this view difficult to reconcile with the approach in PERSON that filing a divorce petition was " clearly " not sufficient . The ruling in the present case appeared substantially to extend what had previously been thought to be the law , although it emphasised that factual separation , and not mere revocation of consent to intercourse , was necessary to remove the immunity .

ORG pointed out that its inquiry was unusual in CARDINAL important respect . It was usual practice , when considering the reform of common law rules , to consider the grounds expressed in the cases or other authorities for the current state of the law , in order to analyse whether those grounds were well - founded . However , that step was of little assistance here , partly because there was little case - law on the subject but principally because there was little dispute that the reason set out in the authorities for the state of the law could not be supported ( paragraph CARDINAL of ORG ) . The basis of the law was that intercourse against the wife ’s actual will was excluded from the law of rape by the fictional deemed consent to intercourse perceived by Sir PERSON in his dictum . This notion was not only quite artificial but , certainly in the modern context , was also quite anomalous . Indeed , it was difficult to find any current authority or commentator who thought that it was even remotely supportable . The artificial and anomalous nature of the marital immunity could be seen if it was reviewed against the current law on the legal effects of marriage ( paragraph CARDINAL ) .

The concept of deemed consent was artificial because the legal consequences of marriage were not the result of the parties’ mutual agreement . Although the parties should have legal capacity to enter into the marriage contract and should observe the necessary formalities , they were not free to decide the terms of the contract ; marriage was rather a status from which flow certain rights or obligations , the contents of which were determined by the law from time to time . This point had been emphasised by Mr Justice PERSON in NORP v. PERSON ( DATE ) when he said : " The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part , but is mere submission to an obligation imposed on her by law " ( paragraph CARDINAL ) .

In this connection , ORG stressed that " [ CARDINAL rights and duties arising from marriage have , however , changed over DATE as the law has adapted to changing social conditions and values . The more modern view of marriage is that it is a partnership of equals " ( paragraph CARDINAL ) . It then gave examples of such changes in the law and added :

" CARDINAL This gradual recognition of mutual rights and obligations within marriage , described in paragraphs CARDINAL - CARDINAL.CARDINAL above , in our view demonstrates clearly that , whatever other arguments there may be in favour of the immunity , it can not be claimed to be in any way justified by the nature of , or by the law governing , modern marriage . "

ORG made , inter alia , the provisional proposal that " the present marital immunity be abolished in all cases " ( paragraph CARDINAL of ORG ) .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE Novgorod . She is represented before the ORG by PERSON , a lawyer with ORG in GPE . The respondent Government are represented by Mr P. Laptev , Representative of GPE at ORG .

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

On DATE the applicant bought a flat on FAC from PERSON . for CARDINAL non - denominated NORP roubles ( “ RUR ” ) . On DATE . acquired for himself a new flat on FAC .

On DATE Zh . sued the applicant , seeking to have declared the sale of the FAC flat void ab initio .

On DATE the applicant brought a counterclaim for clear title in the FAC flat and Zh . ’s eviction from it . She asked for an injunction on all transactions with the FAC flat .

On DATE the ORG of PERSON issued an interim decision imposing a charging order in respect of the DATE Boulevard flat and prohibiting notaries public and the ORG registration authorities from registering any transactions with the flat .

On DATE Zh . sold the DATE Boulevard flat to a third party . On DATE ORG of ORG of PERSON ( Управление регистрации и технической инвентаризации ORG по управлению городским имуществом PERSON г. PERSON , “ the Registration Directorate ” ) registered the sale .

On DATE the applicant asked ORG to declare the registration null and void .

On DATE a deputy head of ORG responded that the registration had been “ erroneous ” and that the person responsible had been disciplined . He advised the applicant to apply to a court for a declaration of nullity of the transaction and for compensation for the pecuniary damage .

On DATE the ORG of PERSON found for Zh . It held that the sale of the FAC flat had been void ab initio . Zh . retained title to that flat but was ordered to repay the purchase price to the applicant . The applicant ’s counterclaim was dismissed .

On DATE the applicant instituted enforcement proceedings . As PERSON . had little money and no assets , the amount due to her was not recovered in full until DATE .

On DATE the applicant sued in tort the ORG agency for registration of rights to , and transactions with , immovable property of ORG ( Государственное учреждение юстиции PERSON области по регистрации прав на недвижимое имущество и сделок с ним , “ the Registration Agency ” ) . She sought compensation for the pecuniary damage incurred through the unlawful registration carried out by ORG on DATE .

On DATE the ORG of PERSON gave judgment . It found that Zh . was responsible for the fact that the applicant had not received in good time the amount due to her under the judgment of DATE . Moreover , although the applicant had become aware of the sale of the FAC flat long before the judgment of CARDINAL DATE was issued , she had not sought alternative interim measures . Hence , ORG was not liable for the damage incurred by the applicant through Zh . ’s persistent failure to repay the purchase price .

On DATE the ORG upheld the judgment , relying on the following grounds :

“ As the charging order in respect of Zh . ’s flat on FAC was issued on DATE , whereas Zh . sold the flat on DATE , at the moment of the sale the charging order had not yet become effective ( the time - limit for lodging an appeal had not expired ) and therefore Zh . could sell the flat ; moreover , the court rightly found that at the moment of the sale [ of the flat ] the judgment debt had not yet arisen . The judgment was given on CARDINAL DATE , but only became effective in DATE .

Between the date the judgment became effective and the date the enforcement began LOC . could dispose of the contested flat . Thus , it appears from the case file , even before Zh . ’s claim was granted , [ the applicant ] had become aware of the sale of the flat but had failed to undertake any measures . ”

ORG confirmed the findings of ORG as to the absence of the fault on the part of ORG .

Article CARDINAL of the RSFSR Code of Civil Procedure of DATE ( effective until DATE ) provided that a judge could order an interim measure at the request of a party or of his own initiative . Interim measures may include , in particular , a charging order in respect of the defendant ’s property ( Article CARDINAL ) .

An interim measure was to be implemented immediately in accordance with the procedure set out for enforcement of judgments ( Article CARDINAL ) . An appeal lay against the decision indicating an interim measure ; the lodging of an appeal did not suspend the implementation of the measure ( Article CARDINAL ) .

A ORG agency or a ORG official shall be liable to a citizen for damage caused by their unlawful actions or failures to act . Such damage is to be compensated for at the expense of the federal or regional treasury ( Article CARDINAL of LAW of GPE ) .


The applicant , PERSON PERSON , is a NORP national who was born in DATE and presently is detained in FAC , GPE . ORG were represented by their Agent , Mr J. PERSON of ORG .

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

On DATE the applicant , who was a police officer , was arrested by the police and detained on remand on a charge of murder .

On DATE the ORG ( PERSON ) convicted the applicant as charged and sentenced him to DATE imprisonment .

The applicant appealed .

On DATE the ORG ( Sąd Apelacyjny ) upheld the impugned judgment .

On DATE ORG ( Sąd Najwyższy ) dismissed the applicant ’s cassation appeal as being manifestly illfounded .

The applicant submitted copies of envelopes addressed to FAC ( PERSON , PERSON ) but which , apparently , contained letters concerning official correspondence in the applicant ’s cases pending before the domestic courts .

CARDINAL envelopes from ORG ( Sąd Apelacyjny w Poznaniu ) concerning cases no I AK CARDINAL/CARDINAL and ORG CARDINAL/CARDINAL : posted on DATE and delivered to FAC on DATE ; posted on DATE and delivered to FAC on DATE . Both envelopes also bear a handwritten note : “ Otomański ” . An envelope from ORG in GPE , ORG ( PERSON , GPE , GPE ) concerning case no . VKK CARDINAL/CARDINAL ( the applicant ’s cassation proceedings ) posted on DATE and delivered to FAC on DATE .

An envelope from ORG concerning case no . I AKZ CARDINAL/CARDINAL sent on DATE and delivered to FAC on DATE . An envelope from ORG concerning case no . IIAKZ CARDINAL/CARDINAL sent on DATE and delivered to FAC on DATE .

The following envelopes from ORG ( PERSON w Poznaniu ) and concerning proceedings no . IIIK CARDINAL/CARDINAL : posted on DATE ; posted on DATE ; posted on DATE and delivered to FAC on DATE ; posted on CARDINAL DATE and delivered to FAC on DATE .

Article CARDINAL § CARDINAL of LAW ( NORP karny wykonawczy ) of DATE ( “ the CARDINAL Code ” ) provides that convicted persons are entitled to uncensored correspondence with the judicial authorities and other ORG authorities .

Article CARDINAL § CARDINAL of the DATE Code reads as follows :

“ The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter . ”


Preliminary objection allowed (six month period);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Not necessary to examine Art. 8;Remainder inadmissible;Pecuniary damage and non-pecuniary damage - financial award (global);Costs and expenses partial award - Convention proceedings

András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze

The applicant was born in DATE and lives in GPE .

On DATE Ms GPE lodged a criminal complaint against ORG and ORG , alleging threatening behaviour . She apparently stated that “ a certain PERSON , chief of police ” had protected the CARDINAL men .

On DATE , at TIME , the applicant , who had been employed as a doctor by the GPE police for DATE , received a telephone call from his supervisor , who asked him to come to the office . As he got out of his car in the car park outside the building , the applicant was stopped by QUANTITY police officers . In front of the members of the public in the courtyard , he was handcuffed and informed that he was under arrest . In the course of his arrest , the applicant told the officers that he was an official police doctor and that there must have been a mistake . He begged them not to handcuff him in front of CARDINAL of people . He was taken into police custody in the organised crime and arms - trafficking branch .

DATE , without having informed him of the accusations against him , the police took the applicant in handcuffs to his workplace and home , where they carried out searches . It appears that he again asked for the handcuffs to be removed so that his children and neighbours would not see him being restrained . He even suggested that the officers go to his home after sunset so that he would not be exposed to public view . The police officers refused and , moreover , forced him to walk QUANTITY along the road before arriving at his home . During the search he was allegedly insulted in front of his family . The police also seized his official weapon .

The applicant further maintained that he had signed the records of the searches while in handcuffs , before being escorted back to the police headquarters . He was made to sit on a chair , blindfolded and still in handcuffs , throughout his time in police custody . As the chair was by the entrance to the toilets , he was jostled whenever anyone came past . He heard staff from the headquarters ask why their doctor was in police custody . He refused to drink or eat .

On DATE a statement was taken from him by the police although he had not been informed of the accusations against him .

On DATE , DATE and DATE the applicant was examined by a forensic specialist . The subsequent medical reports did not mention any signs of assault . They stated that he was cooperative and lucid , that his faculties had not been impaired and that he had not reported any particular grievances .

On DATE the applicant was taken to the ORG public prosecutor 's office ; he was later released without being brought before the prosecutor .

On DATE he was examined by a psychiatrist , who certified him unfit for work for DATE on account of psychiatric trauma . His sick - leave was extended several times on account of acute depression .

On DATE the applicant lodged a very detailed complaint with ORG concerning his detention in police custody , setting out the circumstances in which he had been arrested , detained and released after DATE without any explanation . He asked the court to inform him why he had been taken into police custody .

DATE the court replied that he had been questioned in connection with criminal investigation no . DATE because of his relations with suspects .

On DATE the applicant was informed that he was to be suspended until the end of the criminal investigation on account of his relations with persons who had already been convicted of blackmail , looting and false imprisonment as members of an organised gang .

On DATE the factory which employed him as a doctor under an individual contract – a post he had found in the private sector – dismissed him , criticising him for his lack of care and attention towards the staff . The letter of dismissal also mentioned that he was undergoing psychiatric treatment .

In an order of CARDINAL March CARDINAL ORG ruled that the applicant 's official weapon should be returned to him in the absence of any offence or indictment .

On DATE the public prosecutor 's office discontinued the case against the applicant .

On DATE , the applicant was reinstated in his post at the police headquarters . However , as he was unable to work in the same department on account of aggravated psychosomatic symptoms , he remained on sick - leave until DATE , when he was admitted to hospital .

On DATE he was ordered to take early retirement on health grounds , the diagnosis being “ persecution - type hallucination with serious depression ” . He was subsequently admitted to the neuropsychiatry department of ORG on several occasions for psychiatric treatment .

On DATE the applicant lodged a complaint with the PERSON public prosecutor 's office against CARDINAL police officers , GPE , PERSON , GPE , GPE and GPE , alleging that they had abused their authority and ill - treated him with a view to obtaining a confession . He gave a detailed explanation of how he had been handcuffed without being informed of the accusations against him and insulted in front of his family and police personnel , and of all the forms of humiliation he had suffered without knowing why .

The public prosecutor 's office asked ORG ( PERSON ) for leave to open an investigation .

On DATE ORG refused leave to open a judicial investigation on the ground that no fault was attributable to the police officers .

On DATE the applicant lodged an objection with ORG .

In a judgment of DATE ORG dismissed the objection .

On DATE the public prosecutor 's office discontinued the proceedings on the basis of ORG decision .

On DATE the applicant appealed against the judgment to ORG .

On DATE ORG dismissed the appeal .