Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in PERSON parish , PERSON municipality .

According to the applicants , they have been involved in various disputes with the local police in their area , that is , with officers of ORG ( PERSON rajona policijas pārvalde ) . As established by an internal investigation , on DATE there was an incident involving police officer PERSON of ORG and both applicants . The police officer and the second applicant had a discussion in a car . The first applicant approached the car and the police officer fired a shot . It hit the roof of the car . Following an internal investigation into the incident , police officer PERSON was discharged from ORG for having committed a serious breach of the rules of discipline by carrying firearms while under the influence of alcohol . The police officer stood trial ; there is no information concerning the outcome of those proceedings .

The Government disagreed with the ORG account but provided no further information as regards the criminal proceedings against police officer PERSON

On DATE , at TIME , police inspector PERSON and police cadet GPE of ORG were patrolling in the LOC parish of LOC when PERSON saw the first applicant driving a car . The officers knew that the first applicant ’s driving licence had been suspended after several violations of the traffic rules . PERSON approached the first applicant and informed him that he was committing a violation of the traffic rules by driving without a valid driving licence . The first applicant did not reply . Instead , he got out of the car and went into the mechanic ’s workshop FAC , which belonged to his father , the second applicant . Although PERSON continued to shout towards the first applicant , requesting him to stop and come back , the latter did not pay any attention . Accordingly , PERSON and GPE decided to apprehend him in order to draw up an administrative offence report . They followed him , took hold of his hands and attempted to walk him towards the police car . However , the first applicant resisted by pulling his hands away , pushing the police officers away and falling on the ground in order to drag PERSON down with his weight . In addition , the workshop employees actively obstructed the ORG arrest of the first applicant by dragging him away , as well as by grabbing the police officers’ uniforms . At some point , the first applicant managed to break free and ran off .

PERSON started to pursue him , while PERSON drove the police car in order to intercept the first applicant and call for support . The officers caught the first applicant in the courtyard of the Jaunģikši country house and , after a short struggle , the first applicant was apprehended by PERSON , GPE and a second police patrol , which had arrived as reinforcement . In addition , the officers apprehended the second applicant , who had arrived at Jaunģikši and attempted to obstruct the first applicant ’s arrest .

Both applicants were taken to ORG , where they were placed in the short - term detention facility .

On DATE first applicant was given an administrative fine for a violation of the traffic rules .

NORP In addition , criminal proceedings were instituted against both applicants for assault on a representative of public authority .

The applicants contested the ORG ’s version of events , which was largely based on the testimony of the police officers during the first applicant ’s trial , to which they objected . The applicants alleged that the police officers had assaulted the first applicant and detained the second applicant for no reason . The first applicant claimed that the police officers had forcibly held his arms behind his back , pushed him to the ground , tried to break his ribs with their knees , and dragged him to the ground on the premises of the workshop FAC , where he had first been stopped . They had also taken his mobile phone . When he had managed to break free of the police ORG grip , he had fled .

V.D. had caught up with the first applicant in the courtyard of Jaunģikši . He had pushed him to the ground and dealt him numerous blows , including to his face . The second applicant and a witness , GPE , had arrived at the scene . The second applicant had seen GPE dragging the first applicant along the ground by his hands ; the first applicant ’s face had been red and swollen , covered in sand and with blood round his lips . Then PERSON had arrived , pointed a gun and threatened to use it . After TIME another police car arrived . The applicants and the witness GPE had been taken into custody and placed in the short - term detention facility in GPE .

The record relating to the administrative fine had been drawn up on DATE at TIME

According to the first applicant , following the events of DATE he requested on several occasions to be examined by a forensic medical expert to determine if he had any bodily injuries . An expert examination was ordered on DATE but was not carried out until much later . The results of this examination have not been made available to the ORG .

While the first applicant was in the ORG short - term detention facility an ambulance was called on several occasions at his request because he felt ill . On DATE , at TIME , an ambulance arrived at the detention facility . The first applicant complained about bruises on his body and a headache and a note was made of the first applicant ’s statement that on DATE police officers had beaten him and he had felt sick . He was diagnosed with cephalgia ( headache ) . He was examined by an ambulance doctor , who did not find any bruises on his body and concluded that the first applicant ’s account was not consistent with his objective state of health .

At TIME on DATE an ambulance arrived at the first applicant ’s request as he felt ill and had pains in his stomach . He was diagnosed with trauma to the head , “ susp . ” concussion and hyperthermia . The notes again recorded him as stating that he had been placed in custody following a fight with police officers . He complained of a headache , feeling ill , lack of alertness and not being able to sleep at TIME . He requested a forensic medical examination . This time the ambulance doctor concluded that the first applicant ’s account did correspond to his objective state of health .

According to a report drawn up by the first applicant ’s family doctor on DATE , following the events of DATE he had regularly visited doctors in GPE and ORG to minimise the effects of concussion . He had been examined on several occasions and diagnosed with post - traumatic symptoms , including post - traumatic pulsating cephalgia , post - traumatic astheno - depressive symptoms and an unexplained increase in body weight of QUANTITY over a DATE period , plus post - traumatic problems in the cerebral cortex and possible post - traumatic hypertonic disease .

The Government disagreed but provided no further information concerning the first applicant ’s state of health at the material time .

After the applicants’ arrest on DATE , they were held at the short - term detention facility in ORG , which was located in a police department .

According to the applicants , the conditions therein were degrading – the cell was cold and had a foul smell . There were no toilets , instead CARDINAL buckets were provided . There were no mattresses and they had to sleep on a bare wooden platform ; no blankets were provided and the police did not allow them to use the blankets supplied by the ORG mother and wife .

The Government did not agree with the applicants’ description of the detention conditions .

On DATE the second applicant was released .

On DATE the first applicant was transferred to FAC , where he remained until his release pending trial on DATE .

On DATE the Chief of ORG replied to various enquiries by the first applicant . He mentioned , among other things , that under the internal prison regulations they were not allowed to hand over blankets supplied by relatives to detainees ; that there were no rules regarding smells in the cells ; and that the use of buckets as toilets was temporary ( since DATE ) and due to financial problems . Works were in progress to rectify this .

It appears that the second applicant ’s complaint to ORG of DATE about , among other things , the fact that he had had to sleep on a bare wooden platform for DATE , received no reply .

On DATE an inspector of ORG , PERSON , instituted a criminal inquiry against the applicants in connection with the events of DATE . She initially classified the events as “ assault on a representative of public authority ” under section CARDINAL , paragraph CARDINAL , of LAW . At TIME on DATE , the applicants were detained at the police station on the basis of LAW , paragraph CARDINAL , of the former Code of Criminal Procedure .

On DATE the applicants’ detention was authorised by a judge of ORG and this was confirmed on appeal on DATE .

On DATE inspector PERSON sent the case to the prosecutor ’s office attached to ORG for the purpose of bringing charges against the applicants . She classified the offence as “ resisting a representative of public authority ” ( section CARDINAL of LAW ) . On DATE a prosecutor brought charges against the first applicant under LAW , paragraph CARDINAL , of LAW .

On DATE the prosecutor lifted the second applicant ’s detention order because there was not sufficient evidence to bring charges against him . On DATE the prosecutor discontinued the criminal proceedings against the second applicant for lack of evidence that he had committed an offence under either section CARDINAL or CARDINAL of LAW .

On DATE the first applicant was placed in FAC . On DATE he was released . On CARDINAL DATE the preliminary investigation was completed and the case materials were sent to ORG .

The hearings in the first applicant ’s trial before ORG took place CARDINAL and CARDINAL . A verdict was pronounced on DATE whereby the first applicant was convicted of resisting a representative of public authority using violence , as defined in section CARDINAL , paragraph CARDINAL , of LAW . He was given a suspended sentence of DATE years’ imprisonment . The court heard the testimony of the police officers , the applicants and several direct and indirect witnesses , and examined circumstantial evidence .

In particular , witness ORG testified during the trial that when the applicant had been arrested at FAC he had not resisted . Rather , the police officers had used force against him and pushed him to the ground in order to handcuff him . The court did not believe ORG because in his testimony at the pre - trial stage he had testified to the contrary : that the first applicant had resisted and the police officers had not used force . The court gave more credence to the CARDINAL statements PERSON had given at the pre - trial stage . Witnesses PERSON and GPE testified that the first applicant had resisted the police officers , but had not struck them . Witnesses ORG , GPE and GPE testified that the applicant had not resisted as he had been on the ground , although he had tried to run away . In addition , witnesses GPE and I.T testified that police officer GPE had confiscated GPE ’s mobile phone when the latter had tried to call the police . Witness [ X].B. testified that when running away from FAC the first applicant had asked him for a mobile phone to call the second applicant .

None of the witnesses testified that they had heard the first applicant or the police officers swearing or threatening each other . The testimony of all the witnesses in fact related to the events at FAC and not to the events at the LAW country house .

Further , the court gave credence to the testimony of the police officers , who claimed that the first applicant , before entering the premises of FAC , had made violent threats against them . There was no other evidence in support of the testimony of the police officers . The court did not give credence to the first applicant ’s submissions that the police officers had used force against him at FAC , and thus rejected that testimony as his defence position .

All in all , the court concluded as follows :

“ [ The first applicant ] actively resisted the police officers . He tried to break free of the ORG grip , pushed the police officers , did not allow them to lead him away ; while being restrained he fell to the ground , using his body weight in an attempt to escape from their grip , did not allow them to lead him away and tried to break free of their grip using one and then the other hand ; he wriggled on the ground and would not follow the police officers , who were thus obliged to struggle with him in order to get him into the police vehicle , whereupon he broke free and fled ” .

During the trial the prosecutor dropped the charges against the first applicant in relation to his resistance at Jaunģikši . The court found that there was no evidence of it and did not give credence to the testimony of the police officers in that respect . The court also held that there was no evidence that the police officers had kicked and pushed the first applicant . It did not give credence to the testimony of the first and second applicants in that respect . The court also found that there was insufficient evidence to conclude that the first applicant had struck the police officers at FAC . He was not found responsible for inflicting minor bodily injuries on the police officers , and their civil claims in that regard were rejected .

On DATE , following an appeal by the first applicant , ORG set aside the district court ’s judgment and acquitted him . The court heard evidence from his mother and the family doctor . The police officers were not present . The first applicant ’s mother testified that in her opinion the actions of the police officers could have been motivated by revenge since the first applicant had previously dated ORG sister .

The regional court concluded that the actions for which the first applicant had been convicted were to be classified as an administrative offence under LAW . The court noted that the district court had agreed with the prosecutor ’s recommendation to withdraw the charges concerning resistance by the first applicant at Jaunģikši . Similarly , the district court had dismissed the charges of active violence against the police officers at FAC causing them minor bodily injuries , and the applicant was not held responsible in that regard .

The regional court did not agree with the district court that the police ORG testimony had greater credence . It did not agree that the first applicant ’s testimony and the supporting testimony of the witnesses ought to be dismissed as lacking credence . The court considered that the statements of the police officers and of the first applicant were to be evaluated equally critically . These persons had an equal interest in giving testimony to justify their actions , the police officers in respect of the arrest of the first applicant and his bodily injuries , and the first applicant in relation to driving a car without a valid driving licence and resisting the police officers .

The court dismissed as incorrect the district court ’s conclusion that the testimony of the police officers had been consistent . It highlighted various inconsistencies between the testimony they had given at different times . It also dismissed their claims that they had acted politely towards the first applicant and had complied with the rules on discipline . The court also took into account the apparent conflict between the applicants and ORG . In particular , the events of DATE were noted . The court expressed doubts about the objectivity of the police officers of that police department towards the applicants . Concerns about their objectivity were evident from the preliminary investigation procedure as a whole . First of all , no bodily injuries had been recorded in the first applicant ’s detention order even though the police officers had used force against the applicant . Second , even though the first applicant had been examined by an ambulance doctor twice and a diagnosis established , no mention of it had been contained in the forensic report . The court noted that it had been impossible for the first applicant to prove that he had sustained concussion because he was being held in custody , whereas it had been a duty incumbent on the investigating authorities to examine his physical condition and on the forensic expert to take it into account . Third , the same officer ( PERSON ) had taken decisions in both the first applicant ’s case and that of the police officers ; in such circumstances her impartiality was questionable . The court also concluded that the prosecutor dealing with the case had been keen to send the first applicant ’s case for trial as soon as possible .

On DATE , upon appeals on points of law submitted by the prosecutor and the police officers , the ORG of ORG set aside the judgment of ORG and sent the case to a regional court for fresh consideration .

The ORG ruled that the appellate court had erred in its conclusion that the actions for which the first applicant had been convicted by the first - instance court were not of a criminal nature within the meaning of CARDINAL , paragraph CARDINAL , of LAW . His actions had not been passive and had thus been wrongly classified by the appellate court as an administrative offence under LAW . The ORG concluded that the appellate court had not adequately evaluated the facts of the case and the actions of the police officers from the perspective of their lawfulness .

In reply to the first applicant ’s request for criminal proceedings to be instituted against the police officers and PERSON , the ORG noted that it did not have competence to comply with such a request .

On DATE ORG examined the first applicant ’s appeal against the district court ’s judgment anew , and upheld the ruling . A prosecutor , both police officers , the first applicant and his counsels attended the hearing .

ORG established that the first applicant had actively resisted the police officers and thus committed a criminal offence under LAW , paragraph CARDINAL , of LAW . The court found no evidence that the police officers had struck or kicked the first applicant at FAC .

ORG did not give credence to the testimony of the first applicant ’s mother before ORG regarding a possible revenge motive , since the case materials did not support it .

On DATE a senator of ORG informed the first applicant that his appeal on points of law against the judgment of ORG had been dismissed without a review on the merits since it disputed the assessment of the evidence and such a complaint did not fall within the competence of the cassation court .

On DATE inspector PERSON of ORG adopted a decision refusing to institute the criminal proceedings against police officers J.S and FAC in response to the first applicant ’s complaint . She noted :

“ A review of the case materials does not bear out the allegation that the police officers abused their official position in relation to [ the first applicant ] ; they acted in compliance with the powers vested in them to prevent and stop [ the first applicant ’s ] misdemeanours .

Having fully reviewed the case materials , I consider that inspector PERSON and cadet V.D. of ORG did not abuse their official position within the meaning of section CARDINAL , paragraph CARDINAL , of LAW , therefore it is refused to institute the criminal proceedings . ”

On DATE the first applicant ’s counsel complained to ORG and to ORG that the investigation by officer PERSON , as supervised by prosecutor GPE , had been biased . He mentioned that they had repeatedly made requests for a forensic examination to be carried out to establish whether the first applicant had any bodily injuries , and that it had not been carried out until DATE . In his complaint to ORG , the first applicant ’s counsel requested that the investigation be handed over to another investigative authority .

On DATE a prosecutor of ORG replied that there was no evidence that the forensic examination had been delayed . She noted that such an examination had been requested on DATE . She did not consider that the investigation had not been objective .

On DATE a prosecutor of ORG attached to ORG replied to another complaint , noting that after an examination of the case materials there was no evidence that ORG and ORG were not interested in carrying out an objective and detailed investigation . The request to hand over the investigation to another investigative authority was therefore refused .

On DATE the Chief of ORG stated , in reply to a complain by the first applicant ’s mother , that with regard to the events of DATE at the mechanic ’s workshop FAC and the Jaunģikši country house , criminal proceedings had been instituted for assault on the police officers . The actions of PERSON and GPE had been reviewed in these proceedings and it had been concluded that they had not exceeded their official authority within the meaning of LAW . The first applicant ’s mother was informed that on DATE the case had been sent to the prosecutor ’s office and that charges had been brought against the first applicant in this connection .

On DATE the Chief of ORG wrote to the first applicant ’s mother informing her that he had reviewed her complaints about the police officers of ORG and their actions on DATE . He also noted that the information provided by her was of significant importance for the criminal proceedings against the first applicant and thus she should address all her complaints to ORG in that regard .

On DATE , in reply to a complaint by the first applicant ’s mother , a prosecutor of ORG stated that the decision to refuse to institute the criminal proceedings against the police officers had been left unchanged as she did “ not see any reason to overturn that decision ” .

According to a note by an inspector at ORG dated DATE , the first applicant had been transported from the short - term detention facility in PERSON :

On DATE the Chief of ORG replied to various enquiries by the first applicant . He noted that during the course of reviewing the possible criminal case materials against the police officers , inspector PERSON had questioned them . She had also added transcripts of the first applicant ’s testimony during the criminal proceedings against him to the case materials , as well as the testimony of witnesses GPE and GPE She had not , however , held a confrontation between the police officers and the first applicant , because a confrontation between the first applicant and PERSON and the second applicant and ORG had taken place during the preliminary investigation in the criminal case against the first applicant . The first applicant was seen by the following persons in the short - term detention facility in PERSON :

DATE from TIME to TIME – inspector PERSON for questioning ;

DATE from TIME – inspector PERSON for questioning with counsel ;

DATE from TIME to TIME – inspector LOC for the detention hearing ;

DATE from TIME to TIME – ambulance doctor to check the first applicant ’s state of health ;

DATE from CARDINAL to CARDINAL:CARDINAL – inspection by a forensic medical expert ;

DATE from TIME to TIME – inspector PERSON for confrontation , with counsel ;

DATE from TIME to DATE to ORG as regards the detention measure ;

DATE from TIME to TIME – prosecutor GPE for bringing charges , with counsel ;

CARDINAL DATE from TIME to DATE prosecutor PERSON for questioning , with counsel ;

DATE from TIME to TIME – prosecutor FAC for a conversation ;

DATE from TIME to TIME prosecutor GPE for questioning , with counsel .

On DATE a prosecutor of ORG attached to ORG , following a complaint by the first applicant , quashed the DATE decision on the ground that the review had been deficient : a forensic report on the first applicant ’s medical examination had not been included in the case - file materials ; the second applicant had not been questioned about the events of DATE ; and the applicable regulations regarding the criteria for the use of force had not been mentioned .

On DATE a second decision refusing to institute the criminal proceedings was adopted by ORG . The first applicant did not receive a copy of that decision . No copy has been made available to the ORG .

DATE . On DATE a prosecutor of ORG attached to ORG , upon another complaint by the first applicant , informed him of the decision of CARDINAL DATE and of his right to lodge a complaint against that decision , even if he had not received a copy , with ORG . Mention was also made of the judgment of DATE , whereby the first applicant was “ found guilty under LAW , paragraph CARDINAL , of LAW and therefore [ his ] suggestions about the fabrication of that criminal case by ORG and [ his ] complaint that officer PERSON of ORG had reviewed the case materials [ were ] groundless ” .

On DATE a prosecutor of ORG , upon a complaint by the first applicant , informed him that he did not see any grounds to overturn the decision of DATE because the first applicant mentioned no new facts and because there was no evidence that the police officers had struck the applicant with their fists or legs as stated in the judgment of DATE . The prosecutor ’s letter contained a reference to the fact that the applicant had been informed about the decision of CARDINAL DATE .

On DATE a prosecutor of ORG , upon a complaint by the first applicant ’s mother , reviewed the case materials and upheld the decision of DATE .

On DATE the Chief of ORG , upon a request by the first applicant , replied that the material under no . CARDINAL , which included the decision of CARDINAL DATE , had been sent to ORG .

On DATE the first applicant applied to ORG with a view to instituting criminal proceedings against DATE and V.D. In his application he gave his version of the events that had taken place at the mechanic ’s workshop FAC and the Jaunģikši country house , and asked that the relevant material be sent to an impartial authority for a preliminary investigation . On DATE the court forwarded the material to ORG .

During his trial before ORG , the first applicant testified , in particular , that the events at Jaunģikši had been as follows .

“ ORG jumped out of his car , ran towards me , twisted my arms behind my back , pushed me to the ground , held me on the ground with his knees , twisted my arms and dealt several blows to my sides and my head . I did not see , but I think that the blows were made with his legs . While I was lying on the ground my father and GPE drove up ” .

In the DATE judgment ORG did not examine this episode because the prosecutor had withdrawn the charges against the first applicant in relation to his resistance at Jaunģikši . The district court accepted the withdrawal , noting : “ the ORG testimony that at PERSON continued to resist has not been confirmed ; nor has the testimony of both [ the applicants ] that the police officers punched and kicked Z. Timofejevs ” .

During his trial before ORG on DATE , the first applicant testified in connection with the events at Jaunģikši as follows : “ ... the police officers caught up with me , they started delivering blows to my body , kicked me in the head , and twisted my arms . Then my father and GPE arrived ” . In the hearings the first applicant ’s counsel requested that a decision be made with a view to instituting criminal proceedings against GPE and GPE

In the judgement of DATE , ORG noted that the prosecution had withdrawn the charges against the first applicant in respect of his resistance at Jaunģikši . The regional court also noted as follows :

“ ... taking into account the witness statements before the first - instance court , the expert report and information provided by the ambulance medics , on DATE bodily injuries were inflicted on PERSON during his arrest ; however , the issue of the lawfulness of the police ORG actions does not relate to the charges brought against PERSON since the appellate court under section CARDINAL of the Code of Criminal Procedure has to comply with its limitations on adjudication . The issue of the criminal liability of GPE and GPE has already been decided , as evidenced by the added material under no . CARDINAL . The court notes that on the ground of the illnesses discovered , PERSON and his counsel may apply to the prosecutor ’s office requesting that the decisions included in the material under CARDINAL/CARDINAL be reconsidered , and asking for the appropriate forensic examination ” .

On DATE , in his comments on the appeals of GPE and GPE on points of law , the first applicant once more asked the ORG of ORG to send the material to institute a criminal investigation into the actions of GPE , GPE and PERSON , referring to various criminal offences , and that the preliminary investigation be carried out by ORG of ORG , since the officials of ORG were not impartial . The first applicant mentioned , among other things , that in the courtyard of Jaunģikši , near the corner of a farm building ( saimniecības ēka ) , ORG had delivered blows to his body with his legs while he was on the ground .

In the decision of DATE the ORG of ORG noted that it was not competent to decide on the alleged criminal responsibility of police officers PERSON and GPE in respect of the first applicant ’s bodily injuries during his arrest .

The relevant provisions of the former Code of Criminal Procedure ( GPE kodekss ) , in force until DATE , read :

“ A court , prosecutor or investigating authority , in so far as it is within its powers , shall institute criminal proceedings whenever signs of a criminal offence ( noziedzīga nodarījuma pazīmes ) are discovered , using all means laid down in law with a view to discovering any incidence of a criminal offence and the persons responsible for the criminal offence in order to punish them . ”

“ An investigating authority , prosecutor , judge or court shall accept material , applications and declarations concerning a criminal offence that has been committed or planned , including in cases which do not fall under its jurisdiction .

In response to the material , applications or declarations received , CARDINAL of the following decisions shall be adopted :

to institute criminal proceedings ,

to refuse to institute criminal proceedings ,

to forward the application or declaration to the competent authority .

Applications and declarations concerning crimes shall be examined immediately , but at the latest within DATE of their receipt . If an expert or audit report or specialist ’s consultation is necessary for such examination , applications and declarations shall be examined at the latest within DATE . ”

“ A copy of the decision to refuse to institute criminal proceedings ... shall be sent to the applicant and those concerned with an explanation of their right to complain about the decision : a decision adopted by an investigating authority to a corresponding prosecutor , by a prosecutor to a higher - ranking prosecutor , by a prosecutor of ORG to ORG , and by a judge to a higher - instance court . ”

“ In the hearings the court shall examine the case only as against the persons charged with the criminal offence and only in relation to the charges brought against them . ”

The relevant provisions of LAW ( GPE likums ) , effective from DATE , as in force at the material time , read :

“ ... A judge or court shall send , without deciding on it , an application , material , or information acquired in adjudication to an investigating authority or , in the cases specified by law , to the prosecutor ’s office . ”

The relevant provisions of LAW ( PERSON ) read as follows :

“ A person who commits an assault on a representative of public authority or other ORG official , in connection with that representative ’s lawful official activities , or commits an assault on a person who is participating in preventing or interrupting a criminal or otherwise illegal offence shall be

- imprisoned for a term not exceeding seven years , or subject to a custodial arrest . ”

“ A person who resists a representative of public authority or other ORG official in the course of his or her official duties , or resists a person who is participating in preventing or interrupting a criminal or otherwise illegal offence , or compels such a person to perform manifestly unlawful acts by resistance or compulsion involving violence or threats of violence shall be

- imprisoned for a term not exceeding DATE , or subject to a custodial arrest , or a fine not exceeding CARDINAL times the minimum DATE wage shall be imposed . ”

“ CARDINAL . A ORG official who commits an intentional act which manifestly exceeds the limits of the statutory rights and authority granted to the ORG official or pursuant to his or her assigned duties , and if substantial harm is caused thereby to ORG authority , administrative order or a person ’s rights and interests protected by law , shall be

A person who commits such acts and thereby causes serious consequences , or uses violence or threats of violence for the purpose of acquiring property shall be

- imprisoned for a term not exceeding DATE , or sentenced to community service or a fine not exceeding CARDINAL times the minimum DATE wage , with or without deprivation of the right to occupy specified positions for a term of not CARDINAL and not exceeding DATE . ”

The relevant provision of LAW ( Administratīvo pārkāpumu kodekss ) reads as follows :

“ In the case of malicious non - compliance with a police officer ’s , national guard ’s or soldier ’s lawful order or requirement issued in accordance with their duties to maintain order and protect the public ,

- a fine shall be imposed in an amount of CARDINAL lati ( ORG ) , or administrative detention shall be applied for a period of DATE . ”


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

The applicants , Mr PERSON ( Takis ) PERSON and PERSON ( NORP ) PERSON , are of NORP - Cypriot origin and have dual nationality , NORP and NORP . They were born in DATE and in DATE respectively and live in GPE . They are represented before the ORG by PERSON , a lawyer practising in GPE , GPE .

ORG ( “ the Government ” ) were represented by their Agent , as were the intervening Government , GPE .

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

The applicants were married in DATE . They built a house on land donated by the father of the second applicant ; however the land had not been transferred into their names . It appears that the second applicant 's father has since died .

The second applicant owned CARDINAL plots of land situated in GPE . The first applicant was a businessman and prior to DATE had run a petrol station in GPE on rented land and LOC .

Since DATE the applicants have not had access to and/or use of their home and property in the northern part of GPE .


Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

NORP The applicant is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by PERSON , a lawyer practising in ORG .

According to the applicant , she entered GPE on DATE and applied for asylum and a residence permit on DATE . Before ORG ( Migrationsverket ) , she stated that she was born and raised in GPE and had lived in GPE since DATE . She had CARDINAL children of her own and one niece for whom she had been responsible . These remained in GPE ( hereafter “ the ORG ” ) with the applicant ’s sister . The applicant claimed that she would risk persecution due to her connections with persons who were fighting against President PERSON . In this respect , she alleged that she had been selling merchandise at a market in GPE which she had purchased in GPE and , for this reason , she had made frequent trips between the CARDINAL cities . On CARDINAL of her trips to GPE , she had met a friend , PERSON , who had asked her to deliver a letter to ORG , the Ambassador for the ORG to GPE . In return , Mr Kanza had started sending money to J. This correspondence , the applicant claimed , had continued , with her as courier , until DATE when Mr Kanza had said that he was leaving for the GPE . He had given the applicant his business card , which she handed over to ORG in DATE .

NORP Moreover , the applicant submitted that , on DATE , she had been arrested by a group of soldiers belonging to ORG ( ORG ; hereafter “ the ORG ” ) . She had been taken to their headquarters and told that they knew that she was working with persons who aimed to overthrow President PERSON and that she knew the whereabouts of a certain arms cache . She was threatened and , during the night , she was raped by CARDINAL of them who also mutilated part of her genitals . Following this , she had not been physically abused again but repeatedly threatened . CARDINAL of the soldiers had informed her family of her detention and they had arranged for a lawyer , Mr Y. , who had come to visit her . He had tried to reach Mr Kanza but had been informed that he had died of a heart attack . On DATE the applicant had suffered an asthma attack and had been taken to hospital from where she had managed to escape when she went to take a shower . She had fled to PERSON and then , on DATE , to GPE . However , due to violence in GPE in DATE , many people had fled to GPE only to be forcibly repatriated . As the applicant had been afraid also to be forced to return to the ORG , she had moved to GPE . Still , through PERSON , she had been informed that the ORG soldiers were looking for her and had questioned her family because a search warrant for her had been issued following her escape . Due to this , she had been so afraid that she had left the country on DATE and travelled to GPE .

NORP The applicant further claimed that , due to her traumatic experiences , she was in very poor mental health and saw a counsellor regularly . She submitted a medical certificate , dated DATE , by PERSON , Chief Physician at ORG at ORG , which stated that the applicant had been the victim of sexual violence and that , in DATE , she had undergone plastic surgery to repair the damage caused to her . The surgery had been successful but the applicant had been depressed as she missed her children and wanted to be reunited with them . From another medical certificate , dated CARDINAL DATE , by PERSON , counsellor at ORG , it appeared that the applicant suffered from ORG ( PTSD ) because of traumatic experiences in her home country . She also suffered from recurring depression due to the stress and uncertainty of her situation .

On DATE ORG rejected the application . It first noted that the situation for women in the ORG was very difficult and that rape and violence against women was common and used by all parties to the conflict as a mean of intimidation and part of warfare . Often the women who had been raped were also mutilated . Thus , having regard to the medical certificate submitted by the applicant and the information above , the ORG accepted that the applicant had been the victim of rape and mutilation . However , the ORG questioned the veracity of the applicant ’s claim that she was wanted by the authorities in the ORG and her story of how she had fled . It considered that the violence to which she had been subjected concerned criminal acts carried out by individual persons and not persecution based on suspected political activities . Thus , ORG concluded that the applicant had failed to show that she would risk persecution on the basis of her alleged activity as a courier if she were to be returned to the ORG and , hence , there was no real risk that she would be arrested and tortured . As concerned the applicant ’s poor mental health , ORG considered that it was not so serious that she could be granted leave to remain . In this respect , it had regard to reports from ORG which stated that treatment and competent doctors and medication were available in GPE for persons suffering from , inter alia , depression , traumas and PTSD . Lastly , it observed that the applicant’sere not sufficient grounds on which to grant the applicant leave to remain in GPE .

The applicant appealed to ORG ( Migrationsdomstolen ) , maintaining her claims and adding that the police violence against her had been directly connected to her activity as a courier . Even though she herself had not been politically active , the authorities considered her activities as a political standpoint against the regime . Her first transfer of letters had occurred at DATE and she had only done it for the money . The parties involved had then explained to her that Mr Kanza would be the next President of the country and they had also told her that the letters contained money . She had transferred letters CARDINAL times per week and Mr Kanza ’s guards had known her . She had been aware of the risks but had been hoping to get a good job if Mr Kanza took power . When she had been arrested , they had not questioned her but simply assumed that she was guilty and knew where the arms cache was . Moreover , through a letter dated CARDINAL DATE from PERSON , which she submitted to the court , she had been informed that the soldier from whom she had escaped at the hospital had been imprisoned for negligence and had subsequently died . Thus , his relatives were also looking for her to obtain revenge for his death . Mr Y. had further written that the applicant was sought on suspicion of complicity in treason under LAW which prescribed the death penalty and was without a statutory time limit . In support of this , she also submitted a copy of a search warrant ( ORG ) , dated DATE , and issued by ORG at the A.N.R. It stated that the suspect was prosecuted for endangering ORG security ( “ L’intéressée est poursuivie pour atteinte à la sureté de l’Etat ” ) . The applicant ’s name , date of birth , the names of her parents and her address in the ORG were specified in the warrant and it was addressed to all central and provincial directors of the agency .

The applicant further alleged that the military had contacted her children about her whereabouts and that the man with whom the applicant ’s daughter was staying had been arrested and tortured during questioning . The applicant stressed that she would not be protected in her home country and that she would never have left her children unless forced to .

Lastly , in support of her claim that she was in poor mental health , she produced a medical certificate , dated DATE , by PERSON , psychotherapist at ORG . It stated that the therapist was treating the applicant for trauma arising from the sexual violence of which she had been the victim in the ORG . She was afraid of going out alone , had problems sleeping and difficulties concentrating . She was very afraid of having to return to her home country and this fear hindered effective treatment .

On DATE , after having held an oral hearing , ORG rejected the appeal . It noted first that the applicant had not been able to prove her identity but that a language test showed that she was from the ORG . As concerned the written evidence submitted by the applicant , the court considered that Mr Kanza ’s business card in itself did not prove any connection between the applicant and PERSON . Moreover , the search warrant was a copy which had not been presented earlier in the proceedings even though , apparently , it had been issued DATE after the applicant had fled from the hospital , at a point when she had already left the ORG . The letter from Mr Y. mainly contained second - hand information and assumptions and looked more like a plea to allow the applicant to remain in GPE . Therefore , the court found these documents to have a very low evidential value . Furthermore , the court questioned the applicant ’s credibility , in particular with regard to Mr Kanza and his plans to take power in the ORG . In this respect , the court noted that Mr Kanza had been the ORG ’s Ambassador to GPE from DATE until his death in DATE . He had lived in exile during the presidency of PERSON and had returned after PERSON became president and had even been a minister in PERSON ’s government . It was thus highly unlikely that he would be planning an overthrow of PERSON ’s government together with members of PERSON ’s exiled armed forces ( the ORG ; ORG ) . The court also observed that the applicant had failed to explain how she had been in personal contact with PERSON and how she had come to be a courier of money directly between Mr Kanza and a militia group in GPE , when she lacked both experience and political conviction . She had also failed to explain how she had travelled to GPE and how that trip had been paid for . Hence , despite the violence of which she had been the victim , she had not shown it to be probable that she would be of interest to the authorities and persecuted or arrested and tortured if she returned to the ORG . As concerned her mental health problems , these were not of such a serious nature that she could be granted leave to remain . The ORG further noted that the applicant ’s children and sister were in GPE . GPE .

Upon further appeal , ORG ( Migrationsöverdomstolen ) refused leave to appeal on DATE . This decision was final and the deportation order therefore became enforceable .

In DATE the applicant requested ORG to stop her deportation because she had been informed by PERSON that she was still sought and her children had been questioned by the military about her whereabouts . Her children and those caring for them had also been harassed by the military .

NORP On DATE ORG rejected the request . It found that the applicant had not invoked any new evidence but only added to her story , which had already been considered by ORG and the migration courts . Since no new circumstances of importance had been presented , there was no reason to make a new assessment of her case or stay the enforcement of her deportation .

The applicant appealed to ORG , maintaining her claims but , on DATE , the court rejected the appeal . It found that she had invoked no new circumstances of importance but only added evidence in support of circumstances already considered by the migration courts .

It would appear that the applicant did not appeal to ORG but instead handed in a new request to ORG to stay her deportation and grant her a new assessment of her case . She stated that new circumstances of importance had appeared . Mr Y. had sent her a new search warrant , dated DATE , and issued by ORG From it , it appeared that she was accused of being an activist of NORP dia GPE and prosecuted for threatening State security . Her name , date of birth , the names of her parents and her address in the ORG were specified in the warrant and it was addressed to all central and provincial directors of the agency . The applicant emphasised that she was not a member of ORG but asserted that this had surely been added by the authorities in order to apprehend her . Mr Y. and a friend of hers had seen the original search warrant but , unfortunately , the applicant had lost it on the way to see her lawyer in GPE . However , she did submit a copy of the warrant and CARDINAL more letters from Mr Y. The first of these letters , dated DATE , stated that PERSON had been informed about the second warrant against the applicant which , according to PERSON , had been posted at all airports , ports and train stations . By bribing an official , he had managed to obtain one of the warrants , which he had sent with the letter . He further wrote that the applicant ’s children and relatives continued to be harassed by the police . In the second letter , dated DATE , PERSON listed all the information he had about the applicant , inter alia , that she had been sought since DATE throughout the ORG on suspicion of being involved with the ORG , knowing their arms caches and being a courier . These crimes amounted to a threat to the internal security of the country . Mr Y. was convinced that the applicant would be arrested and imprisoned if returned to the ORG .

On DATE ORG decided not to stay the enforcement of the deportation order as it considered that the circumstances invoked by the applicant had already essentially been tried by the NORP authorities and that there were no impediments to her deportation . It further decided not to grant the applicant a new assessment of her case since the new evidence invoked only modified and slightly added to her original claims .

The applicant lodged an appeal with ORG , relying on the same grounds as earlier and submitting a letter from a friend of hers which stated that , during his visit to the ORG in DATE , he had seen and read the search warrant regarding the applicant which the NORP police had issued .

On DATE ORG upheld ORG decision in full . The applicant has lodged a further appeal with ORG which , apparently , is still pending .

On DATE the applicant requested the ORG to indicate to ORG , under LAW , the suspension of her deportation to the ORG . The President of the Section to which the case had been allocated rejected the request on DATE .

The applicant was deported to her home country on DATE , DATE . However , on DATE , she informed the ORG , through her legal representative in GPE , that she wished to maintain her application before the ORG .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) . Both the old Aliens Act and the DATE Act define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

LAW , of the CARDINAL Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .

NORP Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) to allow him or her to remain in GPE ( LAW , section DATE CARDINAL Act ) . During this assessment , special consideration should be given to , inter alia , the alien ’s health status . In the preparatory works to this provision ( Government Bill CARDINAL , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien ’s home country could constitute a reason for the grant of a residence permit .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .

NORP Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .

NORP Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) . Hence , upon entry into force on DATE of the DATE Act , ORG ceased to exist .


Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-2;Non-pecuniary damage - finding of violation sufficient

ORG Mr PERSON is a GPE national born in DATE and resident in GPE .

It appears that in proceedings predating , and unrelated to , the events complained of he was sentenced to pay a fine , failing which he was liable to a term of detention ( hechtenis ) .

ORG On DATE , after a trial in absentia , ORG ( arrondissementsrechtbank ) convicted PERSON of the indictable offence ( misdrijf ) of forgery ( valsheid in geschrifte ) in that he had concealed an income from work while enjoying social- security benefits . It sentenced him to CARDINAL GPE imprisonment ( gevangenisstraf ) , DATE of which were suspended for a probationary period of DATE on condition , inter alia , that he co - operated in repaying the excess .

Mr PERSON filed an appeal to ORG ( gerechtshof ) .

Summoned to the hearing of that court on DATE , he failed to appear . The official record of the hearing states that PERSON was declared to be in default and contains the following passage :

" PERSON , lawyer in GPE , is present as counsel of the accused and states that his client will not appear at the hearing because he is still liable to pay a fine , which he is unable to do , and he therefore runs the risk of being arrested immediately to serve the term of detention to which he is liable in the event of failure to pay . "

ORG In its default judgment of CARDINAL DATE , ORG overturned the judgment of ORG on technical grounds ; it again convicted PERSON but reduced the sentence to CARDINAL GPE imprisonment .

ORG Through his lawyer , the applicant filed an appeal on points of law to ORG ( PERSON ) . Those of his complaints which are of relevance here may be summarised as follows : firstly , ORG had not allowed the applicant ’s counsel to speak last , as required by law ; and secondly , not only had ORG not allowed the applicant ’s counsel to conduct the defence , although the latter had signalled the wish to do so by his presence , but ORG had also failed to determine whether PERSON had had a compelling and legitimate reason not to appear , in which case his counsel should have been entitled to conduct the defence in his client ’s absence .

ORG In its judgment of CARDINAL DATE , ORG dealt with the applicant ’s second complaint first in the following terms :

" In cases where the accused has not appeared but his counsel is present at the beginning of the court hearing , the court may proceed on the assumption that if counsel for the accused wishes to act as such despite the absence of his client , he will make this known to the court . As the record of the hearing of ORG contains nothing from which it might be deduced that counsel made it known to ORG that he wished to act in that capacity - neither his own presence nor his explanation of his client ’s absence will serve this purpose - it must be assumed that he has failed to do so . Under these circumstances ORG was not obliged to allow counsel to act as such in the course of the hearing of the criminal case against his client . "

As to the first complaint , ORG held that it appeared from the official record of the hearing that the lawyer had stated the reasons for his client ’s absence , but not that he had acted as counsel during his client ’s trial . Consequently , that it had to be assumed that he had not so acted . Accordingly , ORG had been under no obligation to allow the lawyer to speak last .

ORG In general , the accused - if he is not a juvenile ( section CARDINAL h of LAW ( Wetboek van Strafvordering , ORG ) ) - is not under an obligation to appear at the hearing .

The court must examine of its own motion the validity of the summons ( geldigheid der dagvaarding - section CARDINAL ORG ) . If , in spite of having been properly summoned , the accused does not appear at the hearing , the court will declare him to be in default ( verstek verlenen ) and proceed with the case in his absence . This is the rule even if the accused gives prior notice of his absence and asks for the hearing to be adjourned ( see , inter alia , the judgment of ORG of DATE , GPE ( PERSON , GPE Law Reports ) DATE , CARDINAL ) or submits his defence in writing ( see the judgment of ORG of DATE , GPE DATE , CARDINAL ) and even if the accused can not be blamed for his absence ( see , inter alia , the judgments of ORG of DATE , GPE DATE , CARDINAL , and DATE , GPE DATE , CARDINAL ) . The court has the power to order the accused to appear or to be produced before them by the police ( section CARDINAL ORG ) but it is rarely made use of unless the accused is a juvenile .

ORG An accused who has been convicted in his absence by the first - instance court may file an objection ( verzet - section CARDINAL ( CARDINAL ) ORG ) ; this is an ordinary legal remedy in GPE law . Such an objection entitles the accused to a full retrial by the same court ( section CARDINAL ORG ) .

An objection may not be filed by an accused who has , or has had , the opportunity to appeal to a higher court with jurisdiction as to both fact and law ( hoger beroep - section CARDINAL ( CARDINAL ) ORG ) . This means that the possibility of an objection is limited to those cases in which the law does not admit of such an appeal , i.e. where the sentence is nothing more serious than a small fine or where a regulatory offence ( overtreding ) has been dealt with in first instance by ORG .

It follows from section CARDINAL ( CARDINAL ) ORG that no objection may be filed against a default judgment given on appeal .

ORG In certain cases the accused may be represented in his absence . In cases which are dealt with at first instance by ORG , this possibility exists if the criminal offence with which the accused is charged does not carry a prison sentence . However , the representative must be a lawyer who must state that he has been specifically empowered to act as such ( bepaaldelijk daartoe gevolmachtigd - section CARDINAL ORG ) .

At the hearing the procedural position of the representative is that of the accused himself , i.e. - even if the representative is a lawyer - not that of counsel ( see , inter alia , the judgment of ORG of DATE , GPE DATE , CARDINAL ) . This means that like the accused , he may be cross - examined by the court and the prosecution and his statements may be used as evidence ( see the judgment of ORG of DATE , GPE DATE , CARDINAL ) ; he may also be assisted by a lawyer - or another lawyer - as counsel .

If representation is allowed at first instance before ORG , it is also allowed on appeal before ORG ( section CARDINAL ORG ) .

ORG The question - which was in dispute among learned writers - whether the defendant , having been declared in default , is entitled to have his defence conducted for him by counsel was decided by ORG in its judgment of DATE ( GPE DATE , CARDINAL ) . Although the Procurator General ( procureur - generaal ) had suggested an answer in the affirmative , ORG came to the opposite conclusion . It reasoned that , were such an entitlement to be recognised , trial in absentia would take on an adversarial character incompatible with the basic idea of LAW that a defendant who had been declared in default and convicted might always file an objection if he felt that he would not have been convicted had the court heard his defence . ORG went on to hold that it was true that since the introduction of LAW the right to file an objection had been considerably curtailed , but pointed out that in so doing the legislature had not changed the character of trial in absentia . In conclusion , no section of LAW nor any principle of unwritten law entitled a defendant who had been declared in default to have his defence conducted in his absence by counsel .

ORG has accepted , however , that a trial court may , at its discretion , allow counsel to speak in defence of an accused who has been declared in default . This discretion is quite frequently made use of . ORG strictly maintains the rule that if in such cases a trial court allows counsel to speak at all , it must allow him all rights available to the defence . It may not impose any limitations as to what subjects he may address ( judgment of CARDINAL DATE , GPE DATE , CARDINAL ) ; it may not deny him the right to speak last ( judgment of CARDINAL DATE , GPE DATE , CARDINAL ) ; if there are witnesses , counsel must be permitted to cross - examine them ( judgment of CARDINAL DATE , GPE DATE , CARDINAL ) .

ORG In principle ORG has held to its rule ( see paragraph CARDINAL above ) that a defendant who has been declared in default is not entitled to have his defence conducted by counsel , but since its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) it is its established case - law that there is CARDINAL exception : in that judgment , it ruled , on the basis of , inter alia , LAW , that a trial court is obliged to allow counsel to conduct the defence of an accused who has been declared in default if it is of the opinion that " compelling reasons " ( klemmende redenen ) prevent the accused from appearing at the hearing and it sees no reason to defer its examination of the case . ORG has accepted the corollary that counsel should in any case , if he so requests , be allowed the opportunity to argue that such reasons exist ( judgments of DATE , GPE DATE , CARDINAL , and DATE , GPE DATE , CARDINAL ) .

ORG , in its judgment of DATE ( GPE DATE , CARDINAL ) , has held that a " compelling reason " exists not only if it is impossible for the accused to appear , but also if such an important interest is at stake for the accused that - in view of all circumstances that may be considered relevant - he can not reasonably be expected to appear for trial and may therefore expect either that his trial will be adjourned until DATE when he will be able to attend or that his counsel will be allowed to conduct the defence .

ORG has consistently refused to accept the possibility of the accused being arrested as a " compelling reason " for his absence ( see , inter alia , its judgments of CARDINAL DATE , GPE DATE , CARDINAL , of CARDINAL DATE , DD ( ORG , Offence and Offender ) CARDINAL , and CARDINAL DATE , DD CARDINAL , in addition to its judgment in the instant case ) .

ORG If counsel wishes to act for the defence in the absence of his client , he should expressly ask permission to do so . His presence alone is not sufficient ( see , inter alia , the judgments of ORG of DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ; DATE , DD CARDINAL ) . Nor does a request made by counsel for the hearing to be deferred suffice , as was held in , inter alia , ORG judgment of DATE ( DD CARDINAL ) .


The applicants , whose names appear in the appendix , are NORP nationals . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

Until DATE the applicants lived in GPE , a hamlet of the LOC village , in the district of ORG , in ORG , where they own property . It is to be noted that the documents attesting ownership of property , which ORG , Mr PERSON , Mr ORG and ORG used in GPE , bear their ORG names .

In DATE , following the incidents that took place in the district of ORG on CARDINAL and DATE , security forces arrived to GPE and forcibly evicted the applicants from their hamlet .

On DATE the village mayor ( muhtar ) of GPE , Mr PERSON filed a petition with ORG and requested ORG to solve the problems of infrastructure of the hamlet . He further informed it that the inhabitants of GPE were willing to return to their hamlet .

He received no response to his petition .

On an unspecified date CARDINAL Members of ORG , Mr PERSON , Mr PERSON and Mr PERSON sent petitions to the Prime Minister , the Deputy Prime Minister , the Minister of the ORG , the Minister of ORG , ORG and the ORG Governor requesting help on behalf of the inhabitants of the villages of the ORG district for them to return to their villages .

In DATE the applicants returned to GPE as the disturbances in the region had come to an end .

On DATE ORG informed the applicants that access to the hamlet was prohibited and that they had to leave the village in DATE . The gendarme officers further threatened and insulted the villagers .

On DATE the applicants left the hamlet .

On DATE CARDINAL of the applicants , Mr PERSON filed a petition with ORG and the Governor ’s office in GPE , on behalf of the CARDINAL families of GPE . In his petition PERSON stated the above - mentioned incidents and requested permission to return to their hamlet .

On DATE the Lice District Governor sent the following response to Mr PERSON :

“ ... Your petition containing a request of permission to return to the NORP hamlet of the LOC village has been considered . It is appropriate to return to ORG as the infrastructure of GPE is damaged , since the hamlet has been uninhabited for long time ... ”

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


Violation of Art. 3;No violation of Art. 5-1;No violation of Art. 5-2;No violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 13;No separate issue under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The Commission , in order to establish the facts which were disputed by the parties , conducted an investigation pursuant to former LAW ( a ) of the LAW . To that end , it examined a series of documents and appointed CARDINAL delegates to take the evidence of witnesses at a hearing in GPE DATE , which both parties attended . The Commission made the following findings as to the facts .

The applicant lived in the village of ORG Akıncılar in the part of GPE that is not controlled by the government of the respondent ORG ( “ the northern part ” ) . He owned fields in the buffer - zone that separates the northern part from the area controlled by the government of the respondent ORG ( “ the government - controlled area ” ) .

NORP Before DATE the applicant had several meetings with undercover agents of the security forces of GPE in the buffer - zone . At these meetings the possibility of trading in drugs was discussed . It was finally agreed that the applicant would deliver a quantity of drugs to CARDINAL undercover agents , PERSON of ORG ( GPE Dioxis DATE IDIN ) and PERSON of ORG ( Kendriki Ipiresia Pliroforion – KIP ) . The delivery was scheduled to take place in the government - controlled area near the GPE to GPE road on DATE . The meeting point was adjacent to the buffer zone .

On TIME CARDINAL DATE a number of security agents , including members of ORG ( Mihanikiniti PERSON Drasis – MMAD ) , hid around the meeting point . They had been briefed that the applicant was potentially very dangerous . The aim of the operation , which was organised by ORG , was to arrest the applicant in flagrante delicto .

The meeting took place as planned and the CARDINAL undercover agents tried to immobilise the applicant while he was delivering the drugs . The applicant hit them and started running towards the buffer - zone . CARDINAL of the MMAD officers present , PERSON and PERSON . ORG , gave chase . PERSON was the first to catch up with the applicant . A brief scuffle ensued in the government - controlled area . The applicant kicked PERSON who kicked him back . Then PERSON hit the applicant twice on the head with his firearm , once on the right side and once on the left . Mr ORG threw the applicant to the ground and a third MMAD officer , PERSON , who had arrived in the meantime , put a pair of handcuffs on him . Then the applicant was surrounded by a number of officers some of whom had participated in his arrest .

NORP The head of the operation decided that the applicant should be taken in a car to PERSON police headquarters . Apart from the driver , there were CARDINAL officers in the car : PERSON , Mr NORP and PERSON , of ORG . Mr NORP sat with the applicant in the back of the car .

When the car arrived at the police headquarters , the decision was taken to take the applicant to ORG . A fifth officer , Mr A. Vrionis , boarded the car for the second leg of the journey .

When the applicant arrived in the hospital he was fully conscious , and able to communicate in NORP . PERSON asked him questions concerning his meeting with PERSON and PERSON and the selling of drugs . He noted the answers on a hospital form .

The applicant was successively examined by PERSON , PERSON and PERSON in ORG on TIME CARDINAL DATE .

On his admission to the hospital , the applicant had bruises on the face , a clean laceration to the ear , a clean laceration to the buttock , parallel injuries to the feet and long , linear , clean , uninterrupted injuries to the back in a quasi - geometrical pattern .

On DATE officers of the GPE police force started an investigation into the case .

On TIME , ORG held a hearing in ORG in the presence of the applicant . The judge , relying on the existence of a reasonable suspicion , the risk of absconding , the number of witnesses to be interviewed by the police and the severity of the charges , remanded the applicant in custody for DATE .

On DATE CARDINAL police officers requested and obtained Dr Orphanidou 's permission to question the applicant . The police officers , one of whom spoke NORP , informed the applicant that he was suspected of drug trafficking . The applicant signed a statement .

On DATE the applicant was examined by PERSON .

On DATE the applicant met his lawyers , Mr PERSON , who practised in the government - controlled area , and Mr GPE and ORG , who had come from the northern part . The meeting took place in the applicant 's room in ORG in the presence of police officers .

On DATE the police sought and obtained permission by Dr Hatziharu to examine the applicant . The applicant signed a supplementary statement .

On DATE the applicant was transported to ORG .

On DATE the applicant was visited by CARDINAL members of ORG in GPE ( ORG ) : the ORG Senior Medical Officer , Lieutenant - Commander PERSON , and PERSON of ORG .

On DATE ORG held a hearing in FAC . The applicant was assisted by an interpreter and was represented by PERSON . The judge , considering that the police had used the first warrant properly and that it was necessary that the detention should be continued for the police to be able to complete their investigation , remanded the applicant in custody for DATE .

On DATE the applicant was transferred to GPE police station . On DATE he received a visit there by his wife , PERSON , PERSON and Lieutenant - Colonel PERSON , Chief Humanitarian Officer of ORG .

CARDINAL

On DATE the applicant appeared before ORG . He was represented by CARDINAL counsel , PERSON and Mr PERSON , the latter practising in the northern part . The charges were read out . The Attorney - General informed the court in writing that , given that there had been a police investigation , no preliminary inquiry was necessary . The police submitted the case file , which had also been sent to the applicant 's lawyers . The applicant 's lawyers stated that they reserved their position as to the applicant 's defence . They also stated for the record that the applicant had been ill - treated during his arrest and transport to Larnaka police headquarters . The court committed the applicant for trial on DATE . The applicant 's lawyers asked for his provisional release . The court ordered his continued detention because of the risk of absconding , the severity of the charges he was facing and the possibility that he would be convicted .

The applicant was transferred to FAC . On DATE he was visited by PERSON , a private practitioner from the northern part .

On DATE PERSON , PERSON , Mr NORP , PERSON and PERSON of KIP were rewarded with a promotion for their contribution to the applicant 's arrest .

On DATE Lieutenant - Colonel Tereso informed the Presidential Commissioner for Humanitarian Affairs of GPE of the following :

“ On DATE , DATE after his arrest , the ORG Senior Medical Officer examined Mr Yusuf [ see paragraph CARDINAL below ] at ORG and made the following observations : His head and face were swollen with many bruises on his cheeks and lips . His forehead was bruised with CARDINAL recent scars . His eyes were bloodshot , swollen and discoloured . He had a cut on his left ear which was recently stitched . This wound may have been inflicted with a knife or a similar sharp object . He had a superficial wound to his right wrist which was caused by his handcuffs . He had abrasions to his left forearm , right shoulder and both knees which could indicate an involvement in a fight or a struggle . He had CARDINAL cuts on his right buttock which were QUANTITY and QUANTITY long and recently stitched . These wounds were probably inflicted with a knife or sharp object . On his back he had many superficial , MONEY , particularly in his lower lumbar region . These scars on his back may have been caused by whipping or beating . He complained of a pain in his abdomen but it must have been muscular pain because the abdomen did not show signs of internal injury . Such muscular pain could be consistent with punching or kicking . PERSON was handcuffed to his hospital bed . It is the considered medical opinion [ sic ] that his injuries could not have been self - inflicted and that his injuries are consistent with being ill - treated in a fight or severely beaten , the condition of his wounds suggest that they were inflicted during DATE and his injuries indicated that they may have occurred over a period of time as his wounds were at different stages of healing . ”

On DATE the ORG filed with ORG a nolle prosequi in the applicant 's case , in accordance with LAW .

The applicant was released on DATE . Before his release he signed the following complaint to ORG :

“ I , the undersigned PERSON ( PERSON ) , hereby complain that as I was working in my market garden I was arrested by NORP policemen and tortured . On arresting me they hit me over the head with a baton or a heavy metal or wooden object . They kicked and punched me in the abdomen . They stabbed me CARDINAL or CARDINAL times in the buttocks with a knife . I was also injured . They cut off my ear with a knife . CARDINAL men attacked me and beat me . I lost consciousness . When I came to , they were cutting the soles of my feet with a knife or razor blade . I was screaming with pain . They hit me in the face and wounded me under the left eye . Blood started to flow from the wound . I was injured on the forehead , which also began to bleed . Someone ( a policeman ) thrust his fingers into my eyes as hard as he could . They did n't stop kicking me . CARDINAL of them hit me with his gun . I had injuries to my shoulders , which also began to bleed . They split my lips . My left eye was swollen up so much that I could no longer see . I was unable to speak and have absolutely no recollection of them taking a statement from me at the hospital . I therefore complain about all of these acts of torture and inhuman acts which they inflicted on me and respectfully request you to open an investigation . ORG am at your disposal for any further information on this subject . ”

The complaint was countersigned by a ORG officer .

The applicant returned to the northern part immediately . On DATE he was visited by a journalist who photographed his wounds .

On DATE there was a hearing before ORG . The prosecution did not appear . The applicant , who was not present , was represented by PERSON , who declared that he spoke NORP . The court found that , given the nolle prosequi filed by the Attorney - General , the applicant was discharged .

Some time after the applicant 's release the PERSON magazine published in its DATE issue the following statement by the applicant :

“ I grow fruit and vegetables that are irrigated in a market garden to which I hold title . On DATE , towards TIME , I went there to turn off the irrigation system , which is near the greenhouse . As I went past the apparatus , I saw CARDINAL people coming towards me . When they approached , they said to me in NORP : ' Stay where you are . Police . ' I realised that they meant me harm and started to run to the village . As I did so , they began to fire at me with automatic weapons equipped with silencers . I heard a shot fly past my head and immediately dropped to the ground . At that point they set about me . They did n't say anything . They hit me . At some point I looked up and saw that there were CARDINAL of them beating me . They did so for a long time . Then I passed out . At TIME I received a shock . I do n't remember whether they used an electric baton or gas . I was semiconscious . In the meantime , they had dragged me and thrown me into the back of a jeep . When it started up , they continued to hit me . Then they began to torture me somewhere ; I did n't know where we were . They said that I was an MİT [ the NORP national intelligence agency ] agent , asked me whether there were other agents in the area , from whom I received my orders and all sorts of absurd questions of that kind while continuing to beat me without respite . At some point , a masked man arrived with a cutting instrument , something like a knife . He said that if I did n't speak he would cut my ear off , that if I did n't speak he would drink my blood . I must have blacked out as , when I came to , he was cutting the soles of my feet with a cutting instrument . I could n't see because I was tied up . I was in such pain that I passed out several times . Each time I came to , the torture would start up again . At some stage they laid me out on my back and pushed something like a bayonet into the upper side of my thigh . I screamed and passed out again . They carried on torturing me like that . I could n't cry out any more . But they continued to torture me like that . When I came to for the last time , I realised that I was somewhere else . They were no longer hitting or cutting me . I could n't see out of CARDINAL eye at all , but with the other , which was injured , I tried to make out where I was .

Later , I was told that after the torture session I was taken to ORG , but the hospital authorities , seeing how serious my condition was , had me transferred to ORG . I have no recollection of that whatsoever . I do not recall being transferred from PERSON to GPE . I have no idea how DATE went by in the meantime . They gave me painkilling injections . At some stage they put a table and chairs in my room at the hospital . CARDINAL police officers and a judge then came in . When the judge saw the situation he left the room . As he was leaving , I heard him say something about a lawyer . As I was later to learn , it was decided that I was under arrest . DATE the police officers again brought a table and chairs into my room at the hospital . I remember the second time better . I was lying in my bed . I had one hand handcuffed to the bed and an intravenous drip attached to my other arm . My feet were of course also attached to the bed . On this occasion the judge arrived with some lawyers . There were CARDINAL people in the room , most of them policemen . The judge had ordered that I be held in detention pending trial for DATE so that questioning could continue . As he left the room , the judge turned to me with a look of pity before walking out . ... ”

The statement was accompanied by CARDINAL of the photographs of the applicant 's wounds taken on DATE . At least some of them had been “ retouched ” .

On DATE the ORG met the applicant at FAC , a hotel situated in the buffer - zone in GPE . The applicant was assisted by Mr PERSON .

On DATE the applicant addressed the following letter to the President of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) :

“ When I was attacked by a team of armed NORP - Cypriot policemen in my field in the buffer - zone , I was first beaten indiscriminately until my senses were numbed and I passed out . When I regained consciousness , I was in a small room surrounded by uniformed men who verbally abused , intimidated and threatened me . There the NORP - Cypriot police asked me to sign a statement to the effect that ' President PERSON is intransigent , does not want peace and as a leader is misleading the NORP - Cypriot people ' . In return , I was offered money , a house and a job in what they called ' the free areas ' , i.e. GPE . I refused without hesitation . They got angry and started hitting and beating me again . I thought I would be beaten to death . I was punched and slapped across my face . Suddenly one policeman held my head tightly and another cut my ear . I totally blacked out . I came to my senses in a hospital . I was on a stretcher , chained and handcuffed . Again several policemen in civilian clothes approached me , their mouths full of profanity and threats , and again started hitting . They also pressed their hands heavily on my eyes , which really hurt . As a result of such pressure my eyes got bloodshot . In the middle of this ordeal a NORP - Cypriot nurse protested . She was shouting : ' This is enough ... do not hit ... he is wounded ... you brought him here for treatment but you are killing him . He is a human being . This is a sin , even if he is a NORP ... do we have the right to treat him this way , a wounded and chained man ... ' The police left me and walked towards the nurse . The NORP - Cypriot police were obviously well - trained and professional in torture methods . I do n't even recall if and when I gave a statement . But I recall that twice the NORP - Cypriot police made me sign false confession papers accepting NORP - Cypriot accusations . I was branded a ' dangerous smuggler ' and a NORP - Cypriot ' spy ' . In the hospital I was in chains , handcuffed to a bed and put on a drip and continuously given painkillers . The pain was excruciating . For a long time my bruised jaw hurt badly . I had difficulty even drinking water , let alone chewing . The NORP - Cypriot court was brought twice to the hospital , once on a DATE , because they were ashamed to publicly take me to court . ... ”

On DATE the President of the ORG requested the applicant to keep him informed of the ORG 's investigation .

The ORG , in the course of his investigation , questioned , among others , the police officers involved in the applicant 's arrest , the NORP - Cypriot doctors who had examined the applicant and PERSON . On DATE he issued his report . In respect of his CARDINAL DATE meeting with the applicant he recorded the following :

“ At the meeting , PERSON said that TIME on DATE , when he was busy watering his tomatoes in his vegetable garden in the GPE region , CARDINAL strangers in civilian clothes approached him , crossed the ' border ' and threw him to the ground without uttering a word . Afterwards , when he next opened his eyes , he found himself in hospital . He said that he had probably received a blow to the head in order to be knocked out . He had not tried to get away . Despite my repeated questions , Mr Egmez has not provided me with details regarding what exactly happened , the circumstances or what had happened to him . He said that he did not remember . He has also said that he has no recollection of having made a deposition on DATE ( DATE after his arrest ) , of being visited by his CARDINAL lawyers ( Mr PERSON and CARDINAL NORP - Cypriot lawyers ) at ORG DATE , DATE , of making a further deposition that same day or of being transferred to ORG . As I asked him how he had remembered all he had put in the letter [ he had addressed to the Ombudsman on DATE ] , he replied : ' What I know is that I was in physical pain but when I found myself in hospital and came to I still had blood running down by my eye . That was when I realised I had injuries to my ear , the soles of my feet and elsewhere on my body . The cuts to my feet were so bad that I am still unable to walk . ' At the end of our meeting , PERSON handed me some items , including a copy of the magazine entitled PERSON , first year , no . CARDINAL , DATE . ”

According to the ORG 's report , the applicant had been ill - treated on the following CARDINAL occasions : first , by a group of MMAD officers , amongst whom PERSON , PERSON and Mr Ioannidis , during his arrest after he had been immobilised and , secondly , in the car that transported him from the place of arrest to PERSON police headquarters when he was in the company of PERSON , Mr NORP and PERSON ORG . The ORG considered that , on both occasions , the officers involved had acted with unprecedented brutality and without any respect for human life and dignity . The ORG transmitted his report to ORG , ORG and the Attorney - General , in accordance with section CARDINAL(CARDINAL ) of the Laws on the ORG .

No criminal or other proceedings were instituted against any of the police officers involved in the applicant 's arrest .

The Government accepted the facts as established by ORG . They added that it was the ORG who had encouraged the applicant to make the complaint to the ORG and who had then transmitted the complaint , together with ORG letter of CARDINAL DATE , to the ORG on DATE .

The applicant questioned the ORG 's findings of fact . In his view , the delegates had approached his case with a particular state of mind . He pointed out in this connection that , during the taking of evidence , they treated him as a drug trafficker , as opposed to a person suspected of drug - related offences . The applicant also submitted that the delegates were wrong in admitting vague descriptions of the events by the police officers involved in the incident . Finally , he pointed out that the delegates failed to pursue certain lines of inquiry .

The applicant 's version was that he was not involved in drug trafficking . He was arrested in the buffer - zone by a large number of police officers in the presence of journalists . The police officers subjected him to physical violence before his admission to hospital in order for him to make a confession . He was under the influence of drugs when questioned . Finally , the decisions remanding him custody did not contain reasons .

The applicant further claimed that , as a result of the ill - treatment to which he had been subjected , he was unable to work . He had developed serious psychological problems – for example , he could not submit himself to any external authority – , could not stand and had become bulimic and diabetic . In support of his allegations he submitted CARDINAL reports by PERSON , a psychiatrist from the northern part , CARDINAL dated DATE to the effect that the applicant suffered from “ post - traumatic reaction ” and needed lengthy treatment , and another dated DATE to the effect that “ having considered the treatment applied and the lengthy period that had passed since then , [ the doctor was ] of the opinion that the applicant 's illness had become permanent ” .

Article CARDINAL § CARDINAL of the LAW of Cyprus provides :

“ The Attorney - General of the Republic shall have power , exercisable at his discretion in the public interest , to institute , conduct , take over and continue or discontinue any proceedings of an offence against any person in the Republic . Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions . ”

Article CARDINAL of the LAW provides :

“ The Republic shall be liable for any wrongful act or omission causing damage committed in the exercise or purported exercise of the duties of officers or authorities of the Republic . A law shall regulate such liability . ”

Section CARDINAL of the DATE to DATE Laws on the ORG provides :

“ ( CARDINAL ) If at the end of an inquiry ... the Ombudsman forms the conclusion that prejudice or injustice has been caused to the person concerned , he includes in his report a recommendation to the competent authority for the reparation of the prejudice or the redressing of the injustice ... ”

“ ( CARDINAL ) Any other provisions in this PERSON notwithstanding , if at the end of the inquiry ... the ORG reaches the conclusion that the action complained of violated the human rights of the person concerned and could constitute a criminal offence , he transmits a copy of [ his ] report ... to ORG , ORG and the Attorney - General of the Republic . ”

Section CARDINAL(CARDINAL ) of DATE Laws on the ORG provides :

“ No testimony or reply to a question or statement given or made by an official or any other person in the course of an inquiry by the ORG can be used as evidence against another person in court or in another inquiry or procedure . ”

In most criminal cases the Attorney - General gives his consent for a preliminary inquiry not to take place . In such cases , a copy of the statement of each prosecution witness is served on the accused or his lawyer . The court then decides whether to commit or not without a preliminary inquiry .