Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

From CARDINAL DATE the applicant served as a police officer in ORG FAC uprava karlovačka ) , namely as the Assistant Chief of the PERSON sector for State border security . On DATE he was called in to a police station by his colleagues and then questioned in connection with a suspicion that he had acted as an intermediary in procuring a forged certificate on citizenship for a certain GPE In a written statement of CARDINAL DATE made by the police the applicant confessed to having acted as an intermediary in procuring an illegal certificate of NORP citizenship for GPE The police also took written statements from CARDINAL other persons , GPE and GPE , without the applicant being present . These statements were not communicated to the applicant .

On CARDINAL DATE the Chief Officer of ORG asked that disciplinary proceedings be instituted against the applicant on suspicion that he had committed a serious breach of work discipline . This suspicion was based on a criminal complaint meanwhile lodged against the applicant , his own written confession and statements of several other individuals given before the police .

On DATE disciplinary proceedings were instituted against the applicant before ORG . A hearing was held on DATE in the presence of the applicant and his counsel . At the hearing the applicant 's confession of CARDINAL DATE was read out . The applicant stated that he had been questioned by his colleagues in a police station about the case of GPE The questioning had lasted TIME , and at the end he had signed the statement because he had not wanted to be questioned any longer . The applicant further stated that he knew GPE but that he had not participated in any dealings concerning his certificate of citizenship . He also explained that immediately afterwards he had lodged an objection on his questioning with the officer on duty . In his closing arguments the applicant 's defence counsel , inter alia , objected that the statements of ORG had not been read out and that therefore the defence had no opportunity to analyse these statements because they did not know their content .

In a judgment of DATE ORG found it established that the applicant had acted as an intermediary between GPE and CARDINAL other persons in order to obtain a forged certificate of NORP citizenship for GPE and that he had passed on a sum of CARDINAL NORP Marks ( ORG ) from GPE to a certain ORG who had passed it on to a certain ORG , a clerk in the citizenship registry , asking the latter to make a forged certificate . The operative part of the judgment reads :

“ PERSON ...

is guilty

because during DATE he took from GPE ... a sum of DEM CARDINAL,CARDINAL and gave it to GPE ... , so that the latter would act as a further intermediary in bribing ORG ... to issue a forged certificate of NORP citizenship in the name of GPE , which ORG did on DATE ,

by which he committed a serious breach of work discipline under LAW paragraph CARDINAL(CARDINAL ) of LAW ( Zakon o unutarnjim poslovima ) and section CARDINAL paragraph CARDINAL(CARDINAL ) of the Rules on employment of the employees of ORG of GPE ,

Owing to which a disciplinary measure under LAW of LAW

termination of employment

is to be applied . ”

The judgment was based on the applicant 's written statement of CARDINAL DATE in which he confessed and the CARDINAL other statements given to the police by GPE and GPE The applicant 's contention , that he had signed the statement under duress since he had been interviewed by his colleagues for the whole night , that the notes of the interview had been amended several times and that he had been given no right such as to make a telephone call , was dismissed . The disciplinary court ordered the applicant 's dismissal . The reasoning of the judgment reads as follows :

“ Through a request for the institution of disciplinary proceedings submitted by the Chief of ORG ... of CARDINAL DATE the defendant PERSON was charged with a serious breach of work discipline , specified as to its factual background and legal characterisation in the operative part of this judgment .

ORG of ORG initiated proceedings by its decision ... of DATE .

A decision by the Chief of ORG ... of CARDINAL DATE removed PERSON from his duties in ORG with effect from DATE on account of a reasonable suspicion that he had committed a serious breach of work discipline by committing a criminal offence under LAW paragraph CARDINAL of LAW of GPE , and that his further service would harm the interests of the service .

During the disciplinary proceedings the president of the court read aloud the written statement of PERSON of CARDINAL DATE .

In his defence PERSON does not accept his written statement . He adds that he was being questioned by the police , having being called on the false pretext that he was needed in connection with some customs business . They did not secure his rights such as using the telephone and so on .

He states that he knows GPE but that he was not present at any dealings in connection with a certificate of citizenship or the taking of any money .

Furthermore , he retracts his written statement which he signed because he was tired of being browbeaten by his colleague policemen who questioned him , [ he wanted them ] to cease psychologically ill - treating him .

For example , the record of the interview reads that his superior was present , which is untrue because his superior entered [ the interview room ] for TIME only and then immediately left and he did not see him again that day , nor was he present when he signed the written statement .

He also adds that immediately after the interview he drew up a statement concerning the circumstances of the investigation and submitted it to an officer .

In defence of defendant PERSON , his counsel PERSON pointed to grave breaches of procedure , since the statement and records of interviews with the police were admitted as evidence . He also objected that a criminal complaint against the defendant was taken as proof that he had committed [ the offence ] he has been charged with .

After deliberations and voting ORG dismissed the objections by the defence .

During the proceedings ORG consulted the written statements given by PERSON and recorded under no . CARDINAL - CARDINAL - CARDINAL/CARDINAL - CARDINAL on DATE ; by PERSON recorded under no . CARDINAL - CARDINAL - CARDINAL/CARDINAL - CARDINAL on DATE ; by GPE recorded under no . CARDINAL - CARDINAL - CARDINAL/CARDINAL - CARDINAL on CARDINAL DATE and also a criminal complaint against PERSON , no . CARDINAL - CARDINAL - CARDINAL/CARDINAL-K-CARDINAL/CARDINALf CARDINAL DATE .

GPE was not invited to the hearing because his permission to stay in GPE had been terminated by a decision ... of CARDINAL DATE , upheld by a decision no . ... of DATE . [ A measure of ] prohibition of entry [ on the territory of ] GPE has been applied for the period of DATE .

After the assessment of all relevant facts established in the proceedings the panel of ORG established that the defendant PERSON is guilty of a serious breach as set out in the operative part of the judgment .

By such conduct the defendant violated existing laws and rules of service since he had committed acts irreconcilable with the police service .

While assessing the disciplinary measure [ to be applied ] the panel of ORG took as aggravating the fact that the defendant had already been disciplinary punished .

In view of the above , it has been decided as set out in the operative part of the judgment . ”

On a subsequent appeal by the applicant against the judgment of DATE , ORG of ORG ( GPE disciplinski sud GPE unutarnjih poslova PERSON ) upheld the first instance judgment on DATE but altered the qualification of the offence finding that the act in question constituted an offence under LAW paragraph CARDINAL ( CARDINAL and DATE ) of LAW which refer to inappropriate conduct , rather than paragraph CARDINAL(CARDINAL ) , on the ground that :

“ ... no one , including the defendant , can be considered liable for a criminal offence as long as [ his or her liability ] has not been established in a final judgment ( LAW ) . ”

The applicant then lodged a complaint against the disciplinary courts ' judgments with ORG ( Upravni sud PERSON ) whereby he complained , inter alia , of the fact that the statements given to the police could not have served as evidence in the disciplinary proceedings against him . He also complained that he had no access to the evidence relied on by the disciplinary courts , namely the statements given by CARDINAL persons to the police . The complaint was dismissed on DATE on the ground that in the disciplinary proceedings it had been established that the applicant had committed the offence in question and that the use of the impugned statements had been correct .

On DATE , i.e. parallel to the institution of the disciplinary proceedings , the NORP State Attorney 's Office ( Općinsko državno odvjetništvo u PERSON ) lodged a request that an investigation be opened against the applicant and CARDINAL other individuals on a suspicion that they had acted as intermediaries between GPE and a clerk of the registry of citizens , passing a sum of DEM CARDINAL,CARDINAL to the latter in order to issue a certificate of NORP citizenship for GPE and thus committed a criminal offence under LAW paragraph CARDINAL of LAW in connection with LAW .

During the investigation the suspects and a witness were heard by an investigation judge . The applicant remained silent .

On DATE the ORG sought that the criminal investigation against the applicant be discontinued on the ground that the statement given by GPE showed that the applicant had procured him a certificate of NORP citizenship but that he had given no money for that to the applicant . Hence , there was insufficient evidence that the applicant had committed a criminal offence .

On DATE an investigation judge of ORG discontinued the criminal investigation against the applicant owing to the above request of the ORG Attorney 's ORG .

On DATE the applicant requested the reopening of the disciplinary proceedings against him . He argued in support of his request that the factual basis for disciplinary proceedings as well as the criminal proceedings was identical and as the latter had been discontinued due to lack of evidence there would likewise be no basis upon which disciplinary sanctions ought to be imposed .

On DATE ORG declared the request inadmissible , finding the fact that the criminal proceedings against the applicant had been discontinued irrelevant in respect of the decision on his disciplinary responsibility . This decision was upheld by ORG on DATE .

The applicant then lodged a complaint with ORG which was dismissed on DATE . His subsequent constitutional complaint was declared inadmissible on DATE as lodged out of time .

On an unspecified date , following the dismissal of his administrative complaint in the disciplinary proceedings against him , the applicant lodged a constitutional complaint against ORG judgment of CARDINAL DATE , as well as several supplementary submissions complaining that the disciplinary proceedings against him had been unfair . He argued , inter alia , that the disciplinary courts found that he had committed a criminal offence although he had not been convicted in the criminal proceedings against him which had been discontinued . He further argued that the statement he had made to the police was not a valid evidence under domestic law and as such should have been removed and that the statements given to the police , relied on in finding him disciplinary responsible , had never been communicated to him , nor had they been produced at the hearing before the disciplinary courts .

On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant 's complaint . The relevant part of that decision reads as follows :

“ .. the Constitutional Court finds it useful to comment on the applicant 's arguments concerning the legal nature of disciplinary proceedings .

First and foremost , the applicant contends that the State Attorney 's ORG discontinued criminal prosecution against him for lack of evidence that he had committed a criminal offence consisting in the same acts [ as those serving as a basis ] for the judgments [ adopted ] in the disciplinary proceedings . ORG emphasises that the ground for the applicant 's [ disciplinary ] conviction and the imposed disciplinary measure was his liability for serious breaches of work discipline under LAW paragraph CARDINAL ( CARDINAL and DATE ) of LAW , and not his liability for a criminal offence .

Criminal and disciplinary liabilities are CARDINAL separate [ types ] of liability , which have to be established in CARDINAL entirely independent sets of proceedings with no mutual influence . Liability for serious breaches of work discipline may be established even without a decision of a criminal court , irrespective of the fact that a breach of working duty may at the same time amount to a criminal offence . [ The purpose of ] disciplinary proceedings is to establish the elements constituting a breach of work discipline . It is not necessary that at the same time the elements of a criminal offence have been satisfied , and in that respect the disciplinary liability is wider than the criminal .

Furthermore , it is to be stressed that although disciplinary proceedings are actually [ by their nature ] criminal proceedings sui generis , they also bear strong features of the administrative proceedings .

There is in principle a lesser risk as to the scope of possible violations of human rights in disciplinary proceedings than in criminal proceedings . Also , the consequences of disciplinary proceedings differ significantly from those of criminal proceedings . Therefore , the application of the [ rules of ] Code of Criminal Procedure in disciplinary proceedings is only subsidiary , as worded in CARDINAL paragraph CARDINAL of the Act on Civil Servants ( Official Gazette no . CARDINAL ) : ' In the proceedings concerning a serious breach of official duty provisions of LAW shall be applied appropriately ... ' . Subsidiary application of LAW procedure means that its provisions are to be applied according to the nature of the disciplinary proceedings , that is to say that their application is neither obligatory in each instance nor they have to be applied literally .

The above is applicable in respect of the exclusion of the official notes made by the police [ to be used ] as evidence in criminal proceedings . The official police notes can not serve as evidence in criminal proceedings owing to the special nature of those proceedings . However , such notes are not illegal evidence ab initio , both from the standpoint of some potential criminal proceedings or from that of disciplinary proceedings . They become illegal evidence only if actually used in criminal proceedings . Their use for other ( lawful ) purposes is not prohibited . ”

Article CARDINAL paragraph CARDINAL of LAW ( Kaznenini zakon PERSON , ORG no . CARDINAL of DATE ) reads :

( CARDINAL ) Whoever gives or promises a gift or other gain to an official in order to perform an official or another act within his or her authority which he or she should not perform or to omit an official or other act which an official is obliged to do , or who acts as an intermediary at such bribing of an official shall be sentenced to imprisonment for a term from DATE . ”

The relevant provisions of LAW ( ORG nos . DATE , DATE , DATE , DATE , CARDINAL Zakon o unutarnjim poslovima ) read as follows :

“ The following shall particularly be considered a serious breach of work discipline :

inappropriate conduct during or outside TIME of service ;

any criminal offence incompatible with entering employment with ORG [ of ORG ] ;

actions incompatible with the duties of an employee of ORG [ of ORG ] ... ”

“ Breaches of work discipline may entail the following measures :

public warning ,

a fine ,

dismissal from work .

The relevant part of section ORG ) of the Act on Civil Servants ( Official Gazette no . CARDINAL , Zakon o državnim službenicima i namještenicima ) reads :

“ In the proceedings concerning a serious breach of official duty provisions of LAW shall be applied appropriately ... ”


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants were born in DATE and DATE respectively and live in GPE .

In DATE the biological mother of PERSON , then DATE and born out of wedlock , set her apartment on fire after having consumed drugs . The mother and her child were rescued and , on DATE , ORG ( ORG für ORG und Familie ) handed PERSON over to the applicants as foster parents .

The applicants subsequently tried to obtain custody of PERSON and wanted to adopt him . PERSON ’s mother recovered and was at first allowed access to visit her son . She then tried to obtain custody of PERSON , which led to arguments between her and the applicants . Since these disputes were to the detriment of PERSON , he was given to a “ crisis foster family ” ( Krisenpflegefamilie ) on DATE for DATE . After that period PERSON was handed over to his biological mother , who obtained provisional custody of him following a decision of ORG ( GPE ) on DATE . This decision entered into force on DATE , when ORG rejected an appeal by the applicants ( Revisionsrekurs ) .

In the meantime on DATE the applicants requested the right to visit F. Thereupon ORG asked ORG for their observations on the applicants’ request .

ORG submitted observations on DATE , stating that because of the long - lasting relationship between PERSON and the applicants it would be inappropriate not to allow access to the foster parents .

On DATE the ORG heard the biological mother , who opposed the granting of visiting rights to the applicants because PERSON was in the process of getting used to her again .

On DATE the applicants requested the acceleration of the proceedings ( PERSON ) under LAW of LAW .

On DATE ORG ( Wiener Jugendgerichtshilfe ) submitted their observations to ORG . In DATE both parties repeatedly filed written observations on that report . The applicants also requested that an expert for child psychology be appointed .

On DATE the applicants complained about the length of the proceedings and requested the opinion of an expert on child psychology . The biological mother objected to this request .

On DATE ORG asked the applicants whether they were maintaining their request for the appointment of an expert , given that meanwhile a report by the doctor with whom PERSON had had therapy had been obtained . On DATE the applicants informed the court that they insisted on the appointment of an expert and proposed further questions to be put to the expert appointed .

On DATE the ORG designated Dr. PERSON . as the expert . The biological mother filed objections against PERSON .

NORP In DATE the court file was transferred to ORG , which was dealing with an appeal lodged by the applicants in the custody proceedings concerning PERSON lodged on DATE . On an unspecified date ORG transferred the file to ORG as it considered that that court was competent to decide on the appeal . ORG did so on DATE ; the file was then forwarded to ORG , which had meanwhile become competent to deal with custody and visiting - rights proceedings .

On DATE PERSON asked ORG for leave to be discharged from the duty to prepare an expert report . He submitted that a report was not feasible because he had not been given the opportunity to examine F. thoroughly by PERSON ’s mother .

ORG held a hearing with the parties on DATE in order to discuss how to proceed further with the case . The judge informed the applicants and the biological mother that he would ask ORG of ORG ( ORG ) for a final report on the issue of visiting rights .

P. , who was the officer in charge at ORG of ORG , submitted the report on DATE . She recommended refusing visiting rights to the applicants , because the reestablishment of contact with PERSON after it had been interrupted for DATE might harm the psychological stability of the child . On DATE and DATE the parties submitted their comments on that report .

On DATE Dr. PERSON of ORG ( Kinder- und jugendpsychologischer ORG ) also suggested that the applicants should not be granted access to PERSON , explaining that PERSON was aware of the difficulties between his mother and the applicants and therefore , as a protective measure , had said that he did not want to see the applicants . Dr. PERSON further stated that not seeing the applicants was not to the detriment of the child . The applicants submitted observations regarding these recommendations .

On DATE ORG rejected the ORG request to visit PERSON and found that failure to provide for personal contact ( ORG PERSON ) between the applicants and PERSON did not endanger his well - being .

It found that under LAW ( CARDINAL ) of LAW a court , upon the request of a parent , the child , a youth welfare body or of its own motion had to take the necessary measures if failure to provide for personal contact between the child and the third person would endanger his or her well - being . Third persons , in contrast to parents or grandparents , had no legal right to be granted contact rights and consequently no legal standing in related court proceedings . They could merely suggest to the court ( anregen ) that it examine the matter of its own motion , and a court could only grant contact rights if failure to do so would endanger the child ’s well - being .

Taking the ORG request as such a suggestion , visiting rights could not be granted . From all the material in the possession of ORG it was evident that PERSON was vehemently opposed to meeting the applicants , while at the same time he had developed a close and positive relationship with his mother . ORG acknowledged that the applicants had a genuine concern for PERSON ’s well - being ; however , in the present situation the interests of the applicants did not coincide with the child ’s best interests . Given that F. had not been in contact with his foster parents for DATE , ORG would follow the conclusions in the reports of P. , from ORG of ORG , and Dr. PERSON , from ORG . It was quite possible that immediately after PERSON had been placed with the “ crisis foster family ” in DATE the granting of visiting rights to the applicants might have been useful . However , this was no longer the case and it now served the best interests of the child , who was living with his biological mother , not to put him back in a situation of divided loyalties ( PERSON ) between her and his “ former family ” , the applicants .

On DATE the applicants appealed against ORG decision . They argued that the refusal of visiting rights breached their rights under LAW .

ORG dismissed the applicants’ appeal on DATE . It found that foster parents could file requests in proceedings concerning the foster child and also had the right to appeal against decisions . The status of a foster parent was , however , a matter which depended rather on whether the person actually cared for the child and whether a lasting emotional link similar to the CARDINAL between parents and children had developed . Even though the applicants had lived with PERSON for DATE in the same household with the intent to develop such emotional ties , it was actually DATE since they had had care of him and they could now no longer be considered his foster parents . Nevertheless , their appeal had to be considered on its merits , and , for the reasons given by ORG , granting visiting rights to them was not in the best interests of F. The appeal was therefore unfounded .

On DATE ORG dismissed an extraordinary appeal by the applicant ( außerordentlicher Revisionsrekurs ) . That decision was served on the applicants’ counsel on DATE .

Article CARDINAL of LAW ( Allgemeines Bürgerliches Gesetzbuch ) reads as follows :

“ ( CARDINAL ) If CARDINAL parent does not live in a common household with a minor child , then the child and this parent have the right to be in personal contact with each other . The exercise of this right shall be regulated by mutual consent between the child and the parents . Whenever such an agreement can not be reached , the court shall regulate the exercise of this right in a manner appropriate for the welfare of the child , upon an application by the child or a parent , giving due consideration to the needs and wishes of the child .

( CARDINAL ) NORP If necessary , the court shall restrict or not permit the exercise of the right to personal contact , especially if the authorised parent does not comply with his / her obligation under LAW .

( CARDINAL ) Paragraphs ( CARDINAL ) and ( CARDINAL ) shall apply by analogy to the relationship between grandchildren and their grandparents . However , the exercise of the right of grandparents shall also be restricted or not permitted to such an extent that this would otherwise disturb the family life of the parents ( a parent ) or their relationship to the child .

( CARDINAL ) Where the absence of personal contact between the minor child and a third party that is ready to engage in such contact may jeopardise the child ’s welfare , the court shall issue the disposition necessary to regulate the personal contact upon an application by the child , a parent , the youth welfare agency , or of its own motion . ”


Violation of Art. 3 (in case of expulsion to Tunisia);Violation of Art. 5-1;Violation of Art. 3 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and is currently held in the ORG Admission and ORG in GPE .

In DATE the applicant left his home country and , via GPE , arrived in GPE , where he received religious training . DATE after his arrival in GPE , the applicant was detained for DATE under ORG policy of detaining and deporting nationals of NORP countries . After his release from detention in GPE , the applicant left that country in DATE and arrived in GPE . He then went to Hatay , a province in the south of GPE , where he began working . His identity documents were stolen and subsequently the applicant obtained a false passport .

On DATE the applicant was arrested by police officers from the anti - terrorist branch of the NORP police headquarters on suspicion of membership of an international terrorist organisation , namely ORG . The search carried out in the apartment he had shared with another person revealed some materials used for manufacturing bombs . During his questioning by the police , in the presence of an interpreter , the applicant stated that he was not a member of ORG but of ORG , an illegal organisation in GPE .

On DATE the applicant made statements before the ORG public prosecutor and subsequently the ORG , which remanded the applicant in custody .

On DATE the applicant lodged an objection against the detention order , which was dismissed on DATE .

On DATE the ORG public prosecutor filed a bill of indictment with ORG charging the applicant with membership of ORG under LAW and section CARDINAL of Law no . CARDINAL . In the indictment the public prosecutor noted , inter alia , that an arrest warrant had been issued in respect of the applicant in GPE for membership of ORG and that the applicant had left his country for that reason in DATE .

On DATE ORG allowed the bill of indictment lodged against the applicant and decided to hold the first hearing on the merits of the case on DATE .

NORP On DATE the applicant made statements before ORG . He contended , inter alia , that he did not have any connection with ORG and that the material found in his apartment did not belong to him but to his flatmate .

On DATE the applicant 's representative requested the first - instance court to order the applicant 's continued detention . He submitted in this respect that the applicant had applied to both the NORP authorities and the ORG High Commissioner for Refugees ( ORG ) to be granted refugee status and that , if he were released , he might be deported to GPE . The applicant himself also requested that he be kept in detention until the outcome of his application for refugee status . On DATE , ORG ordered the applicant 's continued detention , taking into consideration the nature of the offence and the applicant 's request .

On DATE ORG ordered the applicant 's release pending trial .

On DATE ORG acquitted the applicant of the charge of membership of ORG .

Appeal proceedings are currently pending before ORG .

On DATE the applicant applied to ORG requesting asylum .

On DATE ORG dismissed this request . According to a document addressed to the ORG public prosecutor 's office by ORG on DATE , the applicant 's temporary asylum request was dismissed in view of the offences with which he had been charged and the fact that his presence in GPE constituted a threat to public safety and public order . It was considered that the applicant had not been sincere in his request but had attempted to use the temporary asylum system in order to avoid deportation to GPE .

On DATE the decision of the Ministry was served on the applicant . In the documents so served , he was told that he could lodge an objection with the Ministry against this decision within DATE .

On an unspecified date the applicant objected to the decision of CARDINAL DATE . On DATE he was notified that ORG had dismissed his objection . The decisions of DATE and CARDINAL DATE were served by a police officer who spoke LANGUAGE .

In the meantime , on CARDINAL DATE the applicant was recognised as a refugee under the ORG 's mandate .

On DATE the applicant was served with a deportation order .

On DATE the applicant addressed a petition to the GPE police headquarters . He maintained that his request for temporary asylum had been rejected on DATE and that he had learned that he would soon be deported to GPE . The applicant requested that his deportation be suspended since his lawyer intended to challenge the deportation order before the administrative courts .

On DATE the applicant 's lawyer lodged an application with ORG . He requested the setting - aside of the decision rejecting the applicant 's asylum request . The applicant 's representative further requested the setting - aside of the deportation order .

On DATE the applicant 's representative filed a petition with the GPE police headquarters and informed the latter of the application he had lodged with ORG . He requested the police not to deport the applicant .

On DATE ORG decided that it did not have jurisdiction over the case and transferred the petition to ORG .

On DATE ORG requested ORG to submit a copy of all documents relating to the applicant 's case .

On DATE ORG , after receiving the documents concerning the applicant , rejected the application , holding that the applicant had not complied with the time - limit of DATE stipulated in LAW ( Law no . CARDINAL ) . The first - instance court held that the applicant had been notified of the ORG 's decision rejecting his temporary asylum request and ordering his deportation on DATE , and that the applicant should have challenged this decision by DATE at the latest . The court noted that the applicant 's petition dated CARDINAL DATE to the GPE police headquarters and his application to the ORG would not stop the running of the DATE time - limit .

On DATE the applicant 's representative lodged an appeal against the decision of DATE . In his petition , the representative noted that the ORG 's decision rejecting the applicant 's objection had not been served on his lawyer , who had found the document dated DATE in the criminal case file by chance .

On DATE the applicant 's representative was informed by the president of ORG that he had failed to pay the court fees and that he had to pay a total of MONEY ( TRY ) by postal order within DATE . The representative was warned that if he failed to pay this sum , the applicant would be deemed to have waived his right of appeal .

On DATE the applicant 's representative effected the postal order and paid TRY CARDINAL .

On DATE ORG decided that the applicant had waived his right of appeal since his representative had failed to pay the ORG fees despite the warning .

On DATE the applicant ' representative appealed against the decision of DATE , claiming that he had paid the fees . He submitted a copy of the postal order in support of his petition .

On DATE ORG informed the applicant that his representative had failed to pay the ORG fees in relation to his appeal dated DATE .

On DATE the applicant 's lawyer paid TRY CARDINAL in court fees by way of a postal order .

Following the decision of ORG of DATE to release the applicant pending trial , the applicant was not released but was taken to the foreigners ' department at the GPE police headquarters .

On DATE the applicant was transferred to the PERSON police station in GPE .

On DATE the applicant 's representative sent a request to ORG for the applicant to be released from detention . In his request he noted that the applicant was being detained in a small cell and that on DATE ORG had indicated to ORG that the applicant should not be deported to GPE until further notice .

The applicant 's representative received no reply to his request .

Subsequently , on DATE he filed a complaint with the ORG public prosecutor 's office against the Minister of the ORG , the ORG Governor , the GPE police director , the director of the foreigners ' department at the GPE police headquarters and the director of the LOC police station . He requested the public prosecutor 's office to initiate an investigation into the persons concerned , alleging that they had unlawfully deprived the applicant of his liberty and that his detention in a small cell for DATE constituted ill - treatment . The representative noted in his request that there was no legal basis on which to detain the applicant , since asylum seekers were normally given temporary residence permits in GPE . He further submitted that the ventilation was inadequate in the cell . The applicant was completely isolated and there was no provision for outdoor exercise . Moreover , the applicant did not have access to a doctor . In particular , when he had had a toothache he was denied access to a dentist and had to take the medication that was given to him by police officers .

On DATE the ORG public prosecutor decided not to bring criminal proceedings against the Minister of the Interior , holding that he had not committed any offence as the applicant was being detained by the police with a view to his deportation .

On DATE the public prosecutor at ORG decided not to process the request from the applicant 's lawyer to bring proceedings against the ORG governor .

On DATE the applicant 's representative wrote to the department responsible for aliens , borders and asylum attached to ORG , to the GPE police headquarters and to ORG of ORG , requesting that his client be released from the PERSON police station .

In the meantime , DATE and DATE the applicant was examined and prescribed treatment at the ORG hospital on CARDINAL occasions . He was examined by an ophthalmologist , a dentist and a general practitioner in relation to his respiratory problems .

On DATE the applicant was transferred to the PERSON Admission and ORG .

On DATE the President of ORG of ORG sent a reply to the applicant 's representative informing him that the applicant was being detained pending the deportation procedure and that he had been transferred to the Kırklareli Foreigners ' Admission and Accommodation Centre .

On an unspecified date criminal proceedings were brought against the applicant and CARDINAL other persons in GPE on charges of membership of a terrorist organisation , aiding and abetting the organisation and providing financial support to that organisation . According to a document translated from LANGUAGE into NORP by the applicant , on DATE a NORP criminal court convicted him of membership of an illegal organisation and sentenced him to DATE imprisonment .

A description of the relevant domestic law and practice can be found in the case of GPE and GPE v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) .

The ORG standards concerning the conditions of detention of foreign nationals ( see the ORG standards , document no . ORG ) CARDINAL- DATE , page CARDINAL ) provide , in so far as relevant , as follows :

“ ... In certain countries , ORG delegations have found immigration detainees held in police stations for prolonged periods ( for DATE and , in certain cases , DATE ) , subject to mediocre material conditions of detention , deprived of any form of activity and on occasion obliged to share cells with criminal suspects . Such a situation is indefensible .

The ORG recognises that , in the very nature of things , immigration detainees may have to spend some time in an ordinary police detention facility . However , conditions in police stations will frequently - if not invariably - be inadequate for prolonged periods of detention . Consequently , the period of time spent by immigration detainees in such establishments should be kept to the absolute minimum . ”

A description of reports by ORG relating to the situation of ORG members can be found in PERSON v. GPE [ ORG ] ( no . CARDINAL , § § DATE , ECHR DATE ... ) .


CASE OF MARPA ZEELAND B.V. AND METAL WELDING B.V. v. THE NETHERLANDS

Violation of Art. 6-1 with regard to the fairness of the proceedings;Violation of Art. 6-1 with regard to the length of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant companies are limited liability companies established under the law of the GPE . They have their registered office in GPE .

At some stage in DATE , officials of ORG ( LOC Inlichtingen- en ORG , “ LOC ) instituted an investigation into activities of the applicant companies and their director , PERSON , as they suspected forgery ( valsheid in geschrifte ) and tax fraud . On DATE the ORG searched the premises of the applicant companies and seized documents and items belonging to the companies . That same day Mr PERSON was interviewed . The ORG ’s investigation was concluded on DATE . The official report of the investigation was completed on CARDINAL DATE . CARDINAL witnesses were heard during the investigation .

In DATE the scope for an out - of - court settlement in the cases of the applicant companies and Mr PERSON was explored . In a letter of CARDINAL DATE counsel for the applicant companies and Mr PERSON asked ORG to allow them a period of DATE in which to consider the question whether to request a preliminary judicial investigation ( gerechtelijk vooronderzoek ) so that witnesses could be heard by the ORG or the investigating judge ( rechter - commissaris ) . On DATE the applicant companies and Mr PERSON requested a preliminary judicial investigation , which was then applied for on CARDINAL DATE .

On DATE the investigating judge sent a number of official records of evidence taken from witnesses to counsel for the applicant companies and asked him for the names of any further witnesses . On DATE the investigating judge informed counsel that he had heard extensive testimony from a large number of witnesses and that in doing so he had given counsel the benefit of the doubt “ with regard to the question of whether hearing these witnesses was necessary to the preliminary judicial investigation ” . CARDINAL new witnesses whose names counsel had put forward , he stated that counsel should provide detailed reasons why it was necessary for the purposes of the preliminary judicial investigation to hear them .

NORP The preliminary judicial investigation into the applicant companies’ activities was concluded on DATE .

The applicant companies and Mr PERSON submitted a request to the investigating judge on DATE to reopen the preliminary judicial investigation because they still had CARDINAL witnesses they wished to be heard . The investigating judge rejected this request in a decision of DATE on the grounds that the applicant companies and PERSON PERSON had not established that hearing the CARDINAL witnesses was in the interests of the investigation . The investigating judge also took the view that the defence would not by any reasonable standards be prejudiced if the CARDINAL witnesses were not heard .

On DATE the preliminary judicial investigation into the applicant companies was closed . Notice of closure was served on DATE . On DATE notification of further proceedings against the applicant companies was sent to counsel .

On DATE summonses were served on Mr PERSON . The cases against the applicant companies and PERSON PERSON were dealt with at the same sitting but were not joined .

Following a hearing on DATE , ORG ( arrondissementsrechtbank ) convicted the applicant companies and PERSON PERSON on DATE . It imposed fines of MONEY ( NLG – MONEY ( ORG ) ) and NLG MONEY ( EUR CARDINAL ) respectively on the applicant companies , and sentenced PERSON PERSON to CARDINAL years’ imprisonment .

Both the applicant companies and Mr PERSON lodged appeals with ORG ( gerechtshof ) of GPE on DATE . ORG ( openbaar ministerie ) lodged a cross appeal DATE . A first hearing in all CARDINAL cases took place on DATE . Prior to the second hearing , scheduled for DATE , the Advocate General ( advocaat - generaal ) to ORG initiated negotiations with counsel for the applicant companies and Mr PERSON aimed at securing the withdrawal of the appeals . In a letter of CARDINAL DATE , counsel wrote as follows to the Advocate General :

“ Mr PERSON is in principle willing to accept that the judgments of ORG in the criminal proceedings against [ the applicant companies ] become final and conclusive . However , my client is only prepared to withdraw the appeals if ORG explicitly abandons the execution of those judgments and if the tax authorities also forgo the implementation of further measures of collection in respect of [ the applicant companies ] and/or Mr PERSON personally . As regards the tax proceedings which are currently still pending as well as potential future fiscal and/or civil proceedings , the tax authorities and ORG should already at the present time undertake to waive their right to invoke the formal force of law of these judgments and/or their content . ... ”

In reply , ORG wrote on DATE :

“ I suggested withdrawing the appeals in the cases of [ the applicant companies ] for practical reasons since you still have not provided me with any clarification of the structure of the legal entities , and in particular of the fact that there was no natural person with responsibility for them ; you promised both of these things at the hearing .

Both ORG and the tax authorities will , either together or individually , make use of the ( content of the ) judgments in the widest sense of the word where this appears useful to them . ... ”

ORG withdrew its appeals on DATE .

Just before the hearing of CARDINAL DATE was about to start , PERSON PERSON and the Advocate General reached an agreement under the terms of which Mr PERSON would withdraw his and the applicant ORG appeals . In a letter to Mr PERSON , also of CARDINAL DATE , counsel confirmed that agreement , stating that the appeals would be withdrawn and requests submitted for remission of the sentences ( gratie ) imposed by ORG . Remission , according to counsel in his letter , would be in the form of a reduction in the fines imposed on the applicant companies in the pending tax proceedings , while the sentence imposed on Mr PERSON would be reduced to DATE imprisonment , of which DATE would be suspended and the remainder converted into a number of TIME of community service .

According to counsel and Mr PERSON , the Advocate General had further undertaken that a positive recommendation on the requests for remission of sentence would be issued , both by the Advocate General himself and ORG .

NORP In its judgments of DATE , ORG noted that the appeals had been withdrawn and that no hearing of the substance of the cases had taken place .

Also on DATE counsel informed a colleague – counsel for the applicant companies in the tax proceedings – of the withdrawal of the appeals in the criminal proceedings , stating that remission of sentence would be sought in respect of the judgments of ORG “ which had now become final and conclusive ” .

Requests for remission of sentence were lodged with ORG on DATE . The requests were forwarded for advice to ORG on DATE . On DATE the Advocate General at ORG The Hague informed the Ministry that he was prepared to advise on the requests .

At the request of the Minister of ORG , ORG at ORG advised on the requests for remission of sentence on DATE . Its recommendation was that the requests of both the applicant companies and Mr PERSON be dismissed .

On DATE the Minister of ORG sought information from the Advocate General pursuant to section CARDINAL of LAW ( PERSON ) . On DATE , referring to probation and psychiatric reports , ORG issued a favourable opinion on PERSON PERSON ’s request . As far as the applicant companies were concerned , however , ORG saw no grounds not to collect the fines imposed by ORG in part or in full , in addition to the outstanding tax .

On DATE ORG The Hague also gave a favourable opinion in respect of Mr PERSON , but an unfavourable opinion with regard to the applicant companies .

On DATE the requests for remission of sentence made on behalf of the applicant companies were rejected . DATE , counsel for the applicant companies and Mr PERSON wrote to ORG , informing him that he could not square those rejections with the undertakings given by ORG . In a letter of reply dated DATE , the Advocate General denied that he had given such an undertaking as regards the applicant companies .

On DATE Mr PERSON again lodged appeals with ORG against the CARDINAL judgments of ORG of DATE . DATE ORG at ORG informed Mr PERSON that he would proceed with the execution of the sentences imposed on the applicant companies by that court , in the light of the fact that the appeals against the judgments had been withdrawn in DATE and had thus become final and conclusive .

On DATE the Minister of ORG requested ORG once again to advise on Mr PERSON ’s request for remission of sentence in view of the favourable recommendations from ORG and ORG .

The Public Prosecution Department gave a favourable opinion on PERSON PERSON ’s request on DATE . ORG concurred with the recommendation of ORG and ORG on DATE .

Meanwhile , at a hearing before ORG on DATE , the Advocate General recommended that the appeals be declared inadmissible since it was not possible to reinstate an appeal once it had been withdrawn . He stated that although he had suggested to Mr PERSON that he might wish to withdraw his appeal and lodge a request for remission of sentence , he had never given an undertaking that such a request would be granted , but only that he would make a recommendation to that effect . He had made such a recommendation , but no decision had as yet been taken . In any event , as PERSON PERSON had been legally represented , he could have obtained advice from his counsel on the procedure . The Advocate General further confirmed that he had also suggested that the appeals in the cases against the applicant companies be withdrawn . He had done so because there was no longer any advantage to be gained since the companies were bankrupt .

In reply , Mr PERSON argued that he had erred in his decision to withdraw the appeals and would certainly not have withdrawn them had he known that it was the Minister of ORG who had the final say on the requests for remission of sentence ; the undertaking given by the Advocate General had led him to believe that the requests would be granted . Mr PERSON further stated that the applicant companies were not bankrupt and continued to exist .

At a subsequent hearing on DATE , the Advocate General informed ORG that on DATE the request for remission of sentence in the case against Mr PERSON had been granted . Neither PERSON PERSON nor his counsel had previously been informed of that decision . Mr PERSON subsequently decided to withdraw his appeal .

In its judgments of DATE in the cases against the applicant companies , ORG held as follows :

“ The talks between the Advocate General on the one hand and counsel and DATE in his capacity both as the accused in the criminal proceedings against himself and as the representative in the criminal proceedings against the companies – on the other , took place at the initiative of ORG . According to ORG , his aim was to prevent the execution of the custodial sentence imposed on PERSON by the first - instance court in view of the reports concerning PERSON drawn up by a psychiatrist and the probation services . ORG had further assumed that the companies would be unable to make any redress .

ORG considers it likely that PERSON ... was taken by surprise by this course of events and was under the impression that he would be able to rely on a favourable outcome if he withdrew the appeals .

In the opinion of the court , it is incomprehensible that the Advocate General should have advised as he did ... Both PERSON and the companies ... had an interest in the appeals . In addition , it is difficult to see why the court , in its determination of the criminal charges against PERSON , might not have been expected to have regard to the reports concerning his mental welfare , as the Advocate General had done and in accordance with his advice .

The solution favoured by the Advocate General on the other hand , that is to say a request for remission of sentence supported by him , was by no means certain to succeed . After all , the withdrawal of the appeal meant that it was firstly for ORG and ORG to advise on the request for remission of sentence and their advice was apparently not to grant the request . It is true that it appears from the documents in the file that ORG nevertheless attempted to find acceptance for his advice within ORG and that a decision in favour of PERSON – in the shape of community service – was eventually made , but this decision was a long time coming and was preceded by a rejection of the ORG requests for remission .

Due to the fact that a decision on his request for remission remained outstanding and in view of the rejection of the requests of the applicant companies , ORG again lodged an appeal in all CARDINAL cases , partly also because ORG appears to be planning to proceed with the execution of the fines imposed in the criminal proceedings against the companies .

ORG fears that this execution may affect himself and/or his spouse personally . ... In view of the above , the court is of the opinion that PERSON was persuaded to withdraw the appeal on improper grounds ( op oneigenlijke gronden ) ... by ORG , that this has prejudiced the accused ’s reasonable interests in this case and that , accordingly , the newly lodged appeal should be considered as a prolongation of the original appeal . ”

ORG then proceeded to find that a reasonable time within the meaning of LAW had been exceeded and disallowed the prosecution of the cases against the applicant companies .

The Advocate General filed appeals on points of law ( beroep in cassatie ) with ORG ( PERSON ) . On DATE ORG upheld the appeals . It ruled that , in view of the closed system of legal remedies , ORG judgments of DATE had become final and conclusive ( onherroepelijk ) since the legal remedy available against those judgments DATE an appeal on points of law – had not been exercised within the DATE period allowed by statute . Given that ORG had established in those judgments that the appeals against the decisions of ORG had been withdrawn , the accused ’s newly lodged appeals could not be declared admissible .

The GPE system of legal remedies against judgments in criminal proceedings is a closed one in the sense that LAW ( Wetboek van Strafvordering –“CCP ” ) lays down when a legal remedy is available and of what it consists . The general rule is that an appeal lies to ORG from final judgments given at first instance and an appeal on points of law to ORG from a final judgment given on appeal .

Pursuant to LAW ORG , appeal proceedings must be instituted within DATE of the final judgment . Appeals on points of law must also be lodged within DATE of the final judgment ( LAW of the ORG ) .

Remission of sentence may be granted by royal decree ( PERSON ) DATE that is a decree signed by the Monarch and the Minister responsible – pursuant to LAW ( PERSON ) .

For the purposes of the present case , a request for remission may be lodged in respect of a sentence imposed by a judgment that has become final and conclusive ( LAW . Before a decision is taken , the request is sent for advice to the court which imposed the sentence , as well as to ORG Articles CARDINAL and CARDINAL of the Pardons Act ) . Additional information may also be obtained ( LAW ) .

Having considered the court ’s recommendations and the Minister of ORG ’s report , the Monarch decides the request .


Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

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

On DATE the applicant , then a military officer , was detained on suspicion of having committed theft of spare parts for military ammunition and the murder of his accomplice PERSON His initial questioning was conducted without a lawyer because the applicant had signed a waiver stating that he was aware of his right to legal assistance and that his refusal was not due to financial reasons .

On DATE legal aid counsel was appointed to represent the applicant in the criminal proceedings .

From that date the applicant was detained in the Ussuriysk PERSON detention facility . During DATE of his detention he sent a number of letters to the prosecutor ’s office complaining about the lack of progress in his criminal case and various procedural violations on the part of the investigator . In his letter of DATE , in particular , he indicated that the assistant of the military prosecutor of FAC , investigator NORP , had made threats “ to hand him over ” to the family of PERSON to let them take revenge .

On DATE at TIME investigator NORP checked the applicant out of the detention facility in order to take him to some unspecified site , allegedly for investigative actions . The applicant was transported by operative officers PERSON and NORP , both of whom were armed , and he was driven in T. ’s personal car . They drove to CARDINAL FAC on the outskirts of NORP , where the car stopped . PERSON and PERSON told the applicant that they were waiting for NORP to join them before they could proceed to the place for the investigative action . While they were waiting , at TIME another car later described as a “ NORP make ” pulled in . Several armed men got out , opened the door of ORG ’s car , forced the applicant out and loaded him into their car . PERSON and ORG offered no resistance to their actions . According to the applicant , they even helped the men to push the applicant into their car .

The armed men , who , the applicant maintained , were relatives of PERSON , took the applicant to a house in the country and tortured him there until CARDINAL p.m. the same day . According to the applicant , he was chained to a radiator pipe while the men took turns to administer blows with various objects , such as stools , benches and tools , burned him with cigarettes and crushed his fingers and toes . Every time the applicant passed out they would throw him under cold water until he recovered consciousness and then continued to torture him . Throughout the beatings they threatened to kill his family and demanded that he confess to the murder . At TIME the men made an “ anonymous phone call ” to investigator NORP , telling him that he could collect the applicant from FAC in GPE . The applicant was then brought to that street where NORP found the applicant and took him back to the PERSON detention facility . In the detention facility the applicant underwent a medical examination which established multiple bruises , abrasions and burn marks on his body . He informed an operative officer , PERSON . , about the incident and on DATE sent a complaint , accompanied by the medical certificate , to ORG .

On DATE the applicant sent a complaint to ORG of ORG that he had been ill - treated on DATE and about the lack of follow - up to his complaint of DATE . He requested that criminal proceedings be instituted against the members of PERSON ’s family and the officials who had handed him over .

On DATE the applicant wrote to ORG of ORG reiterating his complaints of ill - treatment on DATE and about the absence of any follow - up to his earlier complaint .

On DATE the applicant reiterated his complaint to ORG of ORG .

On DATE ORG of ORG convicted the applicant of aggravated murder and of theft of military ammunition . He was sentenced to DATE imprisonment . The court in its judgment dismissed the applicant ’s complaint of ill - treatment . The applicant appealed , claiming , inter alia , that the court had used the testimony obtained under duress and without a lawyer ; that his detention had been extended unlawfully ; and that during a considerable period of time the investigation had been inactive . He also complained of ill - treatment on DATE and failure to investigate it .

On DATE the applicant received a reply from ORG of ORG informing the applicant that an additional enquiry would be carried out as regards his complaint of ill - treatment . This was confirmed by another letter from the same prosecutor ’s office on DATE .

On DATE ORG of FAC opened a criminal investigation into the incident of DATE .

On DATE the applicant sent a complaint to ORG of ORG . He complained that the investigation in the criminal case concerning his ill - treatment had been belated and inefficient . He alleged that he still had not got access to any materials on the file and that even basic investigative steps had not been taken .

On DATE ORG of FAC discontinued criminal proceedings concerning the ill - treatment , relying on the statements of the following persons , who had been questioned :

– the applicant , who reiterated the earlier submissions and the allegations against the members of PERSON ’s family and the implicated officials , NORP , ORG and PERSON ;

– investigator NORP , who denied handing the applicant over or making any prior threats to the applicant ; he confirmed that there had been CARDINAL occasion when he had allowed PERSON , a relative of the deceased , to talk to the applicant in the interview room , but he had made no threats ;

– witness A. , apparently also a member of PERSON ’s family , who was present during the above conversation and who confirmed that PERSON did not threaten the applicant ;

– operative officer PERSON who submitted that on DATE he was transporting the applicant together with PERSON ; they stopped in FAC waiting for NORP and were attacked by unknown persons who abducted the applicant ; he stated that they had not expected to be attacked and had therefore offered no resistance ; he had not received any instructions from NORP to hand the applicant over to PERSON ’s relatives ;

– S.G. , the suspect in the applicant ’s abduction , denied any knowledge of the incident ;

– witness ORG , apparently NORP ’s superior , submitted that NORP had been negligent in having failed to organise adequate transport of the applicant , but was not responsible for him having been beaten up .

As regards NORP , PERSON it was established that they had been negligent in discharging their official duties but there had been no causal link between their negligence and the applicant ’s injuries . Their prosecution for criminal negligence was therefore discontinued . The proceedings against LOC and other relatives of PERSON were also discontinued on the grounds of lack of evidence against them .

On DATE the Military Section of ORG of GPE upheld the applicant ’s conviction but reduced the prison sentence to DATE . The court of appeal found that there had been no procedural irregularities during the pre - trial investigation , that the applicant had been informed about his right to legal assistance and had waived it . The testimony given by the applicant was found to have been received in compliance with the procedural rules . As to the alleged ill - treatment on DATE , the court of appeal referred to it as “ acts of unidentified individuals ” . It held that there was no connection between this episode and the applicant ’s criminal conviction because the applicant had confessed to the murder before the events of DATE .

On DATE the applicant lodged a complaint with a court alleging , among other complaints , ill - treatment and inaction by the prosecutor ’s office following his complaints .

On DATE ORG of PERSON examined this complaint and dismissed it . The court found that the prosecutor ’s office had conducted an investigation of the episode of ill - treatment and considered it thorough and sufficient . The applicant appealed .

On DATE the applicant was informed that criminal proceedings against investigator NORP , operative officers T. and PERSON and members of PERSON ’s family had been discontinued . He sent a complaint to ORG of FAC requesting access to the file relating to the discontinued criminal proceedings . In reply , on DATE , he was informed that there had been no grounds to reconsider previous decisions taken in respect of his complaints .

On an unspecified date the applicant challenged the closure of the criminal investigations of the ill - treatment before a court . On DATE the court dismissed the applicant ’s claim , finding that the decision to discontinue prosecution of the officers and PERSON ’s relatives had been lawful and reasonable . The applicant submitted that on DATE he had appealed against this decision .

On DATE ORG of ORG examined the applicant ’s appeal against the decision of CARDINAL DATE , reversed the latter decision and decided to discontinue the proceedings on the grounds that the applicant ’s complaint was in fact a request for a supervisory review . On DATE the same court examined the applicant ’s request for a supervisory review of the decision of CARDINAL DATE and rejected it having found that the applicant ’s complaints were in essence an expression of his disagreement with his conviction .

On DATE the same court examined and rejected the applicant ’s request for supervisory review of the decision of DATE . It upheld the earlier judicial assessment and the decision to discontinue criminal proceedings concerning the applicant ’s ill - treatment .

The applicant was detained in the Ussuriysk no . PERSON detention facility :

– from DATE to DATE in cell no . DATE , which measured QUANTITY ;

– from DATE to CARDINAL DATE in cell no . DATE , which measured QUANTITY ( except for several short - term transfers to other facilities for the purposes of the criminal proceedings and an DATE transfer to GPE for the appeal hearing ) ;

– from DATE to DATE in cell no . CARDINAL , which measured QUANTITY .

The conditions in the LOC facility are partly in dispute between the parties .

According to the applicant , the cells were overcrowded and there was a shortage of sleeping places ; the inmates slept on the concrete floor , huddled together to keep warm ; there had been no , or insufficient , heating ; the facility was overrun by rats ; the light and water supply were often interrupted . In support of his claims he provided a copy of his letter to ORG dated DATE . In this letter the applicant complained that he was detained in cell no . DATE , which was extremely overcrowded . He indicated that he shared the cell with CARDINAL other detainees and that there had not been enough beds or mattresses and that “ everybody slept on the bare floor ” .

The Government submitted that the information on the number of inmates in the cells in the relevant period was not available because the registration logs for that period were destroyed on DATE , after the expiry of the term of their storage in archives . However , relying on the certificate by the director of the facility , issued on CARDINAL DATE , and by the warden reports , issued on of CARDINAL DATE , they contended that the conditions in the facility were satisfactory and that the number of detainees in each cell did not exceed the number of sleeping places . The ORG submitted that the applicant had an individual bunk and was provided with bedding . All cells were disinfected on a “ regular basis ” . The sanitary and hygienic conditions in the facility were in conformity with the regulations . All cells were equipped with a lavatory pan and sink . The pan was separated from the living area by a QUANTITY - high partition wall with a curtain .

The Government submitted a copy of the sanitary inspection report issued on DATE by ORG of ORG in respect of facility no . PERSON . The report contained a detailed questionnaire filled in by the sanitary inspectors in the presence of the facility administration and , inter alia , stated that :

– the facility was designed for CARDINAL inmates ;

– at the time of inspection there were CARDINAL inmates ;

– personal living space in the cells was QUANTITY for male inmates ( § CARDINAL.CARDINAL ) ;

– individual sleeping facilities and bedding were available for PERCENT of inmates ( § § PERSON and CARDINAL ) ;

– there were insects and rodents in the facility ( § MONEY ) ;

– sanitary facilities in DATE were insufficient and dilapidated ( § CARDINAL ) .

Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :

“ b. temporary holding facilities for criminal suspects ( ORG )

According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .

The actual conditions of detention in the ORG establishments visited in DATE varied considerably .

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘ because they know that all complaints usually pass through the colony ’s GPE .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant is the father of a son ( S. ) , born on DATE . In DATE the applicant and the child ’s mother ( PERSON ) separated . S. remained with his mother . In DATE the applicant and PERSON ’s mother were divorced .

On DATE ORG awarded PERSON sole custody of S. and decided that the applicant would be entitled to personal contact with his son every other DATE . In DATE , however , the applicant ceased to have contact with his son .

On DATE the applicant requested ORG to impose a coercive fine on the mother to enforce his access rights . ORG registered his request under file CARDINAL F CARDINAL/CARDINAL .

DATE and DATE the parties and ORG submitted observations .

On DATE the applicant withdrew his request and stated that he now wished the court to mediate between the parents with a view to reaching an agreement on the applicant ’s contact rights according to section CARDINALa of ORG Gesetz über die Angelegenheiten der freiwilligen PERSON – see “ Relevant Domestic Law ” below ) . ORG pursued the applicant ’s modified request under the same file number ( CARDINAL F CARDINAL/CARDINAL ) .

On DATE the ORG heard S. , who declared that he wished to see his father only occasionally under the supervision of a third person .

At a hearing held on DATE the parents agreed on supervised contact for the applicant .

On DATE ORG held a further hearing at which the parties declared that the court currently did not need to take any action .

On DATE the applicant applied for the appointment of a guardian ad litem and a contact supervisor ( PERSON ) arguing that the mediation proceedings had failed .

On DATE ORG appointed a guardian ad litem and set down the case for hearing on DATE . However , that hearing was postponed to CARDINAL DATE as agreed with the parties .

On DATE a further hearing was held , and on DATE ORG ordered supervised contact for a period DATE and DATE .

On DATE the guardian ad litem informed the court that no contact had taken place .

On DATE ORG asked the contact supervisor to comment on the failure to have contact established between the applicant and his son . In DATE ORG reminded the contact supervisor of its request of DATE and unsuccessfully attempted to contact the latter by phone .

On DATE the applicant asked the court to continue the proceedings .

On DATE ORG sent a further reminder to the contact supervisor and requested the parties to comment on the question as to whether the mediation proceedings should be continued .

On DATE the applicant asked ORG to continue the mediation procedure .

On DATE ORG decided to continue the proceedings after the parties had agreed on a CARDINAL - off supervised contact .

On DATE the contact centre informed ORG that the contact supervisor had been replaced with another person , and on DATE ORG appointed that person as contact supervisor .

On DATE ORG received the contact supervisor ’s report , according to which PERSON refused to see his father .

On DATE the applicant asked ORG to declare that the mediation proceedings had failed and to commission an expert report .

On DATE the ORG heard S. again , who firmly declared that his father no longer existed for him .

On DATE the ORG commissioned a psychological expert report on the question of contact . That expert informed the court on DATE that he could be biased . Accordingly , the mother ’s representative challenged the expert for bias on DATE . On DATE ORG ordered the expert to stop his examinations , and on DATE the mother withdrew her challenge of bias . On DATE ORG ordered the expert to continue his examinations .

On DATE ORG requested the expert to consider further questions raised by the applicant .

On DATE the expert informed the court that PERSON had refused to attend a meeting with the expert until DATE . Subsequently , ORG asked PERSON to ensure that a meeting was held by DATE . On DATE ORG asked all persons involved in the proceedings to support the expert in the preparation of his report . On DATE the expert informed ORG that for the time being PERSON was unwilling to meet the expert . On DATE ORG ordered PERSON to cooperate with the expert within DATE and announced that further measures would be taken in the event of non - compliance .

On DATE the expert informed the court that a meeting had been held with PERSON on DATE , that the applicant and his son had called each other and that the applicant considered withdrawing his application .

On DATE , at the applicant ’s request of DATE , ORG ordered the expert to swiftly continue his examination . On DATE the expert gave his report in which he suggested a suspension of the applicant ’s contact with S. for a period of DATE .

On DATE the ORG heard S. , who insisted that he did not wish to see his father any longer .

At an oral hearing held on DATE the applicant announced that he would withdraw his application . However , on DATE the applicant insisted on a court decision .

On DATE ORG , relying on the expert ’s report , suspended the applicant ’s rights to access for DATE .

On DATE the applicant appealed to ORG , and on DATE he submitted his statement of grounds of appeal , which the court received on DATE .

On DATE ORG upheld the decision of ORG , arguing that PERSON had suffered from the persistent conflict between his parents about the applicant ’s contact rights and from the respective proceedings , which had been pending now for DATE and which had led to lasting psychological damage to the child . In order to protect himself , the boy refused to expose himself to this conflict , by refusing to see his father .

On DATE the applicant lodged a constitutional complaint with ORG , which ORG refused to admit on DATE .

On DATE the decision was served on the applicant .

Proceedings in family matters are governed by LAW ( Gesetz über die Angelegenheiten der freiwilligen PERSON ) . Pursuant to section CARDINALa of that LAW the family court shall mediate between the parents at the request of CARDINAL parent if CARDINAL parent claims that the other parent is obstructing the implementation of a court decision on contact with a child they have in common .


The applicant is a GPE national , born in DATE and living in the GPE . He was initially represented before ORG , a lawyer practising in GPE . PERSON has now been replaced by ORG QUANTITY Rouwelaar , a lawyer practising in GPE .

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

The applicant had a relationship with a woman , PERSON , out of which a child , PERSON , was born on DATE . The applicant recognised PERSON as his child . By a decision dated DATE ORG judge ( PERSON ) vested parental authority jointly in the applicant and PERSON

After the relationship between the applicant and PERSON had ended in DATE , the latter applied to ORG for the guardianship ( voogdij ) over PERSON . In its decision of CARDINAL DATE ORG appointed PERSON as PERSON 's guardian ( voogd ) and the applicant as her subsidiary guardian ( toeziend voogd ) . PERSON was to remain with PERSON The applicant was granted an access arrangement ( omgangsregeling ) under which PERSON would stay with him for DATE each fortnight and for periods of DATE during DATE .

On DATE PERSON applied to ORG ( Arrondissementsrechtbank ) of PERSON for a change in the access arrangement . The applicant submitted a written statement of defence suggesting changes of his own . On DATE , ORG agreed to change the access arrangement in accordance with the wishes of PERSON The changes involved , essentially , that PERSON would be handed to the applicant at times which would preclude the applicant from picking up or dropping PERSON at school , as “ communication at school ” had apparently led to conflicts between the applicant and PERSON

It appears that on DATE , when PERSON came to pick up PERSON at the applicant 's home , an incident took place between the applicant and PERSON which gave rise to separate criminal complaints filed by both of them . According to a statement made by PERSON to the police this incident was caused by disagreement about her decision to send PERSON to a different school . Thereafter PERSON refused the applicant all access to PERSON .

On DATE - shortly before the hearing in summary injunction proceedings ( kort geding ) aimed at securing PERSON cooperation with the access arrangement ( see below ) - PERSON applied to ORG for the access arrangement between the applicant and PERSON to be terminated altogether . The applicant lodged a written statement objecting to this suggestion , asking for the access arrangement to be altered instead . ORG decided to order ORG ( PERSON ) to report to it on the feasibility of continuing the access arrangement .

ORG held a hearing on DATE . The applicant complained that ORG was taking too long to finish its report He asked for the ORG 's terms of reference to be changed and for access to be resumed in the meantime . ORG decided not to alter the ORG 's terms of reference and deferred its decision until the report was ready .

ORG submitted a report dated DATE by a psychologist , who - at the request of ORG - had examined PERSON and who had found that PERSON had suffered by the lack of understanding between her parents . Resumption of access by the applicant would be too threatening for PERSON and ought therefore not to be considered at this stage . Psychological support was needed to help PERSON overcome the psychological problems caused by the conflicts that she had witnessed . Both PERSON and the applicant , with whom the psychologist had had conversations both prior to and after PERSON 's examination , had been given the opportunity to make comments on this report . These comments were annexed to the report .

In a second report dated CARDINAL DATE by ORG , which had been drafted on the basis of conversations held with PERSON and the applicant and the psychologist 's report of DATE , it was noted that PERSON had better ties with PERSON than with the applicant and felt threatened in her contacts with the applicant . It was recommended that access should not be resumed until such time as PERSON herself was ready for it , that PERSON should receive psychological support and that the applicant should seek psychological treatment . Both PERSON and the applicant were given the possibility to make written comments on the report . Only PERSON availed herself of this opportunity . Her comments were appended to the report . The applicant 's lawyer merely stated that the applicant considered that the contents of the report were not at all correct , but that he did not wish to avail himself of the possibility to submit comments .

On DATE ORG gave a decision terminating the access arrangement altogether . Insofar as relevant , ORG held :

“ ORG accepts the advice of the expert and ORG and will decide accordingly .

Since we are faced with the case of a girl who is just over DATE who does not yet have a strong personality , this will have to be taken into consideration .

If access by the father were to be resumed at this point , that would be too much of an imposition on the child , given the apprehensive reactions observed in GPE , who moreover is emotionally blocked and has found a safe haven with her mother ; access < by the father > would seriously harm her development .

The father 's request will be rejected on the above - mentioned grounds and the mother 's request will be granted .

The father must allow PERSON some time .

ORG draws the mother 's attention to her responsibility as the caring parent and charges her to take all measures necessary to get her daughter out of the present blockage . ”

On DATE , the applicant filed an appeal with ORG ( ORG ) against the decision of CARDINAL DATE .

In its decision of DATE , ORG endorsed the refusal of ORG to order an access arrangement . ORG considered that it was generally in the child 's interests for it to have contacts with the non - custodial parent , and that the non - custodial parent was in principle entitled to such access . However , basing itself on the psychologist 's report , ORG found it necessary for PERSON to grow up in a safe family environment , from which the applicant was to be excluded so as to allow PERSON to develop a normal bond with PERSON , who was to help PERSON overcome her negative emotional reactions to the applicant , for which PERSON needed to seek psychological counselling . It would then be possible in DATE time for contact between the applicant and PERSON to be resumed . In the meanwhile PERSON was to provide the applicant twice a year with information on PERSON 's development , including recent photographs and school reports . It held , amongst other things , that although there was nothing in the relationship between PERSON and the applicant to impede contact between them , it would not be in PERSON 's interests to order a compulsory access arrangement in view of the serious lack of understanding between PERSON and the applicant as well as PERSON 's own psychological state .

On DATE , the applicant lodged an appeal in cassation with ORG ( PERSON ) . He argued that ORG ought to have ordered an access arrangement , leaving it to PERSON 's parents to see to it that she did not suffer any harm or , in the alternative , ORG ought to have examined the question of whether the facility with which access arrangements could be terminated was not partly the cause of the problems , and whether continuing the access arrangement rather than terminating it would not have been more conducive to reducing tensions between the parents . He further argued that ORG decision was insufficiently reasoned , given that ORG had found that there was nothing to impede contact between the applicant and PERSON per se and so it was not clear how compelling PERSON to allow such contact could harm PERSON 's interests .

ORG handed down its decision on DATE dismissing the applicant 's appeal . As to the applicant 's first complaint it held that ORG had been entitled to decide , on the basis of the information available to it ( including the psychologist 's report ) , that to impose an access arrangement would be contrary to PERSON 's weighty interests . As regards the applicant 's second complaint , ORG held that ORG had merely stated that an access arrangement imposed by court order would be detrimental to PERSON 's interests .

Following the incident of CARDINAL DATE the applicant tried , initially through social workers and later through his lawyer , to get PERSON to recommence implementing the access arrangement as determined on DATE . These attempts did not meet with success .

On DATE the applicant summoned PERSON to appear before the President of ORG of Zutphen in summary injunction proceedings . The applicant sought an order against PERSON to co - operate in the implementation of the access arrangement or forfeit a sum of money each time that she failed to do so .

Following a hearing held on DATE , the President of ORG gave judgment on DATE declining to give the order sought by the applicant . He held :

“ Parties are making mutual reproaches which , in the absence of a sound substantiation , can not be adequately examined in the present proceedings as to their degree of foundedness . The proceedings on the merits already pending ... are more suitable for a thorough examination , the more so since in those proceedings use can be made of the assistance of ORG of Zutphen . Also taking into consideration that the < applicant > has not had access to PERSON for DATE , it can not be considered for the time being as being in PERSON 's interests - which takes a central place in this matter - that in anticipation of the outcome of the proceedings on the merits the present access arrangement will be restarted , as this would result in a change of a stable situation which , having regard to PERSON 's tender age , does not appear to be opportune . ”

The President of ORG did , however , not award costs against the applicant but ordered both parties to bear their own costs .

The applicant filed an appeal with ORG . He argued that the President ought to have ordered the resumption of the access arrangement , because that would have made it clear in what way contact between him and PERSON should be resumed and would thus have yielded information which would have benefited the decision of ORG on whether or not to terminate the access arrangement altogether . He further argued , inter alia , that his intention was to give practical effect to a right that had been determined by a decision of a court that had obtained the force of res iudicata .

Following a hearing held on DATE , ORG gave judgment on DATE , i.e. the same day on which it handed down its decision on the access arrangement ( see above ) . It held that , as it had endorsed the termination of the access arrangement , the applicant 's claim had lost its basis and that therefore the judgment of the President of ORG had to be confirmed . The applicant as the losing party was ordered to pay a sum of money towards PERSON legal costs .

The applicant filed an appeal in cassation with ORG on DATE . He argued that , although the ground for his claim had disappeared due to the decision of ORG terminating the access arrangement , ORG ought nevertheless to have ruled in principle on the claim 's foundedness , since the question whether or not he was in fact the losing party depended on it , and the decision on costs in turn depended on that .

In its judgment of DATE , ORG held that ORG had erred in law by deciding without a further examination that the applicant was the losing party . ORG ought instead to have addressed the question of whether or not the President of ORG had rightly dismissed the applicant 's claim and to have based its decision on costs on the outcome of that examination . ORG did not , however , refer the case back for a rehearing on appeal , holding instead that irrespective of the outcome of such a rehearing each party should bear its own costs . In so doing it applied by analogy the rule that such a decision was possible in litigation between married parents .

At the relevant time , access rights were regulated in ORG CARDINAL:CARDINALa and CARDINAL of LAW ( PERSON ) . These provisions were subsumed in Article CARDINAL et seq . of LAW by LAW DATE , which entered into force on DATE .

Article CARDINAL:CARDINALa of LAW , as in force at the material time , provided as follows :

“ CARDINAL . The child and the parent who has not been appointed as guardian are entitled to have access to each other ( omgang met CARDINAL ) . Access between the parent and the child can take place from the time at which the other parent 's guardianship has begun .

ORG shall , at the time of the divorce or at DATE , at the request of both parents or of CARDINAL of them , establish an arrangement for the implementation of the right to access , for a definite period or not as the case may be , or shall deny , for a definite period or not as the case may be , the right to access .

ORG shall only deny the right to access if :

a. access would seriously impair the mental or physical development of the child ; or

b. the parent must be deemed to be obviously unfit for , or obviously incapable of , access ; or

c. access would for another reason be contrary to weighty interests ( zwaarwegende belangen ) of the child ; or

d. the child , being DATE , when being heard has made serious objections to allowing his parent access . ”

Article CARDINAL of the Civil Code , as in force at the material time and insofar as relevant , read as follows :

“ At the request of CARDINAL or both of the parents , ORG may amend decisions given pursuant to ORG and ORG or change an access arrangement concluded by mutual agreement between the parents on the grounds that the circumstances have changed or that the decision was based on inaccurate or incomplete information . ”

Although the provisions governing access as in force at the relevant time only related to access following divorce , the right of access of parents who had never been married to each other was in fact recognised in domestic case - law under LAW ( cf . PERSON , DATE , PERSON , nr . CARDINAL ; and PERSON , DATE , PERSON , nr . CARDINAL ) .

Where an access arrangement is not complied with , the parent concerned may request the competent court to issue a measure aimed at enforcing compliance . Courts can not act at their own initiative in this field . Judicial measures aimed at enforcing compliance can take the form of , inter alia , assistance by the police , civil imprisonment , suspension of maintenance payments or placement under supervision ( ondertoezichtstelling ) .

In civil cases where urgency is required , summary injunction proceedings ( kort geding ) before the President of ORG may be taken in order to obtain an immediate or interim measure . Such proceedings may be taken where the parties can not wait for a decision in the proceedings on the merits ( bodemprocedure ) . Summary injunction proceedings are governed by Articles CARDINAL - CARDINAL of LAW ) . They are concluded speedily and focus on oral submissions at the hearing . As these proceedings are characterised by speed , issues raised are only examined summarily . Decisions taken in summary injunction proceedings are usually handed down within DATE after the hearing and are immediately enforceable ( bij voorraad uitvoerbaar ) . They may however not be detrimental to the outcome of the proceedings on the merits ( “ beslissingen bij voorraad QUANTITY nadeel toe aan de zaak ten principale ” ) . The court determining the merits of the case is not bound by the decision handed down by the President of ORG in summary injunction proceedings .


Violation of Article 5 - Right to liberty and security

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

The applicant was born in DATE and lives in FAC . He is currently detained in FAC .

On DATE the applicant was arrested on suspicion of having been involved in drug trafficking as a member of an organised criminal group .

On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be detained on remand until DATE in view of the reasonable suspicion that he had committed the offences in question . The court considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings given the risk that he might obstruct them . This suspicion was , in the court ’s view , justified by the fact that the applicant had been acting in an organised criminal group , “ the members of which had not been identified ” . The court also stressed the severity of the likely sentence .

The applicant ’s detention was repeatedly extended by several decisions of ORG ( PERSON ) and ORG ( Sąd Apelacyjny ) . In their decisions , the courts repeatedly relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged , the serious nature of the offences and the risk that the applicant , as a member of an organised criminal group , would obstruct the investigation .

On DATE the prosecutor lodged a bill of indictment with ORG against the applicant and CARDINAL other co - accused . The prosecutor requested CARDINAL witnesses to be heard .

On DATE ORG , extending the applicant ’s detention for a further DATE , noted that the length of the investigation had already been excessive and ordered that , by DATE extended detention ( that is , by DATE ) , ORG commence the trial and hear all the defendants in the proceedings .

On an unspecified date the applicant appealed .

On DATE ORG confirmed its decision .

It appears that ORG instructions were not followed by ORG . After DATE the applicant ’s detention was extended CARDINAL more times and the measure has still not been lifted .

On an unspecified date in DATE the applicant ’s lawyer , relying on the applicant ’s state of health and his family situation , requested the court to vary the preventive measure .

On DATE ORG refused the request , again invoking the serious nature of the offences with which the applicant had been charged and the risk that he would obstruct the proceedings . As regards the applicant ’s health and his family situation the court found that :

“ It emerges from the information received from ORG doctor that the applicant can be treated in detention .... The applicant ’s family situation is not so different from the situation of most families where a husband and father is imprisoned . However , the applicant ’s wife runs her own business , which secures her and her children a basic income . It is true that the applicant ’s apartment has been sold at auction but , in the court ’s view , any possible eviction is still a long way off and even then the applicant and his family can obtain alternative accommodation . Lifting the applicant ’s detention order would not change the living conditions of his family much . ”

The applicant ’s detention was further extended by ORG on DATE , DATE , DATE and DATE and on DATE . The applicant appealed against all those decisions , apart from the CARDINAL given on DATE , but they were confirmed by ORG . In all those decisions ORG relied basically on the same grounds , repeating the arguments relating to the suspicion against the applicant , the serious nature of the offences with which he had been charged , the severity of the penalty to which he was liable and the risk that he might obstruct the proceedings . The suspicion was justified , in the court ’s view , by the charge of acting in an organised criminal group .

The applicant is still detained and the proceedings before the first - instance court have not yet been terminated .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .