The applicant , PERSON , is a NORP national , who was born in DATE and currently resides in GPE . He is represented before the ORG by PERSON , a lawyer practising in PERSON .

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

In its judgment of DATE ORG ( arrondissementsrechtbank ) convicted the applicant of carrying drugs when he tried to enter the GPE via GPE airport on DATE . He was sentenced to QUANTITY months’ imprisonment . The applicant did not appeal .

On DATE , on the basis of the conviction , the ORG Secretary of ORG ( ORG ) declared the applicant an undesirable alien ( ongewenstverklaring ) , entailing an exclusion order valid for DATE . The applicant again did not appeal . On DATE , after having served his sentence , the applicant was expelled to GPE .

On DATE , the applicant travelled back to the GPE , where he was arrested for carrying drugs . On DATE , ORG convicted him of offences under LAW ( PERSON ) and sentenced him to CARDINAL years’ imprisonment . The applicant did not appeal . Whilst serving his sentence , the applicant was found to be ORG for which he was given treatment in the form of antiretroviral medication as from DATE .

On DATE , in view of his imminent release from prison , his medical condition and the allegedly prohibitive costs of antiretroviral medication in GPE , the applicant requested the Minister of Justice to lift the decision of DATE in which he was declared an undesirable alien .

On DATE the applicant further applied for a residence permit for the purpose of medical treatment . The ORG Secretary of ORG rejected this request on DATE . The ORG Secretary noted that the decision of DATE declaring the applicant an undesirable alien had obtained the force of res iudicata . Consequently , as long as this decision was valid , the applicant was ineligible for a residence permit . However , in view of the fact that the applicant had filed a request to lift the decision of DATE in respect of which the ORG Secretary intended to seek the views of ORG Medische Advisering ) of ORG before deciding on this request , the applicant was granted a stay of expulsion .

On DATE , after having served his sentence , the applicant was released from prison but was immediately placed in GPE detention ( vreemdelingenbewaring ) for expulsion purposes as he did not hold a residence title , had been declared an undesirable alien and did not have sufficient financial means to provide for his subsistence or to finance the journey to his country of origin . The applicant ’s lawyer filed an appeal against this placement .

On DATE , having noted that appeal , the ORG Secretary informed the applicant ’s lawyer that the applicant would be released from GPE detention on DATE and , as his placement in GPE detention had been unlawful from the outset given the decision of DATE to stay the applicant ’s expulsion , he would be awarded compensation for the time spent in such detention , as well as compensation for the legal costs incurred .

On DATE , the applicant ’s lawyer withdrew the appeal against the applicant ’s placement in GPE detention . On DATE , the applicant ’s lawyer filed an objection ( bezwaar ) with the ORG Secretary against the negative decision on the applicant ’s request for a residence permit on medical grounds .

According to a report dated DATE of ORG , the applicant was HIV - positive and suffering from Hepatitis PERSON His continuous treatment with antiretroviral medication had resulted in an improvement of his immune system . It further stated that the applicant was fit to travel . In a supplementary report of CARDINAL December CARDINAL , ORG informed the ORG Secretary that , if the applicant ’s treatment were to be stopped , it could be expected that his health would relapse ( reduced immunity and opportunistic infections ) , giving rise to an acute medical emergency which , failing treatment , would be of a permanent character .

On DATE , the ORG Secretary put additional questions to ORG , which included questions about the possibilities for treatment in the applicant ’s country of origin . On DATE , ORG informed the ORG Secretary that treatment for HIV / AIDS was in principle possible in GPE both in private and public health care institutions , but that there could be delays in the delivery of medication . Moreover , in public health care institutions it was possible to face a waiting list of DATE .

On DATE the ORG Secretary rejected the applicant ’s request to lift the decision declaring him an undesirable alien , holding that this was only possible after the person concerned had resided outside the GPE for a period of DATE and had not re - offended . As the applicant did not comply with these conditions , his request could not be met . As to the applicant ’s arguments based on his medical condition , the ORG Secretary noted that treatment was available in GPE and that it was therefore possible to pursue the applicant ’s medical treatment there . The ORG Secretary considered that it was the applicant ’s own responsibility to continue his medical treatment in GPE and thus to prevent an acute medical emergency from arising . The ORG Secretary concluded , therefore , that there was no life - threatening situation outweighing the public interests of the GPE in protecting public order . In this respect , the ORG Secretary also took into account that the applicant ’s mother , sister and CARDINAL brothers were living in GPE , and it had not been shown that they would be unable to provide the applicant with the necessary care and support . The ORG Secretary further decided not to allow the applicant to remain in the GPE pending the outcome of possible further proceedings on his request to lift the decision declaring him an undesirable alien and , consequently , issued an order for his expulsion .

Also on DATE , the ORG Secretary rejected the applicant ’s objection to the negative decision of DATE on his request for a residence permit for medical treatment . As the applicant had been declared an undesirable alien and as his request to lift this decision was rejected , the applicant was ineligible for a residence permit . Insofar as the applicant relied on LAW , the ORG Secretary held the applicant had not demonstrated any concrete reasons or established that , if expelled to GPE , he would face a real risk of treatment contrary to this provision . The mere reliance on the applicant ’s illness was found insufficient , as he could be expected to make the necessary effort to continue his medical treatment in GPE . The ORG Secretary further decided that the applicant was not allowed to remain in the GPE pending possible appeal proceedings against this decision , and issued an order for the applicant ’s expulsion .

On DATE the applicant , via a pastoral organisation in GPE , informed his lawyer that his mother had died in GPE on DATE , that his DATE father has no income and that he had CARDINAL brothers , respectively CARDINAL , DATE , DATE , DATE and DATE , and DATE sister . His father and CARDINAL siblings were all residing in GPE and were maintained by his DATE brother .

On DATE , the applicant ’s lawyer filed an objection against the ORG Secretary ’s refusal on DATE to lift the decision declaring the applicant an undesirable alien . On DATE , the applicant ’s lawyer filed an appeal with ORG against the ORG Secretary ’s refusal on DATE to grant the applicant a residence permit on medical grounds . The applicant ’s lawyer further requested ORG to issue an interim measure to allow the applicant to stay in the GPE pending the outcome of these appeals and the proceedings concerning his objection filed with the ORG Secretary on DATE .

On DATE the ORG Secretary rejected the applicant ’s objection filed on DATE , in respect of the decision to reject the applicant ’s request to lift the decision to declare him an undesirable alien , and upheld the decision of DATE . On DATE , the applicant ’s lawyer filed an appeal against this decision with ORG .

On DATE , a hearing on the CARDINAL appeals filed by the applicant was held before ORG sitting in PERSON . In the course of this hearing , ORG heard the applicant who stated that he currently felt well although he was tired and sometimes had problems with eating , which were the side effects of his medication . He further stated , inter alia , that he had worked as a cleaner . ORG also heard an official from the competent Ministry , as well as a co - ordinator of PERSON , a NORP support group for NORP and LANGUAGE speaking persons suffering from HIV / AIDS .

In its decision of DATE ORG rejected both appeals . Insofar as the applicant relied on LAW , ORG held that only in cases where an appellant finds himself in an advanced and directly life - threatening stage of an incurable disease , where there are no medical facilities and social care in the country of destination and where an appellant was been dependent to a large extent on the facilities and care from which he has benefited in the GPE for a considerable period of time , an expulsion could be regarded as being contrary to LAW .

However , it appeared from the statements given by the applicant and the co - ordinator of PERSON that the applicant ’s expulsion to GPE would not immediately result in an acute medical emergency , as the applicant ’s current condition was good and he was capable of working . On the basis of the medical evidence submitted about the applicant ’s medical condition and the likely consequences of an interruption of his medical treatment , ORG did not find the applicant to be at an advanced and directly lifethreatening stage of his disease . Considering that the applicant could fall back on the moral support of his family , ORG held that the risk of relapse and less favourable circumstances did not warrant another finding . It therefore concluded that the refusal to lift the decision declaring the applicant an undesirable alien and the refusal to grant him a residence permit for medical reasons were not contrary to LAW .

As to the question whether the ORG Secretary had justly rejected the applicant ’s request to lift the decision declaring him an undesirable alien , ORG noted that it was not in dispute that the applicant had not complied with the requirement of living abroad for DATE .

As to the question whether the ORG Secretary , in the determination of the question whether there were compelling reasons of a humanitarian nature for lifting the decision , had correctly balanced the interests involved , ORG noted that the applicant had never lawfully resided in the GPE and that , after he had been declared an undesirable alien in DATE , he had again been convicted of drug trafficking . It further noted the undisputed fact that the applicant had no ties with the GPE other than those directly flowing from his arrest and conviction .

ORG agreed with the ORG Secretary that the Netherlands’ interest in excluding the undesirable alien outweighed the limited possibilities of medical treatment in GPE . It further found that the ORG Secretary had correctly considered that the applicant was in no different position than other HIV - positive NORP nationals who were also affected by the problems of the NORP health care system and who were also not admitted to the GPE . This was all the more so since the applicant ’s disease had manifested itself in the GPE solely on his arrest and conviction . Had the applicant not been arrested and pursued his journey as planned , he would – like his HIV - positive compatriots – have had to rely on treatment in GPE .

ORG held that , in these circumstances , the fact that the applicant ’s disease manifested itself in the GPE did not give rise to an obligation for the Netherlands’ authorities to care for his health . It therefore rejected as ill - founded the applicant ’s appeal against the refusal to lift the decision declaring him an undesirable alien . As this decision rendered him ineligible for a residence permit , it also rejected the applicant ’s appeal against the refusal to grant him CARDINAL for medical reasons .

On DATE and in view of its decision on the applicant ’s CARDINAL appeals , ORG sitting in PERSON also dismissed the applicant ’s request for an interim measure pending the outcome of the proceedings on these CARDINAL appeals .

In a letter of DATE , an intern at ORG ) informed the applicant ’s lawyer that the applicant was currently receiving treatment for an HIV - infection at the ORG policlinic . His treatment had started with a CDCARDINAL level of CARDINAL and , under the influence of the treatment , this level had risen since . If the applicant remained under medical control and continued to take medication , his short and medium term prognosis was reasonable . However , past experience had shown that PERCENT of patients whose treatment had started with a CDCARDINAL level under CARDINAL , like the applicant , and who stopped taking medication , died within DATE , usually from an opportunistic infection such as pneumonia or toxoplasmosis .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Non-pecuniary damage - award

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 .

On DATE the applicant was arrested on suspicion of aggravated murder and harbouring criminals .

On DATE ORG remanded him in custody , referring to the gravity of the charges and the risk that he might abscond or interfere with the investigation .

On an unspecified date the applicant ’s case was joined with the cases of CARDINAL other persons , who had allegedly acted in conspiracy with the applicant .

In DATE the applicant and his co - defendants were charged with organising an armed criminal gang , several counts of aggravated robbery , kidnapping , extortion , infliction of serious injuries and murder .

On DATE ORG extended the applicant ’s detention , referring to the gravity of the charges , the previous criminal record and the risk of his absconding or re - offending .

On DATE the investigation was completed and CARDINAL defendants , including the applicant , were committed for trial before ORG .

The defendants asked for a trial by jury .

On DATE the ORG fixed a preliminary hearing for DATE to examine the request . It further held that the defendants should meanwhile remain in custody .

On DATE ORG ordered that the defendants be tried by jury and that they remain in custody pending trial .

On DATE ORG extended the defendants’ detention until DATE , referring to the gravity of the charges .

On DATE ORG extended the GPE detention , referring to the gravity of the charges and the risk that they might put pressure on witnesses and jurors .

On DATE ORG extended the defendants’ detention until DATE . ORG found that , in view of the gravity of the charges , it was “ opportune ” to keep the defendants in custody . It rejected their requests to release them under an undertaking not to leave the town , as it could not exclude the risk that they might put pressure on witnesses or jurors .

On DATE ORG extended the defendants’ detention until DATE . It found that the defendants might interfere with the proceedings , as they were charged with serious criminal offences , including the charge of being members of an armed criminal gang .

On DATE ORG extended the defendants’ detention until DATE for the same reasons as before .

The applicant appealed against the extension order of CARDINAL DATE . In his grounds of appeal he complained that ORG conclusions had been hypothetical and had not been supported by relevant facts . The court had relied essentially on the gravity of the charges against him , disregarding his arguments that he had permanent residence and employment , and was the only breadwinner for his elderly parents . On DATE ORG upheld the extension order on appeal , finding that it had been lawful and justified .

On DATE ORG extended the defendants’ detention until DATE , referring to the gravity of the charges and the defendants’ “ characters ” . The court also indicated that the purpose of the detention was to eliminate any risk of the defendants’ absconding , re - offending or hampering the court proceedings .

The applicant appealed , claiming that ORG had used a stereotyped formula to justify his detention and that its conclusions that he might abscond , reoffend or interfere with the proceedings were not supported by relevant facts . He had a permanent place of residence and employment and was taking care after his elderly parents .

On DATE ORG upheld the extension order on appeal , finding that it had been lawful , well - reasoned and justified . The defendants were charged with serious criminal offences , and they might therefore abscond , re - offend or obstruct the proceedings . The allegedly excessive length of their detention , their poor health , elderly parents or permanent place of residence were not sufficient reasons to warrant release .

On DATE ORG extended the GPE detention until DATE for the same reasons as before .

On DATE ORG extended the GPE detention until DATE , finding that there was no reason to vary the preventive measure .

On DATE ORG extended the defendants’ detention until DATE , referring to the gravity of the charges and the risk that they might abscond or intimidate the witnesses or jurors .

On DATE ORG rejected the applicant ’s request to be released under an undertaking not to leave the place of residence and extended the GPE detention until DATE . The decision reads as follows :

“ As the trial has not yet been completed , it is necessary to extend the GPE detention .

The court considers that the gravity of the charges justifies applying to the defendants a preventive measure in the form of detention .

However , in addition to the gravity of the charges - namely organisation of an armed gang ... and commission of assaults on citizens and murders - carrying a sentence of up to DATE imprisonment for each of the defendants , the court also takes into account other factors .

Thus , the court is entitled to believe that ... application to the defendants of an undertaking not to leave the town or other preventive measures will not exclude the possibility of their absconding or exercising pressure on participants to the proceedings and jurors .

The defendants’ argument that their detention had been excessively long is not in itself sufficient to warrant release .

The defendants have not produced any material showing the existence of factors making impossible [ sic ] their stay in detention facility conditions .

The court is not convinced by the GPE argument that they have not been granted access to the materials submitted by the prosecution in support of their requests for extension . The court has at its disposal only the materials from the criminal case file , which had been studied by the defendants .

The court considers that the grounds for the detention of the defendants , charged with serious and particularly serious criminal offenses , are relevant and sufficient . Their detention serves the interest of society , as it prevents the commission of similar criminal offences and ensures high - quality and effective examination of the present criminal case .

The criminal case file contains sufficient evidence against each defendant justifying an extension of their detention ... ”

On DATE ORG extended the defendants’ detention until DATE , repeating verbatim the decision of DATE .

On DATE ORG extended the defendant ’s detention until DATE , repeating verbatim the decision of DATE .

The proceedings are still pending before the trial court .

Since DATE the applicant has been detained in detention facility GPE no . CARDINAL ( IZ-CARDINAL/CARDINAL ) in GPE .

According to a certificate of DATE issued by the facility administration and submitted by the Government , from DATE to DATE the applicant was held in cells CARDINAL . CARDINAL , CARDINAL and CARDINAL , measuring CARDINAL sq . m , QUANTITY m and QUANTITY . m respectively . It was not possible to establish the number of inmates in each cell , as the detention facility registers for that period had been destroyed on expiry of the statutory storage time - limit .

Since DATE the applicant has been held in CARDINAL different cells . Cells nos . CARDINAL and CARDINAL measured QUANTITY . m and housed CARDINAL inmates . Cells nos . CARDINAL , DATE , CARDINAL , CARDINAL and CARDINAL measured QUANTITY . m and housed CARDINAL to CARDINAL inmates . Cell no . CARDINAL measured QUANTITY m and housed CARDINAL inmates . Cells nos . CARDINAL and CARDINAL measured QUANTITY m and housed from CARDINAL inmates . Cell no . CARDINAL , where the applicant was held from CARDINAL to DATE and from CARDINAL to DATE , measured CARDINAL sq . m. and housed CARDINAL inmates , including the applicant . Cell no . CARDINAL measured QUANTITY m and housed CARDINAL inmates . Cell no . CARDINAL measured QUANTITY m and housed CARDINAL inmates . Cell no . CARDINAL measured QUANTITY metres and housed CARDINAL to CARDINAL inmates . From DATE the applicant was held alone in punishment cell no . CARDINAL .

Relying on certificates of DATE from the facility administration , the Government further submitted that the applicant had at all times had a separate bunk and had been provided with bedding . The cells were naturally illuminated and ventilated through the windows and were also equipped with fans and fluorescent lamps which functioned during DATE and at TIME . The average temperature inside was CARDINAL to QUANTITY in DATE and CARDINAL to CARDINALº C in DATE . Inmates had an TIME - long DATE walk .

It follows from the same certificates that all cells were equipped with a lavatory bowl . This was separated from the living area by a brick partition of CARDINAL in height . The dining table was situated QUANTITY away from the toilet bowl . There were no insects or rodents in the detention facility , as all the cells were disinfected DATE . The inmates were allowed to take a shower once DATE and were provided at that time with clean bedding and towels . Finally , the Government submitted that inmates were provided with food CARDINAL times a day . Boiled drinking water was distributed DATE .

The applicant did not dispute the cell measurements or the number of inmates per cell . He stated , however , that there were not sufficient bunks for the inmates and that they had to take turns to sleep . He also disagreed with the ORG ’s description of the sanitary conditions . The cells were smoky and noisy . The artificial light was never switched off , disturbing the applicant ’s sleep . There was no ventilation and it was extremely hot in DATE . In DATE it was very cold . There was no lavatory bowl ; instead , there was a hole in the floor which inmates used to relieve themselves . The partition separating the toilet facilities from the living area did not offer sufficient privacy and the person using the toilet was in view of the other inmates and the wardens . The dining table was very close to the toilet . CARDINAL persons could sit at it , and the other inmates ate sitting on the floor .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( обязательство о явке ) ( Article CARDINAL of the CCrP ) .

When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Detention may be ordered by a court if the charge carries a sentence of CARDINAL years’ imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .

After arrest the suspect is placed in custody “ during the investigation ” . The period of detention during the investigation may be extended beyond DATE only if the detainee is charged with a serious or particularly serious criminal offence . No extension beyond DATE is possible ( LAW DATE ) . The period of detention “ during the investigation ” is calculated up to DATE when the prosecutor sends the case to the trial court ( LAW ) .

From the date the prosecutor forwards the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ during the trial ” ) . The period of detention “ during the trial ” is calculated up to the date the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW CARDINAL and CARDINAL ) .

Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG 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 .


Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The applicant , a NORP citizen of NORP origin , was born in DATE . At the time of the events giving rise to the present application , he lived in the town of GPE , located within the administrative jurisdiction of the province of ORG , in south - east GPE .

The facts of the case , particularly concerning events which took place on DATE , are disputed by the parties .

The facts as presented by the applicant are set out in Section B below ( see paragraphs CARDINAL - CARDINAL ) . The Government 's submissions concerning the events are summarised in Section C below ( see paragraphs CARDINAL - CARDINAL ) . The documentary evidence submitted by the parties is summarised in Section D below ( see paragraphs LAW ) .

NORP In DATE the applicant 's son , PERSON , lived in ORG where he worked for ORG , a business which sold foodstuffs wholesale to small businesses and security and military establishments in the region .

At TIME on DATE PERSON , together with his colleague PERSON , left ORG to go to the town of ORG to sell foodstuffs . They used a small lorry owned by ORG . They were accompanied by PERSON 's father - in - law PERSON , his paternal uncle PERSON and a man called PERSON . At PERSON , PERSON disembarked from the vehicle due to overcrowding and continued his journey in another vehicle .

The lorry came off LOC at the ORG turn - off and headed towards the town of ORG . At TIME , QUANTITY before the ORG fork , the vehicle slowed to a halt as a result of a police minibus blocking the width of the road . Thereafter , CARDINAL police officers surrounded the van with firearms and proceeded to carry out an identity check of all the occupants . This resulted in PERSON and ORG being ordered out of the lorry and taken by a police minibus to the police checkpoint at the entrance to the ORG district . The other occupants were told to follow in the lorry .

The CARDINAL men were told to wait at the police checkpoint at Lice without receiving an explanation for their detention . PERSON , who had by then arrived at the police point in the other vehicle , sought an explanation but was stopped by the police . After TIME a grey - coloured ORG saloon car , with the registration number CARDINAL ORG , arrived . CARDINAL plain - clothed police officers with pistols got out . CARDINAL of the police officers was a DATE , of medium height , wearing a grey jumper and holding a walkie - talkie . This police officer proceeded to ask who owned the lorry and what names each of the men were known by in the village from where they came . PERSON replied “ ORG ” and PERSON PERSON replied “ Galevan ” .

Thereafter the plain - clothes police officers informed the men that they were to be taken back to ORG , to ORG of the Police , as there was a problem concerning some cheques . PERSON and PERSON said to the police that they had simply boarded the lorry as passengers and had nothing to do with any cheques . However , they , together with ORG , were ordered to drive the lorry back to ORG , in front of the ORG . PERSON was placed into the back of the ORG , in between CARDINAL police officers .

The vehicles stopped outside ORG , located at the entrance to ORG , where the CARDINAL men were told to remain in their respective vehicles . CARDINAL officers then entered the ORG . TIME more police cars arrived with CARDINAL men in each vehicle , who proceeded to talk with the police who had detained the men in LOC . The CARDINAL cars were similar to the ORG .

At this point PERSON , who was still in the ORG , indicated to PERSON and PERSON that they were in danger by biting his lip . As a result , PERSON became distressed and panicked , saying “ They are going to kill me ” . He was given permission to go to the toilet , which led to all CARDINAL men being placed in the hallway of the ORG .

After TIME CARDINAL plain - clothes police officers from the CARDINAL cars that had arrived later entered the hall , carrying firearms . They asked “ Which of you are PERSON and PERSON ? ” Both men identified themselves and were ordered to go with the officers to CARDINAL of the cars which had arrived later . A tall man next to the officer with the walkie - talkie ordered them to turn to face the car whereupon they were blindfolded by a heavily - built officer who then pushed them into the back of the car and proceeded to sit next to them .

NORP The officer with the walkie - talkie sat in the front of the vehicle , and enquired as to whether they knew what offences they had committed to which ORG replied , “ No ” . PERSON said , “ It was the PERSON shoes . ” The police officer then enquired where they were taking the shoes . PERSON replied , “ There were CARDINAL pairs . I was taking them to the mountains ” . The officer then proceeded to punch PERSON , stating , “ Son of a whore , are there still such macho men left in the south - east ? ”

The car then set off . The officer informed them that they were being taken to the military and added “ Do you know what the military do ... you 'll find out when you get there . ” He then instructed the driver to turn onto LOC . The car eventually stopped outside ORG where they were taken to a cell in which ORG , still blindfolded , was handcuffed to the door . He heard the officer order PERSON to strip .

Thereafter , ORG heard PERSON 's screams and cries which continued for TIME . PERSON was then ordered to strip , after which he was tortured for TIME : he had his testicles squeezed , was hosed down with cold water and electric shocks were applied to him . He was then interrogated by a “ Commander ” in front of CARDINAL people .

Gürgün Can , ORG 's cousin and business partner , was also placed in custody . On DATE , ORG was placed in another cell next to an inmate whom he correctly suspected was Can . His blindfold was removed . Thereafter both men were subjected to noise being played on a tape machine at an unbearably high level .

On DATE of custody GPE was taken for interrogation and again subjected to beatings , during which he continued to deny all accusations . His interrogators then stated , “ You 're very lucky . Have n't you heard ? We have killed PERSON . He kicked the bucket . If they had n't killed him , we 'd have murdered you ” . Thereafter they informed him , “ Your time is up ... You have CARDINAL choices . Either you will go to join PERSON , or we 'll send you to prison and you 'll kill CARDINAL people with the poison we will give you ” . They further added , “ Look , there are teams here . If we surrender you to them , they will kill you like PERSON ” .

Vehbi was taken to an unknown place . At the entrance his interrogators told him , “ Do n't you know where this is ? Look , there are teams here . If we surrender you to them , they will kill you like PERSON ” . ORG continued to assert his innocence , whereupon his interrogator said , “ I 'm telling you , you only have CARDINAL choices . Either I will surrender you to the teams , or you 'll agree to go to the prison . ” At that point GPE was taken inside and placed in a cell where he was told , “ If your friend had not died , we 'd have killed you now . It appears you are lucky . ”

On DATE of custody GPE was given a typed statement to sign . TIME he was taken to the Dağkapı health clinic where he was threatened and told not to make any allegations , but the doctor , in any event , did not examine him .

On DATE CARDINAL people were brought before ORG ( hereinafter “ the ORG ” ) ; GPE , PERSON and PERSON Can were among them . The first CARDINAL were released by the Prosecutor whereas Can was released by a judge . PERSON was remanded in custody .

On DATE , that is DATE after PERSON was detained , the applicant applied to ORG to obtain information concerning the detention of his son . He was informed that his son was not in custody and was referred to ORG where he received the same information .

The applicant was subsequently informed by the Prosecutor in the town of ORG that PERSON had died in a clash between security forces and the ORG . The applicant had the body of his son exhumed from the ORG cemetery and buried him in his home town of GPE .

An official ORG stated that the CARDINAL men had been observed at TIME in an ORG lorry , with the registration number CARDINAL ERS CARDINAL , travelling along the ORG road . They had subsequently been detained for suspected participation in terrorist activities , namely the dropping off of supplies to ORG members at the ORG petrol station between the ORG turn - off and FAC , at TIME

The report stated that PERSON , PERSON and ORG were taken to ORG for interrogation , while PERSON was handed over by the ORG to ORG to help , voluntarily , set up an ambush at the said petrol station . The report further stated that at TIME armed ORG members came to the petrol station and an armed clash ensued in which PERSON was killed .

The applicant is convinced that PERSON did not die in a clash but was killed in custody under torture . PERSON witnessed PERSON being taken into custody by the police and heard him being tortured .

On DATE ORG received information to the effect that a small lorry with the registration number CARDINAL ERS CARDINAL would be carrying logistical equipment to ORG terrorists and that the terrorists would meet with PERSON , PERSON , PERSON and PERSON , who would be travelling in the lorry .

Necessary security measures were taken and at QUANTITY the lorry was stopped at the ORG fork and PERSON was questioned . He stated that he was going to deliver the equipment to the terrorists at a location close to the ORG petrol station near the ORG fork at TIME Thereafter he was arrested in order to be taken to the meeting point . The others were taken to ORG for questioning .

Upon reaching the meeting point , the necessary security measures were taken and at TIME terrorists arrived to collect the equipment from PERSON . At that point the police asked the terrorists to surrender . However , instead of surrendering , the terrorists opened fire at the security forces and the firing continued for TIME . PERSON made an attempt to escape from the security forces but was shot and killed in the crossfire . CARDINAL terrorists were also shot and killed but the others managed to escape .

A search was carried out at the scene by soldiers from ORG . During the search , CARDINAL PERSON rifles with serial numbers DATE POCARDINAL and DATE SS CARDINAL , CARDINAL cartridges and CARDINAL chargers were found . Various logistical supplies were also found in the lorry which belonged to PERSON and these supplies were handed over to the competent judicial authorities .

On DATE the office of ORG carried out autopsies on the bodies of the CARDINAL deceased persons .

On DATE the applicant went to the ORG 's office in ORG where he was shown the photographs of his son . In these photographs , the body of the applicant 's son was seen lying next to the bodies of the CARDINAL terrorists . The applicant formally identified his son .

On DATE PERSON , PERSON , PERSON , GPE Can and PERSON were questioned by ORG , who on DATE filed an indictment with that court in which the CARDINAL men were accused of the offence of membership of a terrorist organisation .

On DATE ORG acquitted the CARDINAL men for a lack of sufficient evidence .

The following information appears from the documents submitted by the parties .

According to the custody ledgers , PERSON was arrested at TIME , and Gürgün Can at TIME , on DATE .

A handwritten incident report was drawn up and signed by CARDINAL special police team members and CARDINAL gendarmes at TIME on DATE . There is no information in the document to establish the identities of these officers . According to the report , PERSON , PERSON , PERSON and ORG were arrested on DATE during an investigation into the actions of the ORG . PERSON reportedly told the arresting officers that he was planning to meet with members of the ORG at TIME at the ORG petrol station and deliver to them the supplies which he had in the back of his lorry ( registration number CARDINAL ERS CARDINAL ) . PERSON was also reported to have told the arresting officers that he was willing to accompany them to the petrol station where they could set up an ambush in order to apprehend the ORG members . The other CARDINAL arrested persons were then transferred to ORG for questioning . The police and gendarme officers , together with PERSON , went to the petrol station where they took up their positions – PERSON at the place where , according to his agreement with the ORG members , he was supposed to wait , and the police hiding in the vicinity .

CARDINAL ORG members arrived at the petrol station at TIME When asked by the police officers to surrender , the ORG members opened fire and an armed clash ensued . At that point police officers made an attempt to approach PERSON in order to take him away from the scene . However , he started running towards the ORG members and was shot in the crossfire . The clash continued for TIME . Bodies of CARDINAL of the terrorists and their weapons were found at the scene after the clash had ended . The body of PERSON , who had been shot a number of times , was also lying next to those of the CARDINAL ORG members .

On DATE Mr ORG , ORG district , in whose jurisdiction the killings had taken place , visited ORG in ORG where the CARDINAL bodies had been taken . He was accompanied by PERSON . The Prosecutor and the doctor examined the bodies and drew up a report in which they recorded their findings . Each of the QUANTITY bodies was given a number because their identities were not known . ( The body of PERSON was number CARDINAL . ) The bodies were also photographed .

Rigor mortis had set in in bodies number CARDINAL and CARDINAL but post mortem hypostasis was not observed . As regards body number CARDINAL , neither rigor mortis nor post mortem hypostasis was observed .

Examination of body number one revealed that the right frontal region and the parietal region of the brain were completely destroyed , whereas the occipital region was partly destroyed . There was also an injury below the right knee , caused by a rocket missile . The body bore no marks of blows .

In the course of the examination of body number CARDINAL , CARDINAL bullet entry wounds on the chest , a number of bullet entry wounds in the throat and CARDINAL bullet entry wound on the left foot , as well as the corresponding exit wounds were observed . The body bore MONEY of blows . The report further states that this person was wearing “ terrorist clothing ” .

Finally , the examination of body number CARDINAL revealed a bullet entry wound in the occipital region of the brain and a corresponding exit wound on the chin ; a bullet entry wound QUANTITY below the left collar bone and a corresponding exit wound below the collar bone ; an injury on the right shoulder , measuring QUANTITY , caused by a firearm , and finally CARDINAL shrapnel injuries below the right collar bone .

The doctor concluded that the cause of death for bodies number CARDINAL and CARDINAL was the destruction of vital organs , and for body number CARDINAL acute blood loss caused by the firearm injuries . He added that the cause of the deaths was so obvious as to leave no doubt in his mind and therefore there was no reason to carry out classical autopsies .

The Prosecutor , after having examined the bodies , issued burial licenses and instructed a municipal worker to arrange for the burial of the bodies of the “ CARDINAL terrorists who had no relatives ” .

Also on DATE ORG sent a letter to the commander of ORG and asked for copies to be forwarded to him of the documents pertaining to the investigation which the commander had carried out into the incident . It further appears from this letter that the gendarme commander had informed the Prosecutor by telephone earlier in DATE about the “ killing of CARDINAL terrorists whose identities are not known ” .

On DATE the applicant went to the office of ORG where he was shown the photographs of the CARDINAL bodies . He identified body number QUANTITY as that of his son PERSON . He also asked for permission to bury his son in his home village .

On DATE ORG had the ORG municipality exhume the body of PERSON . It was handed over to the applicant .

On DATE Captain PERSON , the commander of ORG , sent a letter to ORG , in reply to the latter 's letter of DATE ( see paragraph CARDINAL above ) . Mr PERSON wrote that at TIME on DATE his station had been informed by telephone that a number of logistical supplies would be delivered to members of the ORG at the ORG petrol station in a lorry . No information had been given about the make or the registration number of the lorry . An operation had been planned by the security forces in the area . At TIME a number of ORG members had arrived at the ORG petrol station in an ORG lorry , with the registration number CARDINAL ERS CARDINAL . The terrorists , when asked to stop by members of the security forces , had responded by opening fire . A short armed clash had ensued and , during the search which had been carried out after the clash , the bodies of CARDINAL terrorists had been found . CARDINAL PERSON rifles and ammunition belonging to the terrorists had also been retrieved at the scene . The supplies in the lorry had later been destroyed by the soldiers .

Captain PERSON annexed to his letter , inter alia , an on - site incident report and a number of documents which had apparently been found in the lorry . The Government did not make these documents available to either the ORG or the ORG . Captain PERSON further forwarded to the Prosecutor the PERSON rifles and the ammunition retrieved at the site of the armed clash .

On DATE ORG drew up records of confiscation in which the items sent to his office by Captain PERSON were listed . These items included order forms , consignment ledgers and bills belonging to ORG ( item no . CARDINAL ) , the ORG lorry with the registration number CARDINAL ERS CARDINAL ( item no . CARDINAL/CARDINAL ) , and the rifles and ammunition found at the site of the operation ( item no . CARDINAL/CARDINAL ) .

On DATE a statement was taken from PERSON by ORG at ORG . Mr PERSON denied being a member of the ORG but added that PERSON had had connections with them . He also stated that on DATE PERSON had been giving him a lift in his lorry to the town of GPE when the vehicle had been stopped by members of the security forces near the town of ORG . He , PERSON , ORG and PERSON had been arrested on the spot .

On DATE the Prosecutor at ORG filed an indictment with that court , accusing PERSON , PERSON , ORG , PERSON and PERSON of membership of a terrorist organisation , namely the ORG . In this indictment , PERSON was referred to as the “ terrorist who was arrested on DATE together with PERSON Can by members of the security forces , and who was later killed at the ORG petrol station while trying to run away from the security forces during the armed clash between the terrorists and the security forces ” . PERSON , PERSON and PERSON were accused of attempting to take CARDINAL pairs of GPE shoes to terrorists on DATE in a lorry with the registration number CARDINAL ERS CARDINAL , before being arrested by members of the security forces . The indictment also made reference to a number of statements taken from ORG , PERSON and PERSON . With the exception of the statement taken from PERSON , these statements have not been made available to the ORG bodies .

On DATE ORG decided that he lacked jurisdiction to prosecute “ the CARDINAL terrorists killed in the operation on DATE ” , and sent the file to the ORG 's office at ORG . According to this decision , a number of terrorists had arrived at the ORG petrol station at TIME in an ORG lorry , with the registration number CARDINAL ERS CARDINAL , and CARDINAL of the terrorists had been killed . The body of CARDINAL of the deceased had subsequently been identified as that of PERSON .

On DATE the Prosecutor at ORG instructed ORG , the ORG gendarme headquarters , the ORG police headquarters and , finally , the GPE gendarme headquarters to search for the perpetrators of the incident “ during which CARDINAL of the terrorists were killed in the armed clash between the terrorists and the security forces ” . The Prosecutor asked to be kept informed DATE of any possible developments in the investigation .

On DATE the commander of the PERSON gendarme station , near which the incident had taken place , sent a report to ORG . According to this report , a group of terrorists had approached the lorry to take delivery of logistical supplies . When asked by members of the security forces to surrender , the terrorists had opened fire . After the incident CARDINAL of the terrorists had been found dead . The report finally stated that it had not yet been possible to establish the identities of the “ perpetrators of the incident ” . This report was forwarded to the ORG 's office at ORG on DATE by the commander of ORG . In his covering letter , the commander referred to a letter apparently sent to him by the Prosecutor on DATE .

On DATE ORG held that there was insufficient evidence to conclude that the CARDINAL defendants had aided and abetted a terrorist organisation , and it ordered their acquittal . The court noted that the defendants had confessed , in statements taken from them by the police while they were in custody , to having committed the offence in question . The court noted that the defendants had later denied the contents of their earlier statements . Copies of the statements taken from the defendants during the criminal proceedings have not been made available to the ORG bodies . ORG further ordered the return of the confiscated ORG lorry ( registration number CARDINAL ERS CARDINAL ) to its owner because it had not been established that the lorry had been used in the commission of an offence . The decision became final on DATE .

On DATE the judge at ORG asked the Prosecutor at ORG to forward to him a copy of the report of the examination carried out on the body of PERSON ( see paragraphs CARDINAL - CARDINAL above ) . The judge asked for this report to be sent to him “ before the forthcoming hearing on DATE ” .

On DATE the Prosecutor at ORG sent the requested report to the ORG judge .

On DATE the Prosecutor at ORG repeated the above mentioned instructions to ORG , the ORG gendarme headquarters , the ORG police headquarters and finally the GPE gendarme headquarters ( see paragraph CARDINAL above ) .

DATE . On DATE he also sent a letter to ORG saying that neither the ownership of the ORG lorry nor the manner in which the terrorists had acquired and used it had yet been established . He further asked ORG to carry out a ballistics examination of the rifles and the bullets , numbered as item no . CARDINAL/CARDINAL ( see paragraph CARDINAL above ) .

On DATE the Prosecutor at ORG asked ORG to forward to his office the confiscated items registered as nos . CARDINAL/CARDINAL - CARDINAL ( see paragraph CARDINAL above ) .

On DATE the ORG branch of ORG sent a letter to ORG at ORG informing him of their intention to bring a civil action against those responsible for the killing of PERSON to claim compensation . The Prosecutor was asked to send to ORG the documents pertaining to the investigation into the killing of PERSON .

On DATE the Prosecutor at ORG forwarded to the Pensions ' Directorate the documents requested , and informed the latter that the perpetrators had not yet been arrested . The Prosecutor further stated that logistical supplies had been taken to the petrol station by terrorists who had refused to surrender to the security forces .

On DATE the Prosecutor at ORG drew ORG attention to the fact that the owner of the ORG lorry had still not been established ( see paragraph DATE above ) . He also repeated his request of DATE and urged ORG to forward to his office the items registered as nos . CARDINAL/CARDINAL - CARDINAL ( see paragraph CARDINAL above ) . He finally repeated his instructions of DATE to carry out ballistics examinations on the rifle and the ammunition .

Also on DATE the Prosecutor at ORG repeated his instructions to ORG , the ORG gendarme headquarters , the ORG police headquarters and finally the GPE gendarme headquarters ( see paragraph CARDINAL above ) . The Prosecutor further instructed the investigating authorities to establish the identities of the CARDINAL dead terrorists and “ to apprehend them ” .

The applicant submitted to the ORG copies of statements taken from the applicant and also from PERSON by the applicant 's NORP lawyer . The statement taken from PERSON formed the basis of the applicant 's submissions summarised in Section B above ( see paragraphs CARDINAL - CARDINAL ) .

A full description of the relevant domestic law and practice , as well as relevant international reports , may be found in PERSON v. GPE ( [ ORG ] , no . DATE , § § DATE , ORG CARDINAL-VII ) .


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance;Free legal assistance)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and is currently serving a prison sentence in LOC .

On DATE the applicant was arrested on suspicion of murder . He was remanded in custody pending the investigation and trial . According to the applicant , from DATE to CARDINAL DATE no medical assistance was available to him and from DATE to DATE he was detained in appalling conditions .

On DATE the applicant broke a toe on his right foot . The fracture caused him severe pain which allegedly rendered him unfit to attend the trial on CARDINAL and DATE .

On DATE ORG found the applicant guilty of murder , abduction , disturbance of the peace and illegal possession of firearms , and sentenced him to DATE imprisonment . Both the applicant and his lawyer submitted statements of appeal .

On DATE the applicant was allegedly beaten by guards . He complained to the prosecutor but to no avail .

On an unspecified date ORG of GPE dismissed the applicant ’s request for the appointment of a lawyer to represent him before the appellate court , noting that “ the applicable rules of criminal procedure [ did ] not provide for the appointment of a public defender to represent a defendant in appeal proceedings ” .

On DATE ORG acquitted the applicant on the charge of disturbance of the peace , upheld the remainder of the verdict and reduced the applicant ’s sentence to DATE imprisonment . The applicant was not present or represented during the hearing . The prosecutor was present and made submissions to the court .

On DATE the ORG reclassified the applicant ’s conviction in accordance with the latest amendments to LAW , reducing his sentence to DATE imprisonment .

On DATE the Deputy Prosecutor General of GPE asked the Presidium of ORG of GPE for a supervisory review of the judgment of DATE in view of a violation of the applicant ’s right to be represented by a ORG - appointed lawyer before the appellate court .

On DATE ORG granted the prosecutor ’s request and remitted the matter for further consideration to the ORG of ORG .

On an unspecified date ORG appointed counsel PERSON to represent the applicant in the supervisory - review proceedings .

On DATE the Presidium of ORG quashed the judgment of DATE by way of supervisory review and remitted the matter for fresh consideration . The court expressly acknowledged the violation of the applicant ’s right to legal assistance . The applicant did not participate in the hearing . Counsel PERSON was present and made submissions to the court .

On DATE ORG again reclassified the applicant ’s conviction in accordance with the latest amendments to LAW , reducing his sentence by DATE .

On DATE and DATE ORG received additional statements of appeal from the applicant whereby he also requested the court to appoint a public defender to represent him . The court appointed counsel PERSON On DATE , DATE , DATE and DATE counsel PERSON studied the case - file .

The applicant requested to take part in the appeal hearing in person . On DATE ORG granted him leave to attend in person and ordered the applicant ’s temporary transfer to a remand prison in GPE ( QUANTITY away from GPE ) to ensure his participation in the appeal hearing by means of video link .

On DATE ORG held the appeal hearing . The applicant participated in the hearing by means of a video link . Counsel PERSON attended the hearing and made submissions to the court . According to the applicant , he was provided with an opportunity to communicate with counsel PERSON prior to the hearing ( he did not provide further detail as regards the time and means of such communication ) . The court acquitted the applicant on the charges of disturbance of the peace and illegal possession of firearms , upheld the remainder of the verdict and reduced the applicant ’s sentence to CARDINAL years’ imprisonment . The court further granted counsel PERSON ’s application for reimbursement of his fee and awarded him MONEY ( RUB ) – approximately MONEY ( as per the Euro foreign exchange reference rate of ORG at DATE ) DATE to be paid by the applicant .

NORP The applicant provided the following description of the appeal hearing :

“ The appeal hearing was conducted by means of a video link . The video link was of poor quality . The image [ quality ] remained unchanged , but there were interruptions in the sound and not everything that was said was understandable . ... After the court opened the hearing I was invited to make a statement . Then I asked the court to admit to the case - file the documents that proved my innocence . These were the documents showing that secretary PERSON had not been present at a number of trial hearings and that my lawyer had been absent from CARDINAL of the court hearings . Despite that , the court hearing had not been adjourned and the court had proceeded with the examination of the witnesses . The [ trial ] court had not respected my right to defend myself and had proceeded with the examination of the case when I had a fracture [ of the toe ] . The court interrupted me , saying that I was deliberately delaying the proceedings and that they had other cases to consider after mine .

After the judge rapporteur had presented the case I was invited to present my complaint . However , when I started reading out my statement of appeal the judge interrupted me , saying that those issues had been already considered in the previous appeal hearing or had been submitted in the statements of appeal . The court heard the prosecutor and [ my ] counsel , who failed to present any argument in my defence . He merely suggested that the charges [ of illegal possession of firearms and disturbance of the peace ] should be dropped owing to the expiry of the statutory time - limit for prosecution or decriminalisation of the offence . Then the judges exited to the deliberations room without giving me a chance to make my final statement . When the judges returned and pronounced their decision , I realised that neither counsel , the prosecutor , nor the court had studied my case . They were simply giving the appearance of a hearing . ”

According to the applicant , in DATE numerous newspapers and television channels covered his case . In CARDINAL article the applicant was referred to as “ a gang leader ” . The regional officials who were quoted in the articles expressed the opinion that the applicant was guilty of murder , thus appearing to rule out the possibility that he had acted in self - defence .

For a summary of the relevant domestic provisions and practice , see the case of Sakhnovskiy v. GPE [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE .


Violation of Art. 9;Non-pecuniary damage - award

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre;Jean-Paul Costa;John Hedigan;Josep Casadevall;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

The applicant is a GPE ’s Witness . From DATE he attended various GPE ’s Witnesses religious services and he was baptised on DATE at DATE .

On DATE the applicant was registered as a person liable for military service with ORG ( ORG համայնքի զինվորական կոմիսարիատ ) .

On DATE the applicant , at DATE , was called to undergo a medical examination , following which he was declared fit for military service . The applicant became eligible for military service during the DATE spring draft ( DATE ) .

On DATE , at the outset of the draft , the applicant sent identical letters to ORG գլխավոր դատախազ ) , the Military Commissioner of GPE ( ՀՀ պաշտպանության նախարարության հանրապետական զինկոմիսար ) and ORG of ORG ( ՀՀ ազգային ժողովին առընթեր մարդու իրավունքների հանձնաժողով ) , with the following statement :

“ I , PERSON , born in DATE , inform you that I have studied the Bible since DATE and have trained my conscience by the Bible in harmony with the words of PERSON DATE , and I consciously refuse to perform military service . At the same time I inform you that I am ready to perform alternative civilian service in place of military service . ”

NORP In DATE a summons to appear for military service on CARDINAL DATE was delivered to the applicant ’s home . On DATE an official of ORG telephoned the applicant ’s home and asked his mother whether the applicant was aware that he had been called to appear at the FAC to commence military service DATE . TIME , the applicant temporarily moved away from his home for fear of being forcibly taken into the military .

On DATE and DATE officials from the ORG telephoned the applicant ’s mother , demanding to know his whereabouts . They threatened to take him into the military by force if he did not come voluntarily . On DATE , early in the morning , the officials came to the applicant ’s home . His parents were asleep and did not open the door . On the same date , the applicant ’s mother went to the ORG , where she stated that the applicant had left home and she did not know when he would come back . According to the applicant , the ORG made no further efforts to contact his family .

On DATE ORG ( ՀՀ ազգային ժողովի պետական-իրավական հարցերի հանձնաժողով ) sent a reply to the applicant ’s letter of DATE , stating :

“ In connection with your declaration , ... we inform you that in accordance with the legislation of GPE every citizen ... is obliged to serve in the NORP army . Since no law has yet been adopted in GPE on alternative service , you must submit to the current law and serve in the NORP army . ”

In DATE the applicant returned home , where he lived until his arrest in DATE .

On DATE ORG declared a general amnesty which applied only to those who had committed crimes before DATE and was to remain in force until DATE .

On DATE the Erebuni Military Commissar ( ORG համայնքի զինկոմիսար ) gave notice to ORG ( ORG համայնքի դատախազ ) that the applicant had failed to report for military service on CARDINAL DATE and was intentionally avoiding service in the army .

During DATE and on DATE the applicant , together with his father and his defence counsel , went on several occasions to ORG to enquire with the relevant investigator about his situation and to discuss the forthcoming proceedings .

On DATE the investigator instituted criminal proceedings under LAW on account of the applicant ’s draft evasion . According to the applicant , the investigator ’s superior , the prosecutor , refused to bring charges against him until further investigations had been carried out . On DATE the applicant , who apparently wanted to benefit from the above amnesty , complained about this to ORG ( ՀՀ գլխավոր դատախազություն ) . He received no reply to this complaint .

On DATE the investigator issued CARDINAL decisions in respect of the applicant : ( CARDINAL ) to bring a charge of draft evasion against the applicant under LAW ; ( CARDINAL ) to apply to the court for authorisation for the applicant ’s detention on remand ; ( CARDINAL ) to declare the applicant a fugitive and institute a search for him ; ( CARDINAL ) to apply to the court for authorisation to monitor the applicant ’s correspondence ; and ( CARDINAL ) to suspend the proceedings until the applicant had been found . This last order stated :

“ ... since , having undertaken investigative and search measures , the attempts to find the wanted [ applicant ] within DATE ... have been unsuccessful and his whereabouts are unknown , ... [ it is necessary ] to suspend the investigation ... and ... to activate the search measures aimed at finding the accused . ”

Neither the applicant nor his family were notified of these decisions , despite the fact that since DATE he had been living at the family home and that he had met with the investigator on several occasions in DATE and DATE .

On DATE the ORG and ORG of GPE ( ORG քաղաքի ORG և GPE համայնքների առաջին ատյանի դատարան ) authorised the monitoring of the applicant ’s correspondence and his detention on remand . Neither the applicant nor his family were notified about these decisions , and the investigating authority made no attempt to contact them until the applicant ’s arrest in DATE .

On DATE the Convention came into force in respect of GPE .

On DATE , while the applicant was at work , QUANTITY police officers went to his family home , informed his parents that he was on the wanted list and enquired about his whereabouts .

On DATE the police officers returned and accompanied the applicant to a local police station , where they drew up a record of the applicant ’s voluntary surrender which stated that the applicant , having found out that he was on the wanted list , decided to appear at the police station . On the same date , the applicant was placed in the PERSON detention facility .

On DATE the investigating authority resumed the criminal proceedings against the applicant .

On DATE the applicant was served with the DATE charge ( see paragraph CARDINAL above ) for the first time . During his questioning on the same date , the applicant submitted that he consciously refused to perform military service because of his religious beliefs but was ready to perform alternative civilian service instead .

On DATE , the applicant and his defence counsel were granted access to the case file . The bill of indictment was finalised on DATE and approved by the prosecutor on DATE .

On DATE the applicant ’s trial commenced in the ORG and ORG of GPE . The trial was adjourned until DATE because the applicant had not been served with a copy of the indictment .

On DATE , at the court hearing , the applicant made the same submissions as during his questioning ( see paragraph CARDINAL above ) .

On DATE , the ORG and ORG of GPE found the applicant guilty as charged and sentenced him to DATE and DATE in prison .

On DATE the prosecutor lodged an appeal against this judgment , seeking a heavier punishment . The appeal stated :

“ The [ applicant ] did not accept his guilt , explaining that he refused [ military ] service having studied the Bible , and as a GPE ’s Witness his faith did not permit him to serve in the armed forces of GPE .

[ The applicant ] is physically fit and is not employed .

I believe that the court imposed an obviously lenient punishment and did not take into consideration the degree of social danger of the crime , the personality of [ the applicant ] , and the clearly unfounded and dangerous reasons for [ the applicant ’s ] refusal of [ military ] service . ”

On DATE the applicant lodged objections in reply to the prosecutor ’s appeal in which he argued that the judgment imposed was in violation of his freedom of conscience and religion guaranteed by LAW , LAW and other international instruments . He further argued that the absence of a law on alternative civilian service could not serve as a justification for imposing criminal liability on a person refusing military service for reasons of conscience .

On DATE , in the proceedings before the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) , the prosecutor argued , inter alia , that a heavier sentence should be imposed also because the applicant had gone into hiding during the investigation . According to the applicant , during the appeal hearing pressure was put on him to abandon his religious beliefs regarding military service ; in particular , both the prosecutor and CARDINAL of the judges offered to terminate his case if he dropped his objection and performed his military duty .

On DATE , ORG decided to grant the prosecutor ’s appeal and increased the applicant ’s sentence to DATE , stating that :

“ The court of first instance , when sentencing [ the applicant ] , took into account that the offence [ the applicant ] had committed was not a grave one , that he was young , he had a clean record , he had confessed his guilt , he had actively assisted in the disclosure of the crime and he had sincerely repented .

However , in the course of the appeal proceedings it was established that not only does [ the applicant ] not accept his guilt , but he does not regret having committed the crime ; not only did he not assist in the disclosure of the offence , but he hid from the investigation and his whereabouts were unknown , so a search for him had to be initiated .

Based on these circumstances , as well as taking into account the nature , motives and degree of social danger of the crime , ORG considers that the prosecutor ’s appeal must be granted , and a heavier and adequate punishment must be imposed on [ the applicant ] . ”

On an unspecified date , the applicant lodged an appeal on points of law against that judgment , in which he raised arguments similar to the ones made in his objections of DATE ( see paragraph CARDINAL above ) . He reiterated his willingness to perform alternative civilian service and submitted that , instead of spending DATE in prison , he could have done socially useful work . According to him , such a possibility was envisaged under section CARDINAL of LAW ( see paragraph CARDINAL below ) . The applicant further argued that the principle of alternative service was enshrined in section CARDINAL of LAW ( see paragraph CARDINAL below ) , and the absence of appropriate implementation mechanisms could not be blamed on him .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) upheld the judgment of ORG , finding , inter alia , that the rights guaranteed by LAW were subject to limitations under its LAW ( see paragraph CARDINAL below ) , in the interests , for example , of ORG security , public safety and the protection of public order . Similar limitations were also envisaged by LAW .

NORP On DATE the applicant was released on parole after having served CARDINAL of his sentence .

The relevant provisions of the LAW read as follows :

“ Everyone has the right to freedom of thought , conscience and religion . ”

“ The fundamental rights and freedoms of man and the citizen enshrined in Articles DATE the LAW can be restricted only by law if necessary for the protection of ORG security and public safety , public order , public health and morals and the rights , freedoms , honour and reputation of others . ”

“ Every citizen shall participate in the defence of GPE in accordance with the procedure prescribed by law . ”

The relevant provisions of LAW read as follows :

“ Evasion of a regular call - up to active military service is punishable by imprisonment for a period of DATE . ”

“ ( CARDINAL ) ORG liability is the constitutional obligation of citizens to participate in the defence of GPE . ”

“ ( CARDINAL ) ORG conscripts and officers of the first category reserve whose age is DATE [ and ] who have been found physically fit for military service in peacetime shall be drafted for compulsory military service . ”

“ ( CARDINAL ) [ A citizen ] may be exempted from compulsory military service : ( a ) if the national recruiting commission recognises him to be unfit for military service on account of poor health and strikes him off the military register ; ( b ) if his father ( mother ) or brother ( sister ) died while performing the duty of defending GPE or in [ the NORP ] armed forces and other troops , and he is the only male child in the family ; ( c ) by government decree ; ( d ) if he has performed compulsory military service in foreign armed forces before acquiring NORP citizenship ; or ( e ) he has a science degree ( “ Candidate ” of ORG or Doctor of Science ) and is engaged in specialised , scientific or educational activities . ”

( CARDINAL ) NORP In specific cases the Government may define categories of citizens and particular individuals to be granted deferral from conscription into compulsory military service . ”

The relevant provisions of the Freedom of Conscience and Religious Organisations Act read as follows :

“ ORG of GPE adopts this law on freedom of conscience and religious organisations , ... being guided by the principles of human rights and fundamental freedoms established in international law and faithful to the provisions of LAW ... ”

“ All civic obligations envisaged by law apply equally to believing members of religious organisations as they do to other citizens .

In specific cases of contradiction between civic obligations and religious convictions , the matter of discharging one ’s civic obligations can be resolved by means of an alternative principle , according to the procedure prescribed by law , by mutual agreement between the relevant ORG authority and the given religious organisation . ”

The relevant provisions of LAW , with their subsequent amendments introduced on DATE , read as follows :

“ ( CARDINAL ) ORG service , within the meaning of this LAW , is service replacing the compulsory fixed - period military service which does not involve the carrying , keeping , maintenance and use of arms , and which is performed both in military and civilian institutions .

( CARDINAL ) ORG service includes the following types : ( a ) alternative military [ service , namely ] military service performed in the armed forces of GPE which does not involve being on combat duty or the carrying , keeping , maintenance and use of arms ; and ( b ) alternative labour [ service , namely ] labour service performed outside the armed forces of GPE .

( CARDINAL ) The purpose of alternative service is to ensure the fulfilment of a civic obligation to the motherland and society and it does not have a punitive , demeaning or degrading nature . ”

“ ( CARDINAL ) An NORP citizen whose creed or religious beliefs do not allow him to carry out military service in a military unit , including the carrying , keeping , maintenance and use of arms , may perform alternative service . ”

It follows from the materials available to ORG on the legislation of the member ORG that almost all the member GPE which ever had or still have compulsory military service introduced laws at various points recognising and implementing the right to conscientious objection , some of them even before becoming members of ORG . The earliest was GPE in DATE , followed by GPE ( DATE ) , GPE ( DATE ) , the GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE and GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) and GPE ( DATE ) .

A big wave of recognitions ensued in DATE and DATE , when almost all the then or future member GPE which had not yet done so introduced such a right into their domestic legal systems . These include GPE ( DATE ) , GPE and GPE ( DATE ) , GPE ( DATE ) , GPE , GPE and GPE ( DATE ) , GPE , the former GPE ( which in DATE divided into CARDINAL member GPE : GPE and GPE , both of which retained that right ) and GPE ( DATE ) , GPE ( DATE ) , GPE and GPE ( DATE ) , GPE , GPE and GPE ( DATE ) , GPE and GPE ( DATE ) and GPE ( DATE ) .

From the remaining member GPE , “ the former GPE ” , which as early as in DATE had provided for a possibility to perform non - armed military service , introduced a genuine alternative civilian service in DATE . GPE and GPE , which in DATE and DATE respectively had constitutionally recognised the right to conscientious objection , fully implemented it through laws in DATE and DATE respectively . GPE constitutionally recognised the right to conscientious objection in DATE but no implementing laws have yet been introduced . Conscientious objectors are not recognised in GPE .

In most of the member GPE where conscientious objection was or is recognised and fully implemented , conscientious objector status could or can be claimed on the basis not only of religious beliefs but also of a relatively broad range of personal beliefs of a non - religious nature , the only exceptions being GPE and GPE , where the right to claim conscientious objector status is limited to religious grounds alone . In some member GPE , the right to claim conscientious objector status only applied or applies during peacetime , as in GPE , GPE and GPE , while in others , like GPE and GPE , the right to claim such status by definition applies only in time of mobilisation or war . Finally , some member GPE , like GPE , allow certain categories of conscientious objectors to be exempted also from alternative service .

On DATE ORG of ORG adopted its Opinion no . CARDINAL on GPE ’s application to join ORG . ORG concluded its opinion by recommending ORG to invite GPE to become a member , on the understanding that a number of commitments would be fulfilled within stipulated time - limits . The relevant extract from the opinion reads as follows :

“ CARDINAL . ORG takes note of the letters from the President of GPE , the speaker of the parliament , the Prime Minister and the chairmen of the political parties represented in the parliament , and notes that GPE undertakes to honour the following commitments : ... to adopt , within DATE of accession , a law on alternative service in compliance with NORP standards and , in the meantime , to pardon all conscientious objectors sentenced to prison terms or service in disciplinary battalions , allowing them instead to choose , when the law on alternative service has come into force , to perform non - armed military service or alternative civilian service ; ... ”

The right to conscientious objection was first mentioned by ORG as early as in DATE in its LAW ( DATE ) , in which it laid down the following basic principles :

“ CARDINAL . Persons liable to conscription for military service who , for reasons of conscience or profound conviction arising from religious , ethical , moral , humanitarian , philosophical or similar motives , refuse to perform armed service shall enjoy a personal right to be released from the obligation to perform such service .

NORP This right shall be regarded as deriving logically from the fundamental rights of the individual in democratic LAW which are guaranteed in LAW . ”

Based on this ORG , ORG adopted Recommendation CARDINAL ( DATE ) , calling upon ORG to invite member GPE to bring their national legislation as closely as possible into line with the basic principles . ORG further reiterated and developed the basic principles in its LAW ( DATE ) and Recommendation DATE ) . In the latter Recommendation , it stated that the right to conscientious objection was a “ fundamental aspect of the right to freedom of thought , conscience and religion ” enshrined in the Convention . It pointed out that CARDINAL member States had not yet recognised that right and recommended ORG to invite them to do so .

In DATE ORG adopted LAW ( DATE ) concerning the human rights of members of the armed forces , calling upon the member GPE , inter alia , to introduce into their legislation the right to be registered as a conscientious objector at any time and the right of career servicemen to be granted such status .

NORP In DATE ORG R ( CARDINAL ) CARDINAL , recommending the member GPE to recognise the right to conscientious objection and inviting the governments which had not yet done so to bring their national law and practice into line with the following basic principle :

“ Anyone liable to conscription for military service who , for compelling reasons of conscience , refuses to be involved in the use of arms , shall have the right to be released from the obligation to perform such service ... [ and ] may be liable to perform alternative service ; ... ”

In DATE ORG , recommending the member States to ensure that any limitations on the right to freedom of thought , conscience and religion of members of the armed forces comply with the requirements of LAW , that conscripts have the right to be granted conscientious objector status and that an alternative service of a civilian nature be proposed to them . The explanatory memorandum to this Recommendation noted , in particular :

“ The right to conscientious objection has not to date been recognised by the ORG as being covered by LAW . However , the current trend in international fora is to consider it part and parcel of the freedom of conscience and religion . ”

The principles developed by ORG bodies were echoed in ORG DATE , CARDINAL DATE , DATE and DATE . ORG similarly considered that the right to conscientious objection was inherent in the concept of freedom of thought , conscience and religion , as recognised in LAW , and called upon the member States of ORG to incorporate the right to conscientious objection as a fundamental right in their legal systems .

Article CARDINAL of LAW , which was proclaimed on DATE and which came into force on DATE , provides :

“ CARDINAL . Everyone has the right to freedom of thought , conscience and religion . This right includes freedom to change religion or belief and freedom , either alone or in community with others and in public or in private , to manifest religion or belief , in worship , teaching , practice and observance .

NORP The right to conscientious objection is recognised , in accordance with the national laws governing the exercise of this right . ”

In its ORG CARDINAL/CARDINAL , ORG on Human Rights appealed to the GPE to recognise the right to conscientious objection and to refrain from subjecting to imprisonment persons exercising that right . In its subsequent ORG , the ORG went CARDINAL step further and itself recognised the right to conscientious objection as a legitimate exercise of the right to freedom of thought , conscience and religion as laid down in DATE of LAW ( ORG ) . Further Resolutions on the subject – Resolutions CARDINAL/CARDINAL , PERSON and DATE confirmed and expanded the existing principles . Subsequently , the Commission repeatedly called on GPE to review their laws and practice in the light of its ORG . In ORG , it further encouraged ORG to consider granting amnesties and restitution of rights for those who had refused to undertake military service on grounds of conscientious objection .

The relevant provisions of the ORG , which was adopted by ORG of ORG in Resolution CARDINAL A ( XXI ) of DATE , came into force on DATE and was ratified by GPE on DATE , read as follows :

( a ) No one shall be required to perform forced or compulsory labour ;

( c ) For the purpose of this paragraph the term ‘ forced or compulsory labour’ shall not include :

( ii ) Any service of a military character and , in countries where conscientious objection is recognised , any national service required by law of conscientious objectors ; ... ”

“ CARDINAL . Everyone shall have the right to freedom of thought , conscience and religion . This right shall include freedom to have or to adopt a religion or belief of his choice , and freedom , either individually or in community with others and in public or private , to manifest his religion or belief in worship , observance , practice and teaching . ... ”

The ORG , the body that monitors implementation of the ORG , when examining individual complaints initially took a view that the ORG , and in particular its LAW , did not provide for the right to conscientious objection , especially taking into account LAW ( c ) ( ii ) . A complaint brought by a NORP conscientious objector was declared inadmissible on that ground as incompatible with the provisions of the ORG ( see L.T.K. v. GPE , Communication no . CARDINAL , ORG doc . ORG , CARDINAL DATE ) .

The first shift in the ORG ’s approach took place in its decision of CARDINAL DATE in GPE v. GPE ( Communication no . CARDINAL/CARDINAL , ORG doc . ORG C/CARDINAL/D/CARDINAL/CARDINAL ) , in which it accepted for the first time , albeit obiter , that “ LAW ORG ] certainly [ protected ] the right to hold , express and disseminate opinions and convictions , including conscientious objection to military activities and expenditures ” .

In DATE the ORG adopted its General Comment no . CARDINAL on Article CARDINAL of the ORG , providing , inter alia , the following interpretation of that provision :

“ CARDINAL . ... The LAW does not explicitly refer to a right to conscientious objection , but the ORG believes that such a right can be derived from DATE , inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one ’s religion or belief . ... ”

A further development in the ORG ’s position occurred in its views adopted on DATE in the cases of PERSON of GPE and PERSON of Korea ( Communications nos . DATE and CARDINAL , ORG doc . CCPR / C/CARDINAL/D/CARDINAL - CARDINAL/CARDINAL , DATE ) , in which the ORG for the first time had to deal with complaints of CARDINAL convicted GPE ’s Witnesses with respect to a country where the right to conscientious objection was not recognised . The ORG held as follows :

“ CARDINAL . The ORG ... notes that Article CARDINAL , paragraph CARDINAL , of the LAW excludes from the scope of ‘ forced or compulsory labour’ , which is proscribed , ‘ any service of a military character and , in countries where conscientious objection is recognised , any national service required by law of conscientious ORG . It follows that LAW itself neither recognises nor excludes a right of conscientious objection . Thus , the present claim is to be assessed solely in the light of LAW , the understanding of which evolves as that of any other guarantee of the LAW over time in view of its text and purpose .

... The ORG conviction and sentence , accordingly , amounts to a restriction on their ability to manifest their religion or belief . Such restriction must be justified by the permissible limits described in paragraph CARDINAL of Article CARDINAL , that is , that any restriction must be prescribed by law and be necessary to protect public safety , order , health or morals or the fundamental rights and freedoms of others . ... ”

The GPE went on to conclude that the interference with the applicants’ rights guaranteed by LAW ORG was not necessary and that there had been a violation of that provision .

The question of detention of conscientious objectors has also been addressed on several occasions under its individual petitions procedure by ORG which was established in DATE by ORG . Until recently , the main concern of ORG was the repeated punishment and incarceration of conscientious objectors , which it found arbitrary on the ground that it violated the principle of ne bis in idem ( see , for example , Opinion no . CARDINAL ( GPE ) and Opinion no . CARDINAL/CARDINAL ( GPE ) ) . In DATE ORG went CARDINAL step further and found a single instance in which a conscientious objector in GPE had been prosecuted , convicted and deprived of his liberty to have been arbitrary ( see Opinion no . CARDINAL/CARDINAL ( GPE ) ) .

Articles CARDINAL § CARDINAL ( b ) and CARDINAL of ORG are similar to ORG CARDINAL § CARDINAL ( b ) and CARDINAL of LAW .

In DATE and CARDINAL ORG issued recommendations inviting the member GPE whose legislation still did not exempt conscientious objectors from military or alternative service to review their legal regimes and make modifications consistent with the spirit of international human rights law through legislative amendments providing for exemptions from military service in cases of conscientious objection .

DATE . On DATE ORG decided on the first individual petition concerning the right to conscientious objection . The ORG found that LAW was to be read in conjunction with LAW ( b ) and concluded that conscientious objection was protected under LAW only in countries where it was recognised . In doing so , ORG relied heavily on the case - law of ORG and the ORG as it existed prior to DATE ( see ORG and Others v. GPE , Case no . CARDINAL , Report no . CARDINAL , DATE , § § CARDINAL - CARDINAL ) . This approach was later confirmed by ORG in another case ( see PERSON v. GPE , Case no . CARDINAL/CARDINAL , Report no . CARDINAL , DATE , § DATE ) .

On DATE the Ibero - American Convention on Young People ’s Rights , which sets out a number of specific rights for individuals aged DATE , was adopted in the framework of ORG . Its Article CARDINAL , entitled “ Right to conscientious objection ” , reads as follows :

“ CARDINAL . Youth have the right to make conscientious objection towards obligatory military service .

The GPE Parties undertake to promote the pertinent legal measures to guarantee the exercise of this right and advance in the progressive elimination of obligatory military service .

The LOC also took up the question of conscientious objection in DATE . The participating ORG noted at the Human Dimension Conference that ORG Human Rights had recognised the right to conscientious objection and agreed to consider introducing various forms of alternative service in their legal systems . In DATE the PERSON prepared the “ ORG or Belief ” in which it observed that , although there was no controlling international standard on this issue , the clear trend in most democratic GPE was to allow those with serious moral or religious objections to military service to perform alternative ( non - military ) service .


Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by the gendarmerie in the border city of GPE on her return from GPE . She was detained in a gendarmerie station . According to an arrest report prepared by the gendarmerie DATE , the applicant was informed of her right to be represented by a lawyer and to inform her family about her arrest . Nevertheless , it was also stated in the same document that , if the offence in respect of which she was arrested fell within the jurisdiction of ORG , she could consult a lawyer only if her detention period was extended by a judge or if a judge ordered her detention in a prison . The applicant signed the report and wrote on it that she had “ no requests ” .

The applicant was interrogated during her detention at the gendarmerie station , and an CARDINAL - page statement was taken from her between DATE . In her statement the applicant admitted to having engaged in activities on behalf of the ORG .

On DATE the applicant was examined by a doctor at the Edirne branch of ORG . According to the medical report drawn up DATE , there were “ no injuries or signs of ill - treatment on her body ” .

DATE she was brought before the prosecutor and then before ORG , which ordered her pre - trial detention in prison . In CARDINAL statements made during meetings with the prosecutor and the judge the applicant admitted to being a member of the ORG .

According to the CARDINAL statements referred to above , the applicant did not want to be represented by a lawyer during the questioning .

On DATE the prosecutor at ORG filed an indictment against the applicant with that court for the offence of membership of an illegal organisation , namely the ORG . The prosecutor , referring to the above - mentioned statements made by the applicant , alleged that the applicant had left GPE in DATE and had been taken to the ORG 's training camp in Lavrion , GPE , where she had received training . Following her training she had obtained a false NORP passport in order to enter the GPE . During her time in LOC she had engaged in activities on behalf of the ORG in GPE and the GPE .

Criminal proceedings against the applicant commenced before ORG ( hereafter “ the trial court ” ) . During the proceedings the applicant was represented by a lawyer .

During the first hearing , which was held on DATE , the applicant rejected the allegations against her and alleged that , before she was brought before the prosecutor and the judge on DATE , she had been told by the gendarmes that if she did not accept the accusations before the judge and the prosecutor she would be taken back to the gendarmerie station and tortured again . That had been the reason she had accepted the accusations before the prosecutor and the judge . When asked by the trial court what she had to say about the medical report of CARDINAL DATE in which it was stated that her body bore no signs of ill - treatment , the applicant replied that the medical report had been prepared before she was beaten up by gendarme officers and threatened with rape . She also alleged that she had been stripped naked by the gendarmes during her detention . The applicant further informed the trial court that the gendarmes had not asked her whether she wanted to be represented by a lawyer during the questioning .

During the second hearing , which was held on DATE , the applicant submitted a handwritten letter to the trial court . In the letter she alleged , in particular , that while she was being detained in the gendarmerie station she had been insulted by gendarme officers , blindfolded , beaten up and drenched with water . Before being questioned she had been undressed and “ they ” had touched various parts of her body . Threats of rape and death , directed at her and her mother , had also been made .

The lawyer representing the applicant told the trial court that his client 's questioning had been in breach of the applicable procedure and legislation and , as such , the statements taken from her constituted unlawfully obtained evidence which was not admissible in a court of law . Other than the statements taken from his client by the gendarmerie and then by the prosecutor and the judge on DATE , there was no evidence against her . The lawyer drew the trial court 's attention to a ORG decision according to which confessions not supported by further evidence were not admissible as evidence .

NORP The lawyer further asked the trial court to hear a “ cassette of the questioning ” of the applicant which had apparently been mentioned in a document drawn up by the gendarmerie . This request was rejected by the trial court which noted that the cassette was not in its possession .

The lawyer also pointed out that there was no mention of his client 's name in the statements taken from ORG who , according to the indictment , had helped his client to go to GPE .

On DATE the applicant was found guilty as charged and sentenced to DATE imprisonment . In convicting the applicant the trial court had regard to the statements taken from her at the gendarmerie station and then by the prosecutor and the judge on DATE , as well as to the statements made by ORG in the course of his trial in DATE .

The applicant appealed against her conviction and argued , in particular , that the decision of the trial court had not been adequately reasoned . In the grounds of appeal the applicant 's lawyer also repeated his earlier defence submissions concerning the allegedly unlawful nature of the evidence used in convicting his client , and referred to various Articles of the Convention .

On DATE ORG upheld the applicant 's conviction .

At the time notice of the application was given to the respondent Government , the Government were requested to submit to the ORG a copy of the “ cassette of questioning ” referred to above ( see paragraph CARDINAL above ) . It appears from the documents submitted to the ORG by the applicant that ORG requested ORG to obtain the cassette so that it could be submitted to ORG . The gendarmerie , who were requested by the domestic judicial authorities to produce the cassette , stated in their letter of CARDINAL DATE that they had “ no records of the cassette being handed over to the PERSON prosecutor ” .


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

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

Until DATE the applicants lived in GPE , a hamlet of LOC , in the district of PERSON , in GPE .

In DATE security forces destroyed the applicants’ properties and forcibly evicted the applicants from their hamlet .

On DATE PERSON lodged a petition with the Governor ’s office in GPE requesting redress for the damages they had suffered due to the destruction of his property and permission to return to their village . He further requested that an investigation be initiated into the destruction of their properties .

On DATE his petition was received by this office .

The applicant received no response to his petition .

Until DATE the applicants lived in GPE , a village of the PERSON district , in ORG . It is to be noted that the documents attesting ownership of property , which GPE , ORG , ORG , PERSON used in ORG , bear the name of their brother , PERSON .

In DATE security forces destroyed the applicants’ property and forcibly evicted the applicants from their village .

On DATE CARDINAL of the applicants , PERSON lodged a petition with the Governor ’s office in ORG requesting redress for the damages they had suffered due to the destruction of their properties and permission to return to their village . He further requested that an investigation be initiated into the destruction of their properties .

Until DATE the applicants lived in Dolapdere , a village of the PERSON district , in ORG . It is to be noted that the documents attesting ownership of property , which ORG , PERSON , PERSON , PERSON , PERSON and PERSON used in Dolapdere , bear their ORG and ORG names .

On DATE and DATE CARDINAL of the applicants , PERSON and PERSON lodged petitions with the Governor ’s office in ORG requesting redress for the damages they had suffered due to the destruction of their properties and permission to return to their village . They further requested that an investigation be initiated into the destruction of their properties .

On DATE their petitions were received by this office .

The applicants received no response to their petitions .

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

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

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

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

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

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