Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the Prosecutor of the Vatutinsky District of GPE ( “ the LOC Prosecutor ” ) instituted proceedings with regard to embezzlement of funds of the company NORP The applicant was originally a witness in the case .

On DATE the Vatutinsky District Prosecutor instituted criminal proceedings against the applicant on suspicion of his involvement in the embezzlement .

On DATE the Vatutinsky District Prosecutor decided that the applicant should be detained , as he was suspected of a crime punishable by imprisonment .

On DATE the investigator instituted another criminal case against the applicant on suspicion of his involvement in embezzlement and joined it to the first criminal case against the applicant .

On DATE the same prosecutor decided that the applicant 's detention should be extended to DATE .

DATE and DATE and on DATE the applicant and his lawyer studied the criminal case file .

On DATE the applicant was indicted for theft .

On DATE the indictment was approved by ORG . The case was transferred for examination on its merits to LOC ( “ the Vatutinsky Court ” ) .

On DATE the applicant 's advocate lodged a request with ORG seeking the applicant 's immediate release .

On DATE ORG received the case file and on DATE Judge PERSON of ORG held a preparatory hearing in the case .

On DATE Judge PERSON decided that the criminal case against the applicant should be remitted for additional investigation . He also rejected the applicant 's request for release of CARDINAL DATE , finding no grounds for changing the preventive measure applied by the prosecutor . In particular , the court stated that the applicant had been detained on the basis of the prosecutor 's decision since DATE in order to prevent him from avoiding investigation and appearance in court , obstructing the establishment of the truth in the criminal case and continuing with criminal activity , and in order to ensure compliance with procedural decisions in cases where the law provides for deprivation of liberty for DATE . No time - limit for detention was fixed .

On DATE ORG ( “ the Court of Appeal ” ) quashed the resolution of DATE and remitted the case for examination on the merits to GPE , GPE ( formerly LOC , but after changes to the judicial districts in GPE “ the ORG ” ) .

On DATE ORG held a preparatory hearing in the case . It examined the applicant 's request to be released on bail and found no reasons for allowing it . It also noted that the applicant had been detained lawfully , given that criminal proceedings against him were pending .

On DATE the applicant 's lawyer requested ORG to order the applicant 's release . This request was refused DATE . The court considered that the applicant might evade and obstruct justice and , given his age , state of health , family status and economic status there were no grounds for replacing the detention with another preventive measure . On DATE the court rejected a similar request by the applicant on the same grounds , adding that the seriousness of the charges had also been taken into account . CARDINAL more similar requests by the applicant were rejected by the court on CARDINAL and DATE on the same grounds .

On DATE ORG ordered that the case be again remitted for additional investigation . The court also upheld the applicant 's detention , noting without further elaboration that there were no grounds for changing the preventive measure . No time - limit for detention was fixed .

On DATE ORG quashed the resolution and remitted the case for re - examination on the merits . The court also noted that it had no legal basis for deciding on the applicant 's request for release and considered that the conclusions of the first - instance court on the matter were lawful , reasoned and corresponded to the case file materials . Therefore , it left the preventive measure unchanged .

NORP In DATE ORG ordered the transfer of the criminal case from ORG to ORG of Kyiv ( “ the ORG ” ) .

On DATE ORG ordered a hearing on the merits on DATE .

On DATE Judge PERSON resumed examination of the case on the merits and informed the applicant 's lawyer that she had decided not to remit the case for additional investigation . The court also rejected the applicant 's request for release , on the ground that he might avoid and obstruct justice .

On DATE the defence challenged Judge C.

On DATE Judge C. of ORG decided to remit the case for additional investigation . It also decided that there were no grounds for changing the preventive measure in respect of the applicant .

On DATE ORG quashed the decision of DATE and returned the case to ORG for examination on the merits . It also decided again that the applicant should remain in custody , as he had been charged with serious offences which would warrant deprivation of liberty after conviction .

On CARDINAL DATE ORG decided that the case should be remitted for additional investigation to LOC . It also ordered the applicant 's continued detention , without giving any particular reasons for it . The court also rejected the applicant 's request for termination of the proceedings in the case .

On DATE ORG rejected the applicant 's request for leave to appeal on points of law lodged against the decision not to terminate the proceedings , as the applicant had failed to comply with procedural formalities .

On DATE the Desnyansky ORG released the applicant from detention . The applicant signed an undertaking not to abscond .

On DATE the applicant 's advocate unsuccessfully requested the prosecution to amnesty the applicant , in view of the nature of the charges brought against him and his poor state of health .

On DATE the criminal investigation was adjourned because CARDINAL of the suspects was being searched for .

On DATE the investigator of ORG terminated the criminal proceedings against the applicant on all but CARDINAL of the charges , for lack of evidence of his involvement in the crime . The criminal case concerning the remaining charges was transferred to ORG .

On DATE the investigator of ORG terminated the criminal proceedings against the applicant concerning the remaining charges for lack of evidence of crime and initiated criminal proceedings in respect of crimes committed by an unknown person . This decision appears to have been mistakenly dated DATE instead of DATE . DATE the criminal proceedings were suspended for failure to establish the identity of the suspected offender .

DATE and DATE the applicant was held in the GPE no . CARDINAL , a detention facility with , according to the applicant , poor prison conditions and insufficient medical treatment .

According to the Government , in that facility the applicant was held in the following cells :

- cell No . CARDINAL , measuring QUANTITY and designed for CARDINAL inmates ;

- cell No . DATE , measuring QUANTITY . m and designed for CARDINAL inmates ;

- cell No . CARDINAL , measuring QUANTITY . m and designed for CARDINAL inmates ;

- cell No . DATE , measuring CARDINAL sq . m and designed for CARDINAL inmates ;

- cell No . DATE , measuring QUANTITY m and designed for CARDINAL inmates ;

- cell No . CARDINAL , measuring CARDINAL sq . m and designed for CARDINAL inmates ;

- cell No . CARDINAL , measuring QUANTITY . m and designed for CARDINAL inmates .

All the cells had a constant supply of cold water , natural and artificial light , a separated toilet and ventilation . The number of detainees did not exceed the number of places in each cell .

According to the applicant , he was not held in cells CARDINAL and CARDINAL . Cells CARDINAL , CARDINAL and DATE had CARDINAL bunks each . Cell CARDINAL , measuring QUANTITY m , was damp and very cold in DATE . In this latter cell he spent in total DATE . In cell no . CARDINAL , which had very poor ventilation , he spent DATE in total .

According to the ORG , the applicant had a full medical examination on arrival at the GPE on DATE . He did not make any complaints about his health and was registered for follow - up ( диспансерний облік ) in respect of his chronic illnesses .

On DATE , DATE and DATE the applicant had regular medical check - ups and was X - rayed . The examination revealed no lung problems .

According to a medical certificate issued on DATE , the applicant had a mild form of diabetes and required a special diet but not medical treatment .

According to a medical certificate issued on DATE the applicant had been diagnosed with ischaemic heart disease , stenocardia and diabetes .

On DATE the applicant was examined by a cardiologist , who found him to be suffering from ischaemic heart disease and stenocardia .

On DATE the applicant asked for medical assistance , complaining of chest pain and dizziness . Following a medical examination it was decided to place the applicant in the medical wing of the GPE . From DATE the applicant was treated in the medical wing of the GPE , with a diagnosis of neurocirculatory dystonia and cervical osteochondrosis . The applicant was prescribed several different types of medication . Every third day he was examined by a general doctor . On DATE he was examined by the cardiologist who found that the applicant had no heart problems . On DATE the applicant was examined by a neuropathologist . On DATE the applicant left the medical wing of the ORG in a satisfactory state of health . Following this treatment , and until his release from detention , the applicant did not consult doctors with any health - related complaints .

Following his release , the applicant underwent medical treatment in ORG no . CARDINAL for arrhythmogenic cardiomyopathy and ciliary arrhythmia from DATE .

Article CARDINAL of LAW provides that having decided to commit an accused for trial , the judge should resolve , among other things the issue concerning the change , discontinuation or application of a preventive measure . Other relevant domestic law is summarised in the judgments of GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ORG CARDINALII ( extracts ) ) , and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant ’s DATE son took part in a schoolchildren ’s outdoor camp near the PERSON lake in the GPE region , uniting over CARDINAL pupils and their supervisors . The applicant ’s son came with a group of CARDINAL pupils , supervised by CARDINAL teachers .

On DATE the police were alerted that the boy had gone missing .

On DATE the corpse of the applicant ’s son was found in the lake .

On the same date the police carried out an examination of the place of the incident and questioned several witnesses . An autopsy of the body began DATE and was completed on DATE . PERCENT of alcohol was found in his blood , but the body carried no signs of violence . The experts referred to the likelihood that the boy had drowned while swimming in the lake .

The applicant applied to the prosecutors , claiming that her son may have been murdered , and that the schoolteachers had not performed their duty of supervision .

On DATE a GPE area district prosecutor refused to institute criminal proceedings in respect of the death of the applicant ’s son .

On DATE a higher prosecutor quashed this decision , ordering further investigation in order to confirm or rule out the hypothesis of a violent death . He instructed the prosecution to question all the schoolchildren who had gone to the camp with the applicant ’s son and to examine the scene of the incident , the pictures of the deceased taken by the applicant just before the funeral , as well as , her son ’s belongings in order to establish the origin of the blood stains noticeable on some of them .

From DATE to CARDINAL DATE , the prosecution questioned CARDINAL witnesses , including the applicant , accepted the opinion of a medical expert , repeatedly examined the place of the incident and conducted an inquiry into a possible fight among the campmates . Furthermore , from DATE , a biological DNA examination of the belongings of the applicant ’s son was performed . The expert found some blood stains on the T - shirt of the victim but , because of the small amount of blood involved , it was not possible to establish its origin .

On DATE a GPE area district prosecutor again took a decision to refuse to institute criminal proceedings in view of the absence of any indication of a violent death . The prosecutor referred to the results of the autopsy and the DNA examination , as well as the submissions of various witnesses .

The applicant complained , requesting further details to be assessed .

On DATE a higher district prosecutor quashed the decision , ordering , inter alia , the questioning of all the participants of the camp , the divers who had found the corpse , and certain other people .

In accordance with that order , the prosecution carried out additional investigative measures ; in particular , the submissions of CARDINAL witnesses were recorded , experts were questioned , the police and other relevant officials were called upon to conduct an inquiry into certain details of the incident , and further inspections of the scene of the incident was carried out .

On DATE a GPE area district prosecutor refused to institute criminal proceedings in relation to the death of the applicant ’s son ( Article ORG of LAW as then in force ) . Nor did the prosecutor consider that there were any grounds for the criminal prosecution of the schoolteachers or organisers of the camp for the allegedly improper execution of their official duties ( LAW ) . The applicant was advised that she could claim damages by way of civil proceedings .

The applicant and her husband addressed ORG , submitting further details and requesting an additional inquiry .

On DATE a prosecutor in ORG quashed the decision , ordering additional investigative measures , including the questioning of new witnesses , the examination of the towel of the deceased , an inquiry into the hypothesis that there may have been a fight at the camp , and a request for information about the meteorological conditions on DATE of the incident .

On DATE the applicant reported that she had received an anonymous letter referring to the alleged “ murderers ” of her son .

An inquiry into these newly discovered details was carried out , including the questioning of CARDINAL witnesses .

On DATE a GPE area district prosecutor again refused to institute criminal proceedings on the same grounds as before . The applicant appealed , alleging that the prosecution had not made an adequate investigation into the anonymous letter .

On DATE a ORG regional prosecutor quashed the decision , instituting criminal proceedings into the death of the applicant ’s son . Thereafter , the investigation was prolonged a number of times . During a further examination , CARDINAL witnesses were questioned , some of them repeatedly , several confrontations of the witnesses were undertaken , additional information about the camp participants was gathered , the version of a possible fight in the camp was again assessed , writing samples were taken and an expert examination of the anonymous letter carried out , and several experts were heard .

On DATE the district prosecutor decided to discontinue the criminal proceedings . It was noted , inter alia , that no evidence of a violent crime could be found , despite the questioning of numerous witnesses and experts .

The applicant filed a hierarchical complaint , requesting the quashing of the decision of CARDINAL DATE .

On DATE ORG refused her request , stating that the decision to discontinue the investigation was lawful and substantiated . The applicant was advised that she could request judicial review of the decision of CARDINAL DATE .

On DATE the applicant applied to ORG , asking it to reinstate the time - limit to complain about the decision of CARDINAL DATE .

On DATE a judge the ORG granted her request , quashed the decision of CARDINAL DATE and ordered the GPE area district prosecutors to carry out further investigative measures , including the questioning of the applicant and her husband , as well as establishing the identity of certain persons with whom the applicant ’s son could have had contact in the camp . The judge also referred to the pictures of the corpse that the applicant had made after the autopsy which allegedly showed signs of violence on the boy ’s face , and ordered them to be submitted to an expert . The judge noted that it was not clear from the case file whether these particular pictures had been the subject of an expert examination before .

The criminal investigation was renewed . DATE a repeat medical expert examination of the pictures was carried out , in order to establish the credibility of the version of a violent death . The experts confirmed that no signs of violence could be identified from the pictures taken before the funeral . It was noted that the pictures taken by the applicant just before the burial exhibited MONEY on the face of the boy . Whereas the applicant considered them to be signs of violence , the experts explained that the marks were the result of the fact that the body had stayed in the water .

On DATE the prosecutor discontinued the investigation because of the lack of evidence of a crime .

On DATE a ORG regional prosecutor quashed the decision , referring , inter alia , to the need to question witnesses and obtain supplementary data about the participants at the camp . The case was sent to the GPE city district prosecutors , who again reinstated the investigation on CARDINAL DATE . The further questioning of witnesses and experts as well as a confrontation were held .

On DATE the GPE city district prosecutor discontinued the investigation in view of the absence of evidence of the crime of murder or the improper execution of official duties .

On DATE the ORG regional prosecutor quashed the decision , ordering , inter alia , the questioning of further witnesses and the characterisation of certain participants at the camp .

On DATE the investigation was again renewed by the GPE city district prosecutors and further investigative actions were carried out , including the questioning of CARDINAL witnesses .

On DATE a GPE city district prosecutor adopted a CARDINAL-page long decision , discontinuing the criminal investigation in view of the absence of evidence of a crime under the then ORG and FAC of LAW . It was concluded that the applicant ’s son had drowned in the lake from swimming whilst under the influence of alcohol , and that he had been responsible for his own death . The decision was based on the submissions of CARDINAL witnesses , some of whom had been confronted , in order to eliminate contradictions in the evidence , the results of CARDINAL expert examinations , the expert submissions , as well as other evidence .

On DATE the ORG rejected the applicant ’s hierarchical appeal . It was noted that the investigation had been thorough : CARDINAL witnesses had been questioned , some of them many times ; the examination of the place of the incident had been carried out CARDINAL times ; CARDINAL medical examinations and a DNA examination of the blood sample had been completed , but with no result because of the small amount of blood involved ; experts were questioned and a handwriting analysis of the anonymous letter had been performed . There was no evidence to indicate that the boy had been the victim of violence , despite the attempts to examine the numerous versions put forward by his parents . All hypotheses had been dutifully verified , inter alia , by questioning the relevant experts and the witnesses , some of whom had been heard several times but had not been able to provide any new information .

The applicant applied to a court .

On DATE the FAC examined the applicant ’s appeal in a written procedure and rejected it . It noted that the main source of objective evidence – the expert examination of the corpse and the pictures . This hypothesis was corroborated by the submissions of various witnesses and other evidence . The court opined that all possible means to obtain evidence had been exhausted . That decision was final .

On DATE the CARDINAL schoolteachers who had accompanied the applicant ’s son to the camp received a disciplinary reprimand for their failure to ensure the safety of the camp participants .

On an unspecified date the applicant brought civil proceedings for damages against the employer of those teachers DATE a ORG - run school . She claimed MONEY ( “ LTL ” ; MONEY ) to cover the funeral expenses . Whereas the applicant ’s claims were rejected at first and second instance by , respectively , ORG on DATE and ORG on DATE , ORG reversed those decisions on DATE , holding that the school was liable to cover the expenses of the funeral of the applicant ’s son . ORG reduced the amount claimed to LTL CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) , referring to the fact that the applicant ’s son had been largerly responsible for his own death . The applicant did not claim non - pecuniary damages .

LAW applicable at the material time punished murder ( Article CARDINAL ) and the improper execution of official duties ( Article FAC ) .

The Code of Criminal Procedure ( in force from DATE to DATE ) provided :

Article CARDINAL

“ Criminal proceedings shall not be instituted or ... shall be discontinued in the following cases :

CARDINAL ) where no crime has occurred ... ”

Article CARDINAL

“ The prosecutor ... shall receive the applications and reports of a crime ... and shall take a relevant decision within CARDINAL or , in exceptional circumstances , DATE from the receipt of the application or report .

The necessary material shall be obtained and submissions taken , but no investigative actions foreseen in this Code shall be carried out .

CARDINAL of the following decisions shall be taken regarding the application or report :

- to institute criminal proceedings ;

- to refuse to institute criminal proceedings ... .

The applicant shall be informed about the decision taken . ”

Article CARDINAL

“ Where no grounds for the institution of criminal proceedings are established ... the prosecutor ... or the court shall refuse to open criminal proceedings . ... The person concerned who submitted an application [ about the alleged criminal acts ] , shall be informed about that decision as well as about his / her right to appeal against it .

The decision of the prosecutor ... to refuse to institute criminal proceedings can be challenged before the higher prosecutor or a court ... . ”

Article CARDINAL of the Code stipulated that the actions and decisions of the prosecutor could be challenged before a higher prosecutor or , since DATE , before a court .

Article CARDINAL - CARDINAL provided for the judicial review of the actions and decisions of the prosecutor , stipulating as follows :

“ The prosecutor and the complainant may attend the hearing ... . The complainant shall be informed about the court ’s decision ... . That decision shall be final . ”


Remainder inadmissible;Violation of Art. 14+8

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE of GPE ) . By his own account , he is a lorry driver .

On DATE a military doctor declared him unfit for military service as he was suffering from type CARDINAL diabetes ( diabetes mellitus ) .

NORP On DATE the applicant was also exempted from the civil protection service .

On DATE that exemption was lifted and in DATE the applicant was assigned to ORG in the GPE of GPE . According to the Government , it is unclear from the file whether the applicant was given any tasks to carry out in a civil protection capacity . The applicant alleges that he volunteered on several occasions , but because of staff cutbacks in the GPE of GPE he was never called to do any civil protection duty .

On DATE the GPE cantonal authorities responsible for the military - service exemption tax sent him an order to pay the tax for DATE , in the amount of MONEY ( CHF ) ( MONEY ( ORG ) ) , based on his taxable income DATE ( CHF CARDINAL,CARDINAL – approximately ORG CARDINAL ) .

In a letter of DATE , the applicant challenged the tax demand , considering that he was being discriminated against . He pointed out that he had always stated his readiness to do military service .

On DATE the federal tax authorities informed the applicant that all NORP men who did not suffer from a “ major ” disability were required to pay a tax in order to be exempted from military service . They explained that a disability was considered “ major ” if the degree of physical or mental disability was PERCENT . They considered that further examinations were needed in order to determine whether the applicant ’s disability met that requirement .

When he examined the applicant on DATE , a doctor from ORG found that in most cases the type of diabetes the applicant suffered from did not make people unfit for work .

In another expert medical examination on CARDINAL DATE , a military doctor found the applicant ’s physical disability to be PERCENT .

By a decision of DATE , the GPE cantonal authorities responsible for the military - service exemption tax decided , based on the findings of the medical examination and the expert examination of DATE , that the applicant did not qualify for exemption from the tax as his degree of invalidity was PERCENT . The applicant challenged that decision and the authorities confirmed it on DATE .

ORG for the GPE of GPE upheld that decision on DATE . It considered that in adopting the criteria set out in section CARDINAL(CARDINAL)(a ) of ORG of DATE ( see “ Relevant domestic law and practice ” , paragraph CARDINAL below ) ORG ’s intention had not been to generally exempt all people with disabilities from the obligation to pay the tax in question . In the applicant ’s case the medical examination of CARDINAL DATE had shown that his disability was not a major one and that his condition was highly unlikely to be an obstacle in his future career . Thanks to medical progress , patients with the applicant ’s type of diabetes could live quite normal lives DATE and practise almost any line of work . That being so , the people concerned were not considered to have disabilities for the purposes of section CARDINAL(CARDINAL)(a ) of ORG . ORG further found that the applicant had failed to demonstrate that his condition , and in particular the need to administer himself CARDINAL insulin injections DATE , prevented him from working . Lastly , ORG did not consider that the distinction between major disabilities and other types of disability amounted , as the applicant alleged , to discrimination .

On DATE the applicant filed an administrative complaint with ORG . He claimed , in particular , that he was a victim of discriminatory treatment in so far as , on the one hand , he had been required to pay the exemption tax and , on the other , he had not been allowed to do his military service even though he had always stated his readiness to do it .

On DATE , when invited by ORG to submit observations on the admissibility and merits of the complaint , the federal tax authorities recommended its rejection .

In a judgment of DATE , ORG rejected the complaint . Based on the findings of the expert examination of DATE , it held that the applicant did not have a major physical or mental disability within the meaning of section CARDINAL(CARDINAL)(a ) of ORG . Accordingly , he did not qualify for exemption from the tax . ORG also pointed out that although the medical examination showed that the type of diabetes the applicant had was unlikely to prevent him from holding a normal job , the particular constraints of military service nevertheless obliged the authorities to declare him unfit .

ORG explained that the aim of the law was to provide a system of compensation between those citizens who did their military service and those who were exempted from it for whatever reason . The tax in issue was meant to replace the effort and inconvenience of military service . As to the complaint of discrimination , the court explained that it was for reasons of equality that the law did not provide for a blanket exemption for all people with disabilities .

ORG considered that the cantonal authorities had merely correctly applied the law and that it was not the court ’s role to change the law .

It also held that the fact that the applicant had always declared his willingness to do military service and felt fit to do it as a professional driver did not make any difference , as the law provided for no alternative for someone in his situation but to pay the exemption tax .

Article CARDINAL § CARDINAL of LAW provides the foundation for compulsory military service in GPE . It reads as follows :

Article CARDINAL : Military service and substitute service

“ CARDINAL . All men of NORP nationality shall do military service . The law provides for substitute civilian service .

NORP women may serve in the army on a voluntary basis .

All men of NORP nationality who do not do military service or substitute civilian service shall pay a tax . The tax shall be paid to the ORG and fixed and levied by the cantons .

Conscripts go to a training school for DATE at DATE , followed by CARDINAL DATE refresher courses staggered over DATE . It is also possible to do the full CARDINAL days’ service in CARDINAL uninterrupted stretch . Under section CARDINAL of ORG of DATE , ordinary servicemen must do CARDINAL days’ training . For ordinary servicemen and non - commissioned officers , military - service obligations end at DATE birthday or , if they have not completed their full training time , at DATE during which they reach DATE ( section CARDINAL(CARDINAL)(a ) of the same LAW ) .

The Federal Military - Service LAW of DATE imposes a tax on those who do not do all or part of their military service . LAW identifies the persons subject to the tax :

Section CARDINAL : Persons subject to the tax

“ The persons subject to the tax are men , resident in GPE or abroad , who are eligible for service and who , in the course of DATE ( DATE in which the tax is applicable ) :

( a ) for DATE are not incorporated into an army corps or called upon to do civilian service ;

( c ) do not do the military or civilian service required of them as men eligible for service .

The tax shall not be levied on any man who , in the course of DATE in which the tax is applicable , effectively did military service , even though he was not conscripted for DATE ... ”

Section CARDINAL of the same LAW lists the categories of people who are exonerated from paying the tax :

Section CARDINAL : Exoneration from the tax

“ Shall be exonerated from the tax those persons who , in the course of DATE in which the tax is applicable :

( a ) because of a major physical or mental disability , have a taxable income which , after deduction of the insurance benefits mentioned in section CARDINAL(CARDINAL)(c ) , and of the cost of support made necessary by the disability , does not exceed by PERCENT the minimum subsistence income for the purposes of debt recovery law ;

( a ) bis are considered unfit for military service because of a major disability and receive a disability benefit or allowance from the federal disability insurance or accident insurance scheme ;

( a ) ter are considered unfit for military service because of a major disability and do not receive a disability benefit or allowance , but meet CARDINAL of the CARDINAL minimum requirements to qualify for such an allowance ;

( d ) have reached the age - limit at which ordinary servicemen and non - commissioned officers , except higher - ranking non - commissioned officers , are released from their military obligations ;

This last provision indicates that the obligation to pay the tax lasts until DATE in which the person concerned reaches the age - limit at which ordinary servicemen and certain non - commissioned officers are freed from military obligations , that is to say from DATE birthday ( according to the applicant , under LAW of ORG he would be subject to the tax until DATE ; see paragraph CARDINAL above ) .

Under the legislation governing direct federal taxes , the military - service exemption tax is levied on the person ’s total net income . As a result , for a bachelor the income on which the exemption tax is based is the taxable income under the law governing direct federal taxes . The exemption tax is PERCENT of that income ( but MONEY CARDINAL ) . According to the Government that method of calculating the tax has the advantage of sparing the person concerned the trouble of filling in an additional tax declaration for the exemption tax .

In its earlier wording the criterion adopted in section CARDINAL(CARDINAL ) of the order of CARDINAL DATE on the military - service exemption tax to determine whether a disability should be considered “ major ” for the purposes of ORG was the degree of disability used for disability insurance . However , in a judgment of CARDINAL DATE ( ORG CARDINAL II CARDINAL ) , ORG explained that the notion of “ major ” physical or mental of disability within the meaning of section CARDINAL(CARDINAL)(a ) of ORG should be understood in the medical sense , not the disability insurance sense . Ruling on the merits of the case , it held that the disability caused by amputation of the leg at the knee was a “ major ” disability , corresponding to PERCENT on the disability scale ( Appendix CARDINAL to the order of DATE on accident insurance ) .

In a judgment of DATE ( ORG für PERSON CARDINAL , p. CARDINAL ) , ORG decided that in order to determine whether a disability was “ major ” for the purposes of exemption from the tax , what should be taken into consideration were the tables used by ORG in the event of an accident to calculate compensation for bodily harm in accordance with the federal law on accident insurance . The court also considered that the authorities could base their decision on the federal tax authorities’ “ Instructions concerning exoneration from the tax because of a major physical , mental or psychological disability ” , which were based on those tables and could be considered to have the value of a presumption of law in so far as they were sufficiently relevant to the particular case .

According to the parties there is no “ alternative ” to military service under NORP law .

Civilian service is a substitute service for people eligible for military service who can not reconcile the obligation to do military service with their conscience . It is regulated by ORG of DATE . The formal condition for eligibility for civilian service is fitness for military service .

Article CARDINAL of LAW provides separate regulations governing civil protection . The obligation to do civil protection service is unrelated to the obligation to serve in the army , so military service can not be replaced by time spent in the civil protection service . Nor is there any possibility of choosing between military service and civil protection . On the other hand , all the training and work done in civil protection can be taken into account in the calculation of the exemption tax .

The Office of the United Nations High Commissioner for Human Rights presented a report to ORG on best practices in relation to conscientious objection to military service , which described the wide range of substitute services available ( ORG , Including the Question of Conscientious Objection to Military Service , Doc . E / CN.CARDINAL/CARDINAL/CARDINAL , DATE , available on the Internet ) . In this report ORG addressed the question of paying a tax instead of doing military service :

“ CARDINAL . An issue related to conscientious objector status , or more broadly exemption from or a reduction of compulsory military service for any reason , is the payment of a special tax . Although this is not widespread , it has been reported to occur in a number of countries . GPE , for example , levies a tax on earned income for all male citizens who can not perform their compulsory military service for whatever reason . Other types of taxes relating to exemption or reduction in the period of military service have been reported to occur or to have occurred in countries such as GPE , GPE , GPE , GPE and GPE . ”

The non - governmental organisation Conscience and ORG , which has special consultative status with ORG , submitted observations to the former ORG ( ECOSOC , ORG , Written Statement submitted by Conscience and ORG , Doc . E / CN.CARDINAL/CARDINAL/NGO/CARDINAL , DATE ) , in which it stated ( p. CARDINAL ) :

“ ... a surprising number of GPE continue to accept financial contributions in lieu of military service . In GPE , GPE , GPE and GPE all or most of those excused military service for whatever reason – including those who are willing but physically incapable – are required to pay a special military tax . In other countries there is legal provision that exemption ( GPE , GPE , GPE ) or ( GPE , GPE ) the commutation of military service to a brief period of training may be purchased for cash ... ”

ORG Staff reductions in the army , in particular on the occasion of the “ Army CARDINAL ” and “ ORG XXI ” reforms , went hand in hand with a decrease in the length of military service . When the “ ORG CARDINAL ” reform was introduced the age by which compulsory military service had to be completed was lowered from DATE for most people , and that age was further lowered by the “ ORG XXI ” reform to DATE .

For DATE and DATE PERCENT of the population eligible for conscription ( CARDINAL out of CARDINAL people ) were found fit for military service . During the subsequent training school PERCENT of those dropped out for medical reasons , so PERCENT of the eligible population completed the training .

In DATE there were CARDINAL conscripts , CARDINAL ( PERCENT ) of whom were found fit for service ; in DATE conscripts numbered CARDINAL , of whom CARDINAL ( PERCENT ) were found fit for service ; and in DATE CARDINAL out of CARDINAL conscripts ( PERCENT ) were found fit for service . In DATE , CARDINAL people ( that is to say PERCENT of the people actually conscripted DATE and PERCENT of those found fit for military service ) were released from the obligation to do military service while in training school for medical reasons ( the corresponding figures for DATE were CARDINAL people or PERCENT and PERCENT respectively ; and for DATE , CARDINAL people or PERCENT and PERCENT respectively ) . According to statements made to the press on DATE by Major General PERSON , Surgeon General of ORG , PERCENT of conscripts were declared unfit for military service during the DATE recruitment campaign and PERCENT would very probably be declared unfit for military service during or after training school ( figures taken from ORG of DATE , p. CARDINAL) .

According to the ORG , these figures show that in DATE PERCENT of conscripts completed training school .


The applicant , Mr PERSON , is a NORP national , born in DATE and living in GPE . He was represented before the ORG by PERSON , a lawyer practising in PERSON ( GPE ) .

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

On DATE in the course of a judicial investigation opened in respect of the applicant , who was suspected of having sexually abused his daughter PERSON , the investigating judge at ORG ( ORG ) took evidence from Miss PERSON in the presence of the applicant ’s lawyer for TIME . In the course of that interview , the applicant ’s lawyer asked PERSON numerous questions .

In an indictment ( PERSON ) of CARDINAL DATE the GPE public prosecutor ’s department committed the applicant for trial before ORG ( Landgericht ) for acts of sexual abuse committed from DATE on his daughter , who was born in DATE . The indictment mentioned CARDINAL witnesses including an expert .

On DATE ORG issued a warrant for the applicant ’s arrest ( PERSON ) on the same grounds and he was taken into custody in FAC that DATE .

In a judgment of CARDINAL DATE after a DATE trial ORG sentenced the applicant to eight years’ imprisonment for CARDINAL counts of indecently assaulting a child ( sexueller PERSON Kind ) , CARDINAL counts of indecent assault on a child by a person having authority over her ( sexueller PERSON ) , and CARDINAL counts of having sexual relations within the prohibited degrees of consanguinity ( ORG ) .

During the trial the ORG heard evidence from Miss PERSON , and the applicant ’s lawyer was allowed to cross - examine her .

On DATE , on an appeal by the applicant , ORG ( ORG ) set aside the above judgment on the ground that proceedings had been time - barred in respect of some of the offences , which could not be regarded as continuing ones . It remitted the case to another criminal division of ORG .

On DATE and CARDINAL DATE the GPE public prosecutor ’s office provided particulars and supporting evidence for each of the charges against the applicant . The indictments mentioned CARDINAL witnesses , CARDINAL of whom were psychologists and doctors cited as experts .

On DATE the prosecuting authorities withdrew their indictment of CARDINAL DATE .

In a decision of DATE ORG stated that the current proceedings related solely to the charges contained in the indictment of DATE .

In a judgment of DATE , after a DATE trial , the fifteenth grand criminal chamber of ORG sentenced the applicant to seven years’ imprisonment for CARDINAL counts of indecently assaulting a child combined with indecent assault on a child by a person having authority over her and having sexual relations within the prohibited degrees , CARDINAL counts of indecent assault on a child by a person having authority over her , CARDINAL of which involved sexual relations within the prohibited degrees , and CARDINAL counts of having sexual relations within the prohibited degrees , in accordance with Articles CARDINAL , CARDINAL and CARDINAL of LAW ) .

During the trial the ORG heard numerous witnesses and experts , including doctors and psychologists who had treated Miss PERSON , who had required constant psychotherapy , had had several spells in a private clinic and had twice attempted suicide .

The ORG also heard the applicant and Miss PERSON , taking evidence from the latter for DATE during which the applicant was not present but his lawyer was , although the lawyer was not able to question her . When the applicant ’s lawyer and the applicant himself announced that they intended to ask Miss PERSON numerous questions , she stated that she was no longer in a fit state to be questioned owing to her poor state of health , as confirmed by a medical certificate . She relied on her right to refuse to give evidence ( PERSON ) under LAW and CARDINAL of LAW ( Strafprozessordnung – see Relevant domestic law and practice below ) .

The applicant ’s lawyer then applied for ORG to order the discontinuance of the proceedings ( Einstellung des PERSON ) on the ground that his not being able to question Miss PERSON at the trial constituted a breach of LAW ( see Relevant domestic law and practice below ) and LAW and DATE ( d ) of the ORG . ORG rejected his application .

In its judgment ORG described in detail the sexual abuse to which Miss PERSON had been repeatedly subjected by the applicant since DATE .

The ORG then conducted a highly detailed analysis of the credibility of the evidence taken at the hearing , particularly the statements by the applicant and Miss PERSON Among other things , it thoroughly examined Miss PERSON ’s conduct and motives , noting the consistency of her statements , which were supported by a large body of evidence ; it also refuted the applicant ’s arguments that her therapists had had a harmful influence .

ORG pointed out ( on p. CARDINAL of the judgment ) that on DATE Miss PERSON had been interviewed for TIME by the investigating judge at ORG . In the course of that interview she had had to answer numerous questions from the judge and the applicant ’s lawyer . The ORG noted what an ordeal it had been for Miss PERSON to describe in detail the abuse to which she had been subjected and how that had revived strong feelings of inner turmoil because she had had to relive the abuse again and again as she described it ( “ wühlten PERSON innerlich PERSON , MONEY wieder während der Schilderungen ihren GPE durchleben musste ” ) .

The ORG emphasised once more how difficult it was for Miss PERSON to describe the traumatic events she had undergone and noted that “ every time , including the last occasion at the trial , it was only through a superhuman effort of will that she [ had been ] able to describe painful details and memories ” ( “ die für sie schmerzlichen Details and Erinnerungen vermochte sie stets , zuletzt in der GPE , PERSON grösster innerer PERSON mitzuteilen ” ) .

ORG added :

“ In the light of her psychosomatic illness , as described above , and the serious post - traumatic effects she has suffered , it is understandable that Miss PERSON was not in a state to relive the events of her abuse during the trial without being affected . During her evidence the court was able to observe just how very sensitive the witness still is DATE when she has to describe details of her sexual abuse , which she is still not in a position to do without suffering harm . This was particularly so when she had to give details about her own feelings during the sexual assaults by the defendant because at those points she was almost overwhelmed by the strength of the feelings of guilt and shame that she still experiences DATE . In that connection the ORG was not able to discern any of the artfulness or glibness attributed to her by the defence . ”

( “ LOC ihrer oben geschilderten psychosomatischen FAC gravierenden PERSON wird auch erklärlich , dass QUANTITY letzlich nicht in der Lage war , in der ORG erneut ihre PERSON folgenlos zu durchleben . Die ORG vermochte anlässlich ihrer Vernehmung einen Eindruck zu gewinnen , wie empfindsam die LOC reagiert , wenn sie PERSON über den sexuellen Missbrauch schildern soll , wozu sie immer noch nicht ohne GPE in der PERSON ist . Als besonders gravierend stellte sich der ORG in sie dar , wenn sie Angaben zu eigenen ORG während der sexuellen ORG tätigen sollte , da sie in diesen PERSON ihrer ORG , die sie wegen ihrer LOC , nahezu erdrückt wurde . PERSON attestierte PERSON , vermochet die Kammer insoweit nicht zu erkennen ” ) .

ORG held that the applicant had acted deliberately and that he was aware of his guilt because he had constantly attempted , by means of threats , to enjoin his daughter to say nothing .

By way of extenuating circumstances , the ORG took account of the fact that the applicant had had no previous convictions , that he had worked hard in his job to provide for his family and that the criminal proceedings and his pre - trial detention had lasted a long time .

As aggravating circumstances , on the other hand , the ORG had regard to the length and the nature of the abuse to which the applicant had subjected his daughter since DATE and the “ high intensity of each separate instance ” ( die hohe GPE der Einzelfälle ) which had steadily increased over DATE . The ORG emphasised that the applicant had shamelessly ( in schamloser Weise ) and brutally ( grob ) exploited his daughter ’s natural desire for paternal affection and transformed these abuses into a commonplace event . He had degraded his daughter to the level of a sex object constantly at his disposal , thus inhibiting her normal sexual development . As regards the various offences , the ORG noted that the applicant had abused his daughter pitilessly and selfishly , forcing her into particularly humiliating sexual practices to keep her submissive while she tried in vain to escape from his hold over her through bulimia and vomiting crises . Despite his daughter ’s subsequent attempts to distance herself from him and live an independent life , he had continued to pursue her relentlessly and had even involved her in relations that he and his wife had had with a couple who engaged in partner - swapping .

ORG decided on the length of the applicant ’s sentence in the light of all of the above circumstances and the serious traumas experienced by Miss PERSON for whom psychological assistance will remain essential for an indefinite period .

On DATE , on appeal by the applicant , ORG varied the verdict , finding the applicant guilty of CARDINAL counts of indecently assaulting a child , CARDINAL counts of indecent assault on a child by a person having authority over her , including sexual relations within the prohibited degrees , and CARDINAL counts of having sexual relations within the prohibited degrees , but did not alter the length of the sentence . ORG also rejected the applicant ’s application for the proceedings to be discontinued for a procedural defect resulting from a breach of LAW , on the ground that , in the indictment of CARDINAL DATE , containing the charges on which the applicant stood trial , the prosecution had sufficiently substantiated the facts referred to in its indictment of CARDINAL DATE , and that the applicant ’s consent would only have been required if the prosecution had brought additional charges at his trial .

On DATE ORG ( Bundesverfassungsgericht ) , sitting as a CARDINAL - member panel , decided to dismiss the applicant ’s appeal .

The first sentence of LAW states that the president of the court must authorise the prosecution , the defendant and the defendant ’s lawyer to examine respectively the defendant , the witnesses and the experts .

Under the second and third sentences of LAW , the court may hear witnesses in the absence of the defendant if there is a serious risk of grave detriment to the witness ’s health ( “ wenn die dringende Gefahr eines schwerwiegenden GPE für [ die ] Gesundheit [ des ORG ] besteht ” ) . As soon as the defendant is present at the hearing again , the president must inform the defendant of the main content of the evidence given in his absence ( “ von dem wesentlichen Inhalt dessen zu unterrichten , was während seiner GPE ausgesagt oder sonst verhandelt worden ist ” ) .

LAW authorises the defendant ’s relations in the direct line , inter alios , to refuse to give evidence .

The second sentence of LAW provides that persons who have waived their right to refuse to give evidence may change their mind while in the witness stand and exercise this right again .

According to the established case - law of ORG , this restriction of the rights of the defence must be taken into account by the relevant court when assessing the evidence . Thus it should be considered , in particular , to what extent the witness ’s statements are corroborated or called into question by the other evidence and how significant they are .


Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in Shoumen .

At TIME on DATE the applicant allegedly took part in a violent incident in a bar in his home town of Shoumen . It seems that the police were alerted about the incident , intervened and questioned some of the participants and the other persons present on the spot , without making arrests .

At TIME on DATE the applicant allegedly took part in another violent incident in a restaurant in Shoumen . Apparently during this second incident a PERSON was beaten , robbed , abducted and threatened with violence . TIME Mr P.P. complained to the police .

NORP In TIME of CARDINAL DATE the applicant went to ORG in Shoumen for questioning in connection with the incidents . At TIME he was questioned as a witness . He submits that during DATE he was kept under arrest in the police department . According to the Government , the applicant was not deprived of his liberty at that time .

On DATE criminal proceedings were opened against the applicant and CARDINAL other persons on suspicion that they had robbed Mr P.P. , had deprived him of his liberty and had coerced him to pay them money .

On DATE an investigator ordered the applicant 's preliminary detention for a period of twentyfour TIME , starting to run at TIME on DATE , on suspicion that on DATE he had committed abduction and unlawful deprivation of liberty , contrary to LAW ( “ the ORG ” ) . The order stated that the applicant had been arrested immediately after having committed the alleged offence , in accordance with LAW ( CARDINAL ) of LAW ( “ the ORG ” ) . Despite the applicant 's insistence to meet the investigator , he was not brought before him at that time .

On DATE a prosecutor extended the applicant 's preliminary detention for DATE , starting to run from DATE of the extension . The same day the applicant was allowed to meet a lawyer .

At TIME on DATE the applicant was brought before an investigator and charged with having instigated others to commit unlawful deprivation of liberty in a manner endangering the health of the victim and also to commit extortion through threats of murder accompanied by light bodily injury . The investigator ordered his pretrial detention . The same day a prosecutor from ORG confirmed the investigator 's decision to detain the applicant .

NORP Immediately after the charging the applicant was questioned in the presence of his counsel . The applicant stated that he understood the charges against him . His counsel asked to be allowed access to the casefile . The investigator allegedly refused .

On DATE the applicant submitted an appeal against his pretrial detention . He claimed that he had not committed the alleged offences and that the accusation against him was not supported by the available evidence .

ORG sent the applicant 's appeal to ORG on DATE together with the casefile . It arrived in the court on DATE .

The appeal was examined by ORG on DATE in an open hearing in the presence of the applicant and his counsel . Counsel referred to the alleged lack of evidence against the applicant and , in addition , noted that the applicant had a permanent address , a job , and CARDINAL children . Counsel also presented a medical certificate issued by ORG which indicated that the applicant was suffering from myasthenia and post - traumatic encephalopathy , for which he had been hospitalised in DATE , and also from psoriasis . Counsel argued that the latter required better sanitary conditions than those in the cell of ORG where the applicant was being held .

NORP The court rejected the appeal . It held that in proceedings against the imposition of detention it could not go into issues relating to the accusation and the evidence against the applicant , as that had to do with the merits of the criminal case against him . The only relevant arguments of the applicant were those pertaining to his health . The court further held that the applicant had failed to prove that he was suffering from psoriasis and that the other diseases indicated by him were neurological and required no particular conditions of treatment . It also briefly noted that the applicant had been detained under LAW CARDINAL ( CARDINAL ) of the ORG and that there were no grounds for releasing him , in view of the impending investigative actions and the ascertaining of the truth .

On DATE ORG decided to release the applicant on bail , reasoning that the applicant 's health had worsened during his stay in custody . In particular , his psoriasis had intensified due to the poor sanitary conditions and the lack of sunlight in his cell . Moreover , the investigation had almost been completed and the applicant had a permanent address and a job , which reduced the chances of him absconding or impeding the investigation .

The applicant posted bail DATE and was released .

On DATE ORG decided to discontinue the criminal proceedings against the applicant and to drop the charges against him . It reasoned that the accusation against the applicant had not been proven .

After he appeared for questioning in TIME of CARDINAL DATE the applicant remained on the LOC of ORG . The following day or DATE after that he was transferred to the detention facility of ORG . He remained there until DATE , when he was released .

There the applicant was held in an underground cell with no windows . Its door was made of solid metal , with a small aperture allowing the guards to inspect the cell . There was an opening above the door which was closed with a wirenet ; that was the only conduit for fresh air to the cell . The floor of the cell was QUANTITY below the floor of the hallway .

According to the applicant , the size of the cell was QUANTITY . During the time which the applicant spent in the cell it was occupied by CARDINAL detainees .

One of the walls of the cell was oozy and covered with mould .

The cell was lighted by a single electric bulb situated above the door . Its switch was in the hallway and it allegedly remained on twentyfour TIME a day . According to the applicant , the light coming from the bulb was not sufficient to allow him to read .

The detainees were sleeping on a concrete platform which was QUANTITY above the floor level and was covered with wooden planks . The planks were covered only with blankets . There was no bed linen . It seems that the cell contained no other pieces of furniture .

The applicant , as well as the other detainees , was allowed to go out of the cell for TIME CARDINAL or CARDINAL times a day – in the morning and in TIME to wash themselves and to use the toilet . It seems that the detainees could also leave the cell when they wished to write a request to the investigator , the prosecutor or the court . In that case they were allowed to stay in the hallway to write .

The size of the toilet room , which was at the other end of the hallway , was QUANTITY and there were CARDINAL ORG toilets in it , with no screens between them and between them and the CARDINAL sinks , with the result that all inmates had to relieve themselves in each other 's presence .

The detainees had to use a bucket in the cell to relieve themselves outside the toilet visits . They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities .

The toilet was also used as a bathroom . The detainees were allowed to bathe once DATE , for TIME . There was no shower and they had to take hot water from a pail containing QUANTITY , which they mixed with cold water from the tap . The detainees had to pour water over their bodies with the mugs they were using for eating .

According to the applicant , the food , which was served in the cell twice a day , was of poor quality .

On DATE after his arrest the applicant 's psoriasis aggravated . His skin got covered with massive eczema . He informed the facility 's paramedic about this and asked to have medicines brought from his home . It seems that he had to apply his medication CARDINAL or CARDINAL times a day , but was not allowed to keep it in the cell and could only apply it twice a day , during the toilet visits . The applicant alleges that , as a result , he started to develop psoriatic arthritis : his joints swelled , he started feeling pain in his ankles , and could not move the fingers of his right hand .

On DATE the applicant requested to be examined by a dermatologist . His request was granted . During the examination the doctor found that as a result of the bad sanitary conditions in which the applicant was being kept the rashes on his skin had aggravated . The applicant was prescribed injections , which apparently were regularly administered by the detention facility 's paramedic at the door of the applicant 's cell .

The ORG visited GPE in DATE and again in DATE and DATE . Although ORG detention facility was not visited on any of these occasions , all reports included general observations about problems in all ORG facilities .

In this report ( ORG ( CARDINAL ) CARDINAL ) the ORG found that most , albeit not all , of the ORG detention facilities were overcrowded . With the exception of CARDINAL detention facility where conditions were better , the conditions were as follows : detainees slept on mattresses on sleeping platforms on the floor ; hygiene was poor and blankets and pillows were dirty ; cells did not have access to natural light , the artificial lighting was too weak to read by and was left on permanently ; ventilation systems were in poor condition ; detainees could use a toilet and washbasin twice a day ( morning and evening ) for TIME and could take a DATE shower ; outside of the CARDINAL daily visits to the toilets , detainees had to satisfy the needs of nature in the cell bucket ; although according to the establishments ' internal regulations detainees were entitled to a “ DATE walk ” of TIME , it was often reduced to TIME or not allowed at all ; no other form of outofcell activity was provided to persons detained .

The ORG further noted that food was of poor quality and in insufficient quantity . In particular , the DATE 's “ hot meal ” generally consisted of a watery soup ( often lukewarm ) and inadequate quantities of bread . At the other meals , detainees only received bread and a little cheese or khalva . Meat and fruit were rarely included on the menu . Detainees had to eat from bowls without cutlery – not even a spoon was provided .

NORP The ORG also noted that family visits were only possible with permission and that as a result detainees ' contact with the outside world was very limited . There was no radio or television .

The ORG concluded that the NORP authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “ almost without exception , the conditions in the ORG detention facilities visited could fairly be described as inhuman and degrading . ” In reaction , the NORP authorities had agreed that the [ ORG ] delegation 's assessment had been “ objective and correctly presented ” but had indicated that the options for improvement were limited by the country 's difficult financial circumstances .

NORP In DATE the ORG recommended to the NORP authorities , inter alia , that sufficient food and drink and safe eating utensils be provided , that mattresses and blankets be cleaned regularly , that detainees be provided with personal hygiene products ( soap , toothpaste , etc ) , that custodial staff be instructed that detainees should be allowed to leave their cells during DATE for the purpose of using a toilet facility unless overriding security considerations required otherwise , that the regulation providing for TIME exercise per day be fully respected in practice , that cell lighting and ventilation be improved , that the regime of family visits be revised and that pretrial detainees should be more often transferred to prison even before the preliminary investigation was completed . The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency .

In this report ( ORG ( DATE ) CARDINAL ) the ORG noted that new rules , providing for better conditions , had been enacted but had not yet resulted in significant improvements .

In most places visited in DATE ( with the exception of a newly opened detention facility in GPE ) , the conditions of detention in ORG premises had remained generally the same as those observed during the ORG 's DATE visit , including as regards hygiene , overcrowding and outofcell activities . In some places the situation had even deteriorated .

In this report ( ORG ( DATE ) CARDINAL ) the ORG noted that most ORG detention facilities were undergoing renovation but that a lot remained to be done . The cells remained generally overcrowded .

Despite the ORG 's recommendations in the report on their DATE visit , no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities . Those facilities did not have areas for outdoor exercise . At some of the establishments ( e.g. Botevgrad ) , attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day . The ORG stated that “ in this respect , the situation remain[ed ] of serious concern ” .

Article CARDINAL § CARDINAL of the ORG provides that the offences of abduction and false imprisonment carry a penalty of DATE ten years ' imprisonment .

By LAW § CARDINAL of the ORG , the offence of false imprisonment in a manner endangering the health of the victim is punishable by DATE imprisonment .

By Article CARDINALa § CARDINAL ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of the ORG , extortion through threats of murder or severe bodily injury , when it is accompanied with light bodily injury and is committed by CARDINAL or more persons , is an offence punishable by to DATE imprisonment and a by a fine of MONEY .

Article CARDINAL § CARDINAL , read in conjunction with LAW of the ORG , provides , as relevant , that a person who instigates another to commit an offence is subject to the same punishment as the principal , account being taken of the nature and the degree of his participation .

The general rule of NORP criminal procedure is that a person may be deprived of liberty within the context of pending criminal proceedings if he or she has been charged with an offence . By LAW ORG , a measure to secure appearance before the competent authority has to be imposed in respect of every person charged with having committed a publicly prosecutable offence . Pretrial detention ( see paragraphs DATE below ) and house arrest are those measures which involve deprivation of liberty .

However , a person may also be taken into custody if he or she is suspected of having committed a publicly prosecutable offence punishable with imprisonment ( at the relevant time ) , but there is not enough evidence to bring charges . The circumstances in which this may occur are limited and , as relevant here , include the case where a person “ has been caught during or immediately after the commission of the [ alleged ] offence ... ” ( LAW ( CARDINAL ) of the ORG ) .

The arrestee has to be brought immediately before an investigator who has to inquire into the circumstances surrounding the arrest , to institute or refuse to institute criminal proceedings , and to make an order for the “ preliminary detention ” or for the release of the arrested person ( PERSON , GPE процес , PERSON част , PERSON , DATE , стр. DATE ) . By Article CARDINAL § § CARDINAL and CARDINAL of the ORG , the investigator may impose “ preliminary detention ” for a maximum of twentyfour TIME , which could , in certain circumstances , be extended by a prosecutor to DATE . If no charges are brought against the detainee within this timelimit , he has to be released immediately upon its expiry ( Article CARDINAL § CARDINAL ) .

Section CARDINAL(CARDINAL)(CARDINAL ) of ORG allows the detention of a person who is suspected of having committed a criminal offence . The detention may not last longer than twentyfour TIME ( section QUANTITY ) and must be based on a written order ( section CARDINAL(CARDINAL ) of the Act ) .

At the relevant time and until the reform of the ORG of DATE an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody . The investigator 's decision was subject to approval by a prosecutor . The role of investigators and prosecutors under NORP law has been summarised in paragraphs CARDINAL of the ORG 's judgment in the case of ORG v. GPE ( [ ORG ] , no . ORG , ECHR MONEY ) .

Article CARDINAL of the ORG , as in force at the relevant time , provided as follows :

“ CARDINAL . Pretrial detention shall be imposed [ in cases where the charges concern ] a serious intentional crime .

NORP In the cases falling under paragraph CARDINAL [ detention ] may be dispensed with if there is no risk of the accused evading justice , obstructing the investigation , or committing further crimes .

NORP ...

NORP In cases [ where the charges do not concern a serious intentional crime ] pretrial detention shall be imposed if the charges concern a crime punishable with imprisonment , if :

( CARDINAL ) there is a danger of the accused 's absconding , obstructing the course of justice , or committing further crimes . ... ”

According to ORG practice , LAW required that a person charged with a “ serious intentional crime ” be detained pending trial . The only exception was provided for by LAW , under which an accused could be released if it was clear beyond doubt that there was no danger of his absconding or committing further crimes . By contrast , where detention was imposed LAW CARDINAL § CARDINAL ( CARDINAL ) , the danger of the accused 's absconding or committing an offence had to be “ real ” , as opposed to “ hypothetical ” ( опред. № CARDINAL от CARDINAL май DATE г. по ORG CARDINAL/CARDINAL г. QUANTITY ВС II н.о. ; опред. № CARDINAL от DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ) .

Article CARDINAL § CARDINAL of the ORG provides that a “ serious crime ” is one punishable by DATE imprisonment .

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

“ ( CARDINAL ) The detainee shall be immediately provided with a possibility of filing an appeal with the competent court against the [ imposition of detention ] . [ The appeal must be filed ] not DATE after the [ imposition of detention ] . The court shall consider the appeal in an open hearing to which the [ detainee ] shall be summoned . The hearing shall take place not DATE after the receipt of the appeal at the court .

( CARDINAL ) The appeal shall be filed though the organ which has ordered the detention ... .

( CARDINAL ) The court [ 's ruling shall not be ] subject to appeal ... ”

ORG has held that it was not open to the courts , when examining appeals against pretrial detention , to inquire whether there existed sufficient evidence to support the charges against the detainee . The courts had to examine only the formal validity of the detention order ( опред. № CARDINAL от DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ) .