Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Fair hearing;Public hearing);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The CARDINAL applications relate to the effects of long - term expropriation permits and prohibitions on construction on ORG late Mr. PERSON and on Mrs. PERSON , in their capacity as property owners .

ORG , which has legal personality , is composed of Mrs. PERSON , Mr. PERSON and Mrs. PERSON , the joint heirs of the late Mr. PERSON ; they reside in or near GPE . They own a property , situated in the LOC district in central GPE and known as " Riddaren No . CARDINAL " , on which stands a building dating from the DATE ’s . In the DATE the rateable value of the property was CARDINAL NORP crowns .

On DATE , acting pursuant to LAW byggnadslagen - " LAW " ) , the Government granted ORG a zonal expropriation permit ( expropriationstillstånd ) covering CARDINAL properties , including that owned by ORG . GPE intended to build , CARDINAL of the main shopping streets in the centre of the capital , a viaduct leading to a major relief road . CARDINAL of the viaduct ’s supports was to stand on the " Riddaren " site , the remainder of which was to be turned into a car park .

Under LAW DATE ( expropriationslagen - " the CARDINAL Act " ) , the Government set at DATE the time - limit within which the expropriation might be effected ; before the end of that period ORG had to summon the owners to appear before ORG ( fastighetdomstolen ) for the fixing of compensation , failing which the permit would lapse .

In DATE , at the request of the City , the Government extended this time - limit to DATE . Their decision affected CARDINAL properties , including " Riddaren No . CARDINAL " . At that time , the properties in question were not the subject of any city plan ( stadsplan ) .

On DATE , the Government granted ORG a further extension of the expropriation permit ; this extension was applicable to CARDINAL of the CARDINAL properties originally concerned , including " Riddaren No . CARDINAL " , and was valid until DATE . The City had prepared for PERSON a general development plan , known as " City CARDINAL " , which gave priority to street - widening for the benefit of private traffic and pedestrians .

Subsequently , " City CARDINAL " , a revised general development plan for PERSON and ORG ( another district in the city centre ) , stressed the need to improve public transport by means of a better network of roads . Some of the sites involved were to be used for street - widening , but any final decision had to await a decision as to the utilisation of the orders . It was estimated that the revised plan , which was of the same type as " City CARDINAL " , should be implemented before DATE .

In DATE , ORG requested CARDINAL extension of the expropriation permit as regards certain properties , including " Riddaren No . CARDINAL " , pointing out that the reasons for expropriation given in GPE CARDINAL " and " City CARDINAL " plans were still valid . On DATE , the ORG set DATE , that is to say DATE from the date of the request , as the time - limit for the institution of the judicial proceedings for the fixing of compensation .

In DATE , ORG put forward revised plans according to which the use of " Riddaren No . CARDINAL " was not to be modified and the existing building was not to be altered .

On DATE , the Government cancelled the expropriation permit at the ORG ’s request ( see paragraph CARDINAL below ) .

ORG has never attempted to sell its property .

On DATE , ORG ( länsstyrelsen ) had imposed a prohibition on construction ( byggnadsförbud ) on " Riddaren No . CARDINAL " , on the ground that the proposed viaduct and relief road would affect the use of the property . The prohibition was subsequently extended by ORG .

In DATE , ORG obtained an exemption from the prohibition in order to widen the front door of the building . It never applied for any other exemptions .

The expropriation permit and the prohibition on construction affecting ; " Riddaren No . CARDINAL " were in force for total periods of CARDINAL and DATE respectively .

Mrs. PERSON lives in GPE , where she owns DATE of a property situated at " ORG . CARDINAL " , in the LOC district ; it is occupied by the CARDINAL buildings erected in DATE , CARDINAL of which faces the street and the other the rear . In the DATE tax year the rateable value of the applicant ’s share of the property was CARDINAL NORP crowns .

On DATE , the Government authorised ORG to expropriate CARDINAL properties , including " ORG . CARDINAL " , and set DATE , that is to say DATE from the date of the ORG request , as the time - limit for the institution of the judicial proceedings for the fixing of compensation . They justified their decision by reference to LAW plan which envisaged that a multi - storey car park would be erected on the site of the applicant ’s property .

However , work in this district was postponed and new plans were prepared for consideration . Believing her property to be in urgent need of repair , Mrs. PERSON requested the Government to withdraw the expropriation permit . ORG replied that the existing plans did not allow any derogation to be made , and on DATE the ORG refused the request on the ground that the permit could not be revoked without the express consent of ORG .

On DATE , the Government cancelled the permit at the ORG ’s request ( see paragraph CARDINAL below ) .

Mrs. PERSON ’s financial situation obliged her to try to sell her property . She made CARDINAL attempts to do so DATE , but the prospective buyers withdrew after they had consulted the city authorities . In addition , she sometimes had difficulty in finding tenants .

On DATE , ORG decided to impose a prohibition on construction on " Barnhuset No . CARDINAL " , on the ground that the site was to be turned into a car park . The prohibition was subsequently extended by ORG .

In DATE , Mrs. PERSON was granted an exemption in order to make alterations to the third floor of her premises ; she never sought any other exemptions .

She failed to obtain a loan when , in DATE , CARDINAL of the property ’s major mortgagees demanded that the façade be renovated .

To sum up , Mrs. PERSON ’s property was subject to an expropriation permit and a prohibition on construction for DATE respectively .

For DATE , spectacular changes have been taking place in the centre of GPE , comparable to those which have occurred in many cities which were reconstructed after being destroyed or severely damaged during the second world war .

PERSON is a district where most of the capital ’s important administrative and commercial activities used to be concentrated . DATE , the view was taken that the district should be restructured so that those activities could be carried on satisfactorily . For instance , a proper network of roads was needed .

Furthermore , most of the buildings were decrepit and in a poor state of repair . A large - scale redevelopment scheme was necessary in order to provide suitable premises for offices and shops as well as to create a healthy and hygienic working environment . NORP expropriation , introduced by an Act of DATE which amended , inter alia , LAW , became the key instrument for implementing ORG plans . In DATE CARDINAL buildings were demolished . Some of the vacant sites thereby created were used to make new roads and others were integrated into larger and more functional complexes .

During the DATE ’s , town - planning policy in GPE evolved considerably . Far from being in favour of opening access roads to the centre , the city authorities were now trying to reduce the number of cars in the capital . This new policy was reflected in GPE " plan , which was adopted on DATE . It makes provision for urban renovation based above all on gradual rebuilding that takes account of the present urban fabric and it envisages the preservation and restoration of most of the existing buildings .

On DATE , the Government , granting a request submitted by ORG in DATE , cancelled , as regards CARDINAL properties including those of the applicants , the expropriation permits issued in DATE and DATE . This was because it was by then considered unlikely that the GPE would need to acquire these properties in order to implement its new town - planning scheme .

Notwithstanding the difficulties occasioned by the existence of zonal expropriation permits , it has proved possible to sell CARDINAL properties in GPE affected by such permits .

LAW is the main legal instrument of town - planning policy in GPE . For this purpose , it provides for the drawing up of master plans and city plans .

A master plan ( generalplan ) will be drawn up by the municipality concerned in so far as this may be required in order to establish a framework for more detailed plans . Its adoption is a matter for the municipal council ( kommunfullmäktige ) , which may refer the plan to ORG - before DATE , to the Government - for approval ( Article CARDINAL ) .

City plans are prepared for those urban areas in which this is deemed necessary ( LAW . A city plan is more detailed than a master plan : it will indicate the purposes for which the various areas may be utilised - housing , roads , squares , parks , etc . - and may also include more specific provisions on their use ( LAW ) . After adoption by the municipal council , it must be approved by ORG . In the course of this procedure , property owners have various opportunities to submit their views to several agencies and they may , in the last resort , challenge the decision adopting the plan .

In some cases master plans and city plans will be submitted to the Government for a decision .

In conjunction with - or independently of - these plans , the NORP authorities may resort to expropriations and to prohibitions on construction , measures between which there is not necessarily any legal connection .

As regards expropriation , the law applicable in the present case was mainly that contained in LAW , which was replaced with effect from DATE by LAW DATE ( " the CARDINAL Act " ) . Some additional matters were dealt with in LAW .

It is for the Government to decide whether expropriation should be authorised . Their decision takes the form of an expropriation permit and is based on the various conditions laid down in the LAW . Issue of the permit does not automatically lead to an expropriation ; it simply entitles a given public authority ( or , in exceptional cases , a private individual or a company ) to effect the expropriation if necessary . It leaves intact the owner ’s right to sell , let or mortgage his property , and is subject to a time - limit within which the expropriating authority must initiate judicial proceedings for the fixing of compensation , failing which the permit will lapse . LAW was silent as to the length of this time - limit and as to the extension of the validity of permits .

The official statement of reasons accompanying the PERSON in which LAW originated drew attention to the disadvantages which expropriation permits occasion for property owners - uncertainly , restriction of the possibility of disposing of their property , difficulty in deciding whether to incur expenditure - , disadvantages which become more serious with the passage of time .

For this reason LAW . CARDINAL of LAW of the CARDINAL LAW provides ( translation from the NORP ) :

" Expropriation permits shall set a time - limit for service of a summons to appear for the purposes of judicial proceedings . The time - limit may be extended if there are special reasons . Requests for extension shall be submitted before the time - limit expires . If the owner establishes that the fact that the question of expropriation remains pending has occasioned significantly more serious prejudice , the time - limit may , at his request , be reduced . No decision to reduce the time - limit can be taken until DATE has elapsed since the issue of the expropriation permit . "

The expropriation is not completed until compensation has been fixed and paid . ORG has jurisdiction in the matter ; its decisions may be challenged in ORG and , in the final instance , ORG .

Before DATE , expropriation related only to individual properties ; each request for an expropriation permit described in detail the use to which the expropriating authority intended to put the premises concerned .

The present applications involve another kind of expropriation , known as zonal expropriation . The relevant provision was introduced in DATE , by means of an amendment to LAW , and was repealed in DATE with effect from DATE . It was as follows ( translation from the NORP ) :

" If it is deemed necessary , for the purposes of public transport or town planning , to carry out a complete redevelopment of a densely - populated district and if such redevelopment can be effected only by means of rebuilding the entire district , the King may - where the redevelopment measures involve the adoption or modification of a city plan for the district concerned - grant the municipality the right to buy up the land needed for the redevelopment and also any land which is situated in the same district or in the immediate vicinity and whose value is likely to increase considerably as a result of the implementation of the plan ... "

DATE and DATE , provisions corresponding to this LAW were incorporated in the CARDINAL Act ; they now appear in LAW ( LAW , LAW .

ORG expropriations were thus designed as an instrument for major town - planning schemes . The permits which they entail may be issued as soon as a new city plan is under consideration , that is to say even before detailed arrangements for its implementation have been worked out .

Under LAW of the transitional provisions of LAW , requests for expropriation permits submitted before this new Act came into force continue to be subject to the old Act .

Like the CARDINAL Act , the CARDINAL Act does not provide for any possibility of compensation for prejudice resulting from the length of the validity of , or failure to utilise , an expropriation permit . It does , however , contain one exception ( LAW , DATE , LAW ) : compensation is payable for prejudice occasioned by the issue of an expropriation permit if the authority or person to whom it was granted has instituted , but subsequently abandoned , proceedings for the fixing of compensation .

LAW prohibits any new construction that is not in conformity with the city plan ( LAW ) . It permits , even before , and until , such a plan has been adopted by the municipal authorities and approved by the regional authorities , the prohibition as an interim measure of any construction work ( LAW combined with ORG DATE CARDINAL Act ) . LAW provides as follows ( translation from the NORP ) :

" If a question is raised concerning a request for the adoption of a master plan for a certain zone or for the amendment of a master plan that has already been approved , ORG may , at the request of the municipality , prohibit all new construction ( nybyggnad ) in that zone . The prohibition shall remain in force until a decision in the matter has been taken by the municipal council , but not for DATE . Where necessary , ORG may , at the request of the municipality , extend the validity of the prohibition on contruction by a maximum of DATE at a time .

Exemptions form the prohibition on construction referred to in the preceding paragraph may be granted by ORG or , in accordance with rules laid down by the Government , by the building ORG ( byggnadsnämnd ) . "

The same principle applies where the authorities contemplate adopting a new city plan or amending an existing one ( LAW ) . The principle concerns only new constructions , but LAW states that the provisions on new constructions shall extend " to such alterations to existing premises as may be classified as new construction under rules laid down by the Government " . A rule to this effect appears in LAW ( byggnadsstadgan ) , which reads as follows ( translation from the NORP ) :

" The expression ‘ new construction’ shall mean :

( a ) the erection of entirely new LOC ;

( b ) the horizontal or vertical extension of existing LOC ;

( c ) any rebuilding of the exterior or interior of LOC or any alteration thereto which , on account of its scale , may be equated to rebuilding ;

( d ) the complete or partial conversion of LOC for a use substantially different from their previous one ;

( e ) such alteration to premises as results in their no longer being in conformity with the adopted master plan , city plan or building plan ( byggnadsplan ) or the regulations on building activities in zones situated outside the areas covered by city plans or building plans : and

( f ) any other alteration to LOC which , in their present state , are not in conformity with the above - mentioned plans or regulations , except in the case of residential LOC comprising not CARDINAL dwellings or of outbuildings belonging to such LOC .

However , for the purposes of the present Article , the expression " new construction " shall not include the installation of central heating , water closets or other sanitary amenities in LOC which , even if such installation has not been authorised , are expected to remain in their present state for a considerable length of time . "

In his report of DATE , ORG ( PERSON ) referred to the consequences of long - term prohibitions on construction and envisaged certain solutions ( translation from the NORP ) :

" As for as can be ascertained from the facts , the property owners in the ORG and LOC cases can not have expected to reap any advantages from the town - planning scheme . This means that the scheme could not provide them with any compensation for the prejudicial effects that were clearly occasioned by the long - term prohibitions . If in such cases one does not institute some means of protecting property owners against the prejudicial effect of long - term prohibitions , then - in order to render the implementation of town - planning schemes less expensive for municipalities - CARDINAL or more property owners will themselves have to bear the prejudicial effects of a prohibition which has been imposed mainly in the interests of the community to settle questions of town planning within a reasonable time . Such a system is irreconcilable with the position that should obtain in a ORG governed by the rule of law .

What arrangements should be made to protect a property owner against the prejudicial effects of temporary prohibitions on construction that remain in force for a lengthy period can hardly be stated without a thorough study of the problem . However , CARDINAL possibility would be to set a maximum time - limit for the validity of temporary prohibitions . Nevertheless , such a solution could hardly be regarded as compatible with current requirements , for difficulties over determining what form future development should take mean that long delays can not always be avoided . A preferable method would be to introduce a right for the property owner to seek compensation from the municipality for any loss he may establish or to require that it purchase the land once the prohibition has been in force for more than a certain period .

There should , however , be a condition that the prohibition has been in force for quite a long time and has occasioned significant prejudicial effects that can not be compensated by the advantages which the owners could be expected to gain through the town - planning scheme .

In view of the foregoing , my opinion is that there should be a study of the question of introducing protection for private landowners against the prejudicial effects of unreasonably long temporary prohibitions on construction . " ( Justitieombudsmannens ämbetsberättelse DATE , pp . CARDINAL ) .

At the time when the applicants referred the matter to the ORG , LAW DATE and , in the case of the capital , GPE DATE provided for and regulated a right of appeal ( kommunalbesvär ) against decisions by municipalities . These Acts enabled any local resident - with certain exceptions - to challenge a municipal council ’s decisions before ORG .

Such an appeal could be based on the following grounds only : failure to observe the statutory procedures , infringement of the law , ultra vires conduct , violation of the appellant ’s own rights or application of powers for an improper purpose . The appeal had to reach ORG within DATE of the date on which approval of TIME of the decision had been announced on the municipal notice - board ; the place where TIME might be consulted was also indicated on the notice - board .

Unless otherwise provided , ORG decision could , within DATE from its notification to the appellant , be the subject of an appeal to ORG ( regeringsrätten ) .

Almost identical provisions now appear in LAW DATE ( kommunallagen ) . They were slightly amended in DATE , with effect from DATE , in that the appeal now has to be made to ORG ( kammarrätten ) and not to ORG .

The above - mentioned rules apply to a municipal council ’s decision to request the ORG to issue or extend an expropriation permit .

On the other hand , they do not apply to a decision to request ORG to issue or extend a prohibition on construction : such a decision is , in fact , not open to any appeal to an administrative court .

In GPE , administrative functions devolve largely on administrative authorities whose decision - making machinery is independent of the Government : such authorities do not come under any ORG , and neither the ORG nor the various ORG may give them orders or instructions on how they should apply the law in this or that case .

It is often possible , however , to appeal to the Government against administrative authorities’ decisions .

Thus , a decision by ORG to issue or extend a prohibition on construction may be challenged by means of an appeal to ORG ( LAW par . CARDINAL of LAW ) .

Generally speaking , the NORP administration is not subject to supervision by the ordinary courts . Those courts hear appeals against the ORG only in contractual matters , on questions of extra contractual liability and , under some statutes , in respect of administrative decisions .

Judicial review of the administration ’s acts is , therefore , primarily a matter for administrative courts . These courts , which had their origin within the administration itself , comprise CARDINAL levels : ORG ( länsrätterna ) ; ORG ; and ORG , which was set up in DATE on the pattern of certain foreign institutions , such as the NORP PERSON d’État , but differs therefrom in certain fundamental respects . These courts are composed of independent judges appointed for life and , as a rule , they enjoy wide powers which enable them not only to set aside administrative acts but also to modify or replace them . In practice , it is very common for the lawfulness of such acts to be challenged .

There is , however , an important exception to this principle , in that no appeal may be made against decisions of the Government .

Certain administrative cases - those with the most important political or financial implications - are reserved for decision by the Government as the first and last instance . Expropriation permits fall within this category ( see paragraph DATE above ) .

Although LAW DATE ( förvaltningslagen ) is not formally applicable to proceedings before the Government , they must be conducted in compliance with a number of principles : the right of the person concerned to have access to all the documents in the case ; an obligation on the authority to inform him of any document added to the file and to give him an opportunity of stating his opinion thereon ; the right of the person concerned to express his views orally if he so wishes .

Before the Government take a decision on a request for an expropriation permit , the request will be submitted to ORG which will prepare the file . ORG must , notably , give the property owner an opportunity to present his views on the request ; it will also hear such public authorities as may have an interest in the matter . After collecting the necessary data , ORG will transmit them to the ORG which will then be in a position to arrive at their decision .

Cases examined by the Government give rise to decisions which , as a rule , are not open to appeal . However , in special cases it is possible to lodge an extraordinary appeal , of limited scope , known as an application for re - opening of the proceedings ( resningsansökan ) . Prior to CARDINAL DATE such applications - which may also relate to a decision taken by ORG in an appellate capacity - were made to ORG . Since that date they are made to ORG ( Chapter CARDINAL , LAW , of LAW ) . The grounds for re - opening proceedings are to be found - although the provision is not formally binding on ORG - in LAW , LAW ( rättegångsbalken ) , which reads ( translation from the NORP ) :

" Once a judgment in a civil case has acquired the authority of res judicata , the re - opening of the proceedings in the interests of any of the parties may be ordered :

if a member or an official of the court has been guilty of a criminal offence or of misconduct in connection with the litigation or if an offence in connection with the litigation has been committed by a lawyer or legal representative , and if such offence or misconduct can be assumed to have affected the outcome of the case ;

if a document submitted in evidence was forged or if a party examined on oath , a witness , an expert or an interpreter made false statements , and if such document or statements can be assumed to have affected the outcome of the case ;

if there have come to light facts or evidence which , had they been put before the court previously , would probably have led to a different outcome ; or

if the application of the law underlying the judgment is manifestly inconsistent with the law itself .

Re - opening of the proceedings on the ground referred to in paragraph CARDINAL above may not be ordered unless the party concerned establishes that in all probability he was unable to put the facts or evidence before the first instance or a superior court or that he had some other valid reason for not doing so . "

If , in a case like the present one , ORG accepts that the proceedings should be re - opened , it may either re - examine the whole case itself or refer it back to the Government .

The very numerous decisions taken by the Government DATE in fact give rise to very few applications for re - opening of the proceedings .

In the past , ORG and municipal bodies incurred no liability in respect of decisions which they took in the exercise of public authority , and no compensation could therefore be awarded for damage resulting from such decisions , although there were some doubts about the scope of this immunity . NORP law on this subject was derived from case - law , specific statutes and unwritten principles .

DATE . The same law still applies on many points , but on DATE LAW ( skadeståndslagen ) entered into force . This LAW consolidates and develops a branch of the law governing compensation for damage in extra - contractual matters . It provides that the ORG and the municipalities are not civilly liable for damage caused by their acts . It does , however , make CARDINAL radical change : the acts of the public authorities may now give rise to an entitlement to compensation in the event of fault or negligence ( LAW , LAW ) .

However , the legislature imposed an important restriction on this new principle , in that , save where the decisions in question have been set aside or modified , an action for damages " may not lie " in respect of decisions taken by ORG , the ORG , ORG , ORG and ORG ( Chapter CARDINAL , Article CARDINAL ) . According to authoritative commentaries , the court must , of its own motion , declare the action inadmissible in such case .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award

The applicant was born in DATE and lives in Silopi .

On DATE the applicant was taken into police custody on suspicion of having been involved in the terrorist activities of the ORG ( ORG of Kurdistan ) , proscribed as a terrorist organisation under NORP law .

On DATE the applicant was brought before ORG . He denied the allegations against him . On DATE , a judge at ORG ( sulh ceza mahkemesi ) ordered the applicant 's detention on remand .

On DATE the public prosecutor filed an indictment charging the applicant with treason under LAW .

On DATE the public prosecutor filed a new indictment , charging the applicant under the same provision of the Criminal Code with involvement in other terrorist activities .

On DATE , upon the request of the public prosecutor , the applicant 's case was joined to another case which was being considered in a different chamber of ORG .

On DATE ORG convicted the applicant under LAW of treason and sentenced him to life imprisonment .

The applicant 's sentence was automatically referred to ORG for appeal . The applicant 's request for a hearing on his appeal was granted . On DATE ORG upheld the judgment of ORG .

The ORG refers to the overview of the domestic law derived from previous submissions in other cases , in particular PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . MONEY , § § DATE , DATE ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE . He is currently detained in LOC .

By a final judgment of DATE ORG sentenced the applicant to CARDINAL years’ imprisonment for human trafficking .

On DATE the applicant was detained by ORG after being returned from GPE , where he had fled in DATE , and started serving his prison sentence .

In his initial letter addressed to the ORG on DATE the applicant expressly stated that his rights guaranteed by LAW had been breached in so far as , inter alia , he had been quartered ( cazat ) in FAC , a penitentiary notorious as a place of torture and physical and mental terror because of inhuman and degrading detention conditions . He further contended that his assertions had already been proved before the ORG in the case of GPE v. GPE , no . CARDINAL , DATE , and that they were supported by successive reports of ORG for the Prevention of Torture ( ORG ) .

The applicant was detained in PERSON DATE and DATE , as well as between DATE and DATE .

Between the second part of DATE and the first part of DATE the applicant was detained in cell no . CARDINAL measuring QUANTITY m , which he shared with CARDINAL other inmates .

For DATE , as well as between the second part of DATE and DATE , the applicant was detained in cell no . CARDINAL measuring QUANTITY m. The occupancy rate of the cell was CARDINAL inmates for DATE and CARDINAL for the remainder of the period spent by the applicant in PERSON .

In respect of the hygiene conditions , the ORG submitted that every year the prison administration signed contracts for rodent and pest control with specialised companies . Disinfection of the detention rooms was carried out at least once DATE . Moreover , the quality of the drinking water was examined regularly by the prison administration with the aid of a specialised laboratory . Furthermore , the applicant had been provided with a special food diet approved by the prison doctor , which was prepared and served in accordance with the required hygiene conditions . The food was fresh and of good quality .

Since DATE significant rehabilitation work had been carried out by the prison authorities . The heating network , the sewerage and the water supply systems had been repaired . Some sections of the prison and detention rooms had also been modernised .

On DATE and DATE the applicant was hospitalised in the psychiatric unit of ORG and was diagnosed with organic personality syndrome . He was prescribed treatment for his condition .

On an unspecified date in DATE the applicant was diagnosed with spinal disc hernia . The examining doctor recommended that the applicant undergo surgery .

DATE and DATE the applicant was subjected to several other medical examinations – both in prison and in civilian hospitals – that confirmed the above - mentioned diagnoses , and he was prescribed treatment with various medicines . The prison authorities provided him with the prescribed treatment for his organic personality syndrome and his spinal disc hernia .

On DATE the applicant filed a request with the prison doctor to be allowed to be examined in connection with his spinal disc hernia at the A.D. private clinic at his own expense .

On DATE the doctor , M.M. , granted the applicant ’s request and indicated that he was scheduled for a nuclear magnetic resonance ( ORG ) scan at the PERSON private clinic .

On an unspecified date the applicant was taken to the PERSON clinic for the ORG , but the scan was not carried out because of his excessive weight , which could have damaged the machine .

On DATE the applicant was taken to the H. private clinic , where the ORG scan was carried out free of charge .

On DATE the applicant was examined in respect of his spinal disc hernia by doctor PERSON , a specialist neurosurgeon from ORG in GPE , and was recommended treatment with ORG , PERSON and PERSON . An appointment was made for a re - examination of his condition .

On DATE doctor GPE re - examined the applicant in respect of his spinal disc hernia . He recommended that the treatment with Tramadol and PERSON be continued and that the applicant be monitored in the infirmary prior to his surgery .

According to information submitted by the Government on DATE , the applicant refused to be admitted to the ORG prison infirmary and on DATE ORG informed the prison authorities by telephone that the applicant ’s surgery had been temporarily postponed .

On DATE the applicant ’s surgery was re - scheduled by doctor GPE for DATE .

According to the information submitted by the ORG , on an unspecified date the applicant informed the prison doctor that his family had contacted doctor PERSON and asked him to re - schedule his surgery for DATE . The applicant ’s statement was confirmed by doctor PERSON by telephone .

On DATE the applicant was re - examined by doctor PERSON in respect of his spinal disc hernia . He was recommended treatment for DATE and his surgery was scheduled for DATE .

According to the applicant ’s medical file , his medical condition continued to be examined and monitored by specialist doctors in private and prison hospitals .

On DATE the applicant was taken to ORG for a neurosurgical examination . However , the neurosurgeon was absent and his examination had to be re - scheduled for DATE .

On DATE the applicant was examined by doctor PERSON , a specialist neurologist working for ORG . According to her report , the applicant was suffering from lumbar pain . She prescribed treatment and recommended an urgent neurosurgical examination in respect of his condition .

DATE and DATE the applicant ’s medical condition was regularly examined in both prison and private hospitals . On DATE and DATE the medical reports produced in respect of his conditions recorded that the applicant ’s general state of health was good .

On DATE the applicant was temporarily released from prison , as required by the final judgment of DATE ( see paragraph CARDINAL , below ) , and in DATE he was operated on for spinal disc hernia .

On DATE the applicant returned to prison after his spinal disc hernia surgery .

On DATE the Mina Minovici Forensic ORG produced a forensic report in respect of the applicant ’s medical condition . It concluded that after the spinal disc hernia the applicant needed physiotherapy for his recovery , which could be provided in prison hospitals .

DATE and DATE the applicant ’s medical conditions were monitored regularly by prison hospitals . According to the medical records drawn up on DATE by the ORG doctor , his general medical condition was good .

On DATE the applicant refused to be hospitalised in ORG and he requested to be taken to civilian hospitals for his post - surgical recovery treatment .

In a letter of CARDINAL DATE ORG authorities informed the Government that the applicant had been provided free of charge with the medical treatment prescribed by doctors for the entire time he was detained in that prison .

On DATE the applicant lodged a complaint with the judge responsible for the execution of prison sentences in respect of the conditions of detention in PERSON and a lack of adequate medical care . The applicant also claimed compensation . He complained of inhuman and degrading treatment because : ( i ) the prison cells were infested with vermin ; ( ii ) the quality of the food and drinking water was poor ; ( iii ) proper facilities for personal and food hygiene were lacking ; and ( iv ) the cells lacked furniture and the general living conditions of the detainees were poor . On DATE , at the hearing before the judge responsible for the execution of prison sentences , the applicant stated that his complaint concerned a lack of medical care for his spinal disc hernia and insufficient medical treatment for his organic personality syndrome .

By a decision of DATE the judge responsible for the execution of sentences dismissed the applicant ’s complaint . The judge held that FAC authorities had taken the necessary steps to combat the vermin infestation of the cells as they had signed pest control contracts with a number of companies and the cells were disinfected at least once DATE . Moreover , the judge held that the applicant ’s complaints concerning the poor quality of the food and drinking water and the lack of food and personal hygiene facilities were unfounded , as : ( i ) the food at the prison was prepared and stored on the basis of guidelines set by ORG ; ( ii ) the quality of the drinking water had been found to comply with legal requirements according to an expert report of the ORG water testing laboratory ; ( iii ) the applicant had access to the prison facilities necessary to ensure his personal hygiene ; and ( iv ) he was under an obligation to clean and air his room in accordance with the DATE schedule for detainees . The judge also held that there was no evidence that the general living conditions for detainees as provided for in PERSON No . CARDINAL/CARDINAL had not been met in the applicant ’s case . Finally , the judge held that the applicant was being provided with adequate medical care . He was kept under medical surveillance , was prescribed the medical treatment that the doctors considered appropriate for his medical condition and , in addition , his request to be treated at DATE ’s natural private clinic at his own expense had been examined according to the relevant legal provisions . The judge also rejected the applicant ’s claim for compensation , finding that the applicant could not bring a claim for compensation on the basis of the procedure provided for by Law No . CARDINAL/CARDINAL and that he therefore had to bring separate proceedings seeking compensation . The applicant appealed against the judge ’s decision .

On an unspecified date in DATE the applicant brought proceedings in the ORG seeking temporary release from prison on medical grounds . The domestic court ordered an expert forensic report in respect of the applicant ’s medical condition .

According to the expert forensic report produced by ORG on DATE , the applicant was suffering from , inter alia , a spinal disc hernia which required surgery and specialised post - surgery recovery . Consequently , the forensic expert report recommended the discontinuance of the applicant ’s prison sentence for DATE on the ground that the applicant ’s spinal disc hernia could not be operated on in a prison hospital .

By a final judgment of DATE ORG allowed the applicant ’s action seeking his temporary release from prison on medical grounds and ordered his immediate release .

On DATE the ORG authorities informed ORG that the applicant could not be released as ORG had issued a separate arrest warrant in his name on DATE in a separate set of proceedings concerning human trafficking .

On DATE ORG informed ORG authorities that the applicant ’s pre - trial detention on the basis of the arrest warrant of CARDINAL DATE had been extended by an interlocutory judgment of DATE . It does not appear from the evidence in the file that the applicant appealed against the interlocutory judgment of DATE .

By a final judgment of DATE ORG dismissed the applicant ’s appeal against the decision of the judge responsible for the execution of sentences dated DATE , upholding the decision and finding that there was no evidence that the applicant ’s rights as a detainee had been breached .

On DATE the applicant was subjected to a psychiatric evaluation in ORG . The medical report confirmed that the applicant ’s organic personality syndrome had improved .

By final interlocutory judgments of CARDINAL DATE , CARDINAL May , DATE , CARDINAL DATE , DATE , DATE and DATE ORG dismissed the applicant ’s actions seeking the discontinuance of the pre - trial detention ordered against him on DATE . By a final interlocutory judgment of CARDINAL DATE ORG also dismissed the applicant ’s request for the suspension of the proceedings on medical grounds . Neither of the parties has provided the ORG with the reasoning part of the interlocutory judgments delivered by ORG .

DATE . On DATE ORG informed ORG authorities that following its interlocutory judgment delivered on DATE , the applicant ’s pre - trial detention ordered on the basis of the arrest warrant issued on DATE had been revoked and the applicant had been placed under an obligation not to leave town .

Excerpts from the relevant legal provisions concerning the rights of detainees , namely PERSON no . CARDINAL/CARDINAL , are given in the cases of LOC v. GPE ( no . CARDINAL , § § DATE , DATE ) ; PERSON v. GPE ( no . CARDINAL , § DATE , DATE ) ; and GPE v. GPE ( no . CARDINAL , § DATE , CARDINAL DATE ) .

Excerpts from the relevant parts of the reports of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) on prison conditions are given in the case of GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .

The relevant parts of the report of ORG of DATE in respect of the detention conditions in PERSON read as follows :

“ ... the basement of the old part of the prison building was completely flooded with waste water ... Consequently , rats and cockroaches ( and bed bugs according to some detainees ) have infested the cells in that part of the building . Moreover , most cells were also infested with lice , mainly due to worn out bed mattresses . No delousing operation could be effective as long as the mattresses were not replaced ... The prison management claimed it had engaged several pest control companies , which all gave up after taking note of the situation in the prison . Another notorious problem was the extremely poor water quality ( muddy and filled with impurities ) - unfit for drinking and risky even for washing ... In terms of detention space , the total area of detention space was QUANTITY . m , while the population was CARDINAL , meaning CARDINAL sq . m of available detention space per detainee , CARDINAL of the minimum norm recommended by the ORG ... The kitchen area was totally unhygienic and the food quality was poor ... ”


The applicant is a NORP citizen , born in DATE and he is currently in prison in GPE .

A.

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

On DATE the applicant pleaded guilty to assault occasioning actual bodily harm and to wounding with intent . Both charges related to unprovoked and serious assaults on CARDINAL different women , the latter victim having been beaten and stabbed in the neck CARDINAL times by the applicant . The applicant received a life sentence on the latter charge and no separate sentence on the former . The trial judge had before him a medical report on the applicant which showed an abnormal encephalogram with symptoms of disturbed behaviour associated with abnormal electrical activity in the temporal lobe of the brain . A psychiatric report dated DATE considered that anticonvulsive drugs were required for this condition , that antidepressants were required for his recurrent depression and that he needed observation in secure surroundings where he could have further tests , surveillance and study . The trial judge made it clear that the imposition of the life sentence was to ensure that the applicant would not be a liberty until those responsible for his supervision were satisfied that the risk he posed to the public , and particularly to young women , was gone . ORG rejected his appeal against sentence by judgment dated DATE . That court described the attacks as “ horrifying ” and noted that , while the applicant had initially denied the attacks , he had then stated that he had committed them in revenge for a sexual assault on him by a man when he was DATE .

The applicant was subsequently diagnosed as suffering from a psychopathic disorder within the meaning of LAW DATE and in DATE he was transferred under LAW of LAW to a psychiatric hospital . In DATE the applicant was transferred back to the prison system because he was not deemed suitable for treatment . Following a ORG review , he was transferred in DATE to ORG prison which was a progressive move to less secure Category C conditions . The applicant completed his non - vocational industrial skills qualifications there . Following another ORG review , he was transferred in DATE to open conditions in PERSON prison where he completed a “ supervised resettlement and lifer skills ” course .

On DATE a discretionary life panel ( “ DLP ” ) of ORG reviewed the applicant 's case . A number of very positive reports were before the ORG , all referring to his past sexual identity problems and all ( but one ) recommending without reservation his release on licence . The report of ORG PERSON prison noted that the applicant accepted full responsibility for his behaviour and sincerely regretted what he had done and concluded that the risk posed by the applicant on release would be minimal . The principal officer in the “ lifer unit ” at HM Leyhill prison indicated that the applicant had been working in the community and had had CARDINAL home leaves all of which had gone well . His behavioural record was excellent and his performance was first class . The psychologist 's report dated DATE considered the applicant 's attitude to his offences to be appropriate . It detailed , under the heading “ Insight into offence related behaviour ” , the applicant 's sexual identity problems which included a prior and long period of transsexualism and a homosexual relationship in prison . However , it was noted that the applicant had worked through these matters and had now come to terms with his male heterosexual identity .

The psychiatric report dated DATE considered that the applicant had been angry because of his frightening childhood , his being sexually assaulted when he was young , his serious speech impediment , he felt trapped at the time of the offences in an unhappy common - law marriage and as a result of his transsexual feelings . It was felt that a combination of this anger and his inability to communicate was the explosive combination that led to the offences . That report detailed the reasons for his sexual identity issues and , noting that these issues had been resolved by the applicant and that he had a stable relationship for DATE with a woman , the psychiatrist could not see how he could be a danger on release . CARDINAL probation officer reports were equally supportive of the applicant 's release . A third probation report did provisionally express some reservations about the depth of the applicant 's understanding of his offences referring , inter alia , to his sexual identity problems and noting that such problems were considered in many previous reports to have been one of the main factors in the applicant 's offences . The ORG directed the applicant 's release on licence , one of the conditions being that he reside at a probation hostel .

The applicant was conditionally released on DATE . On CARDINAL DATE the probation service submitted a report outlining certain concerns about the applicant 's behaviour . It was noted that the applicant had been observed by hostel staff taking an undue interest in a woman residing opposite the hostel . The probation service had also found a bread knife , a pair of binoculars , a pair of handcuffs , women 's clothing , women 's clothing catalogues and a fetishist catalogue in the applicant 's room . Concern was also expressed about the applicant 's relationship with prostitutes . Given his offences and his history of mental instability , the probation service no longer felt in a position to be able to supervise him safely in the community and recommended his immediate recall .

On DATE the applicant 's licence was revoked by the Secretary of ORG under LAW ) of LAW DATE and he was taken to prison . The ORG confirmed his recall on DATE . On the applicant 's initiative , his case was re - examined by the ORG on DATE , the ORG hearing the applicant and his counsel together with evidence from a psychologist and psychiatrist . The ORG found no convincing explanation from the applicant for most of the matters noted in the probation service report . At the request of the applicant 's counsel , the panel recommended that certain investigations be carried out . These included a full neurological and a full neuro - psychological assessment , ORG and ORG scans , an investigation of the applicant 's sexual identity and possible fetishism and , thereafter if appropriate , investigation of a possible sexual motive for the offences for which he had been convicted in DATE . The panel also recommended assessment for ORG ( “ SOTP ” ) and consideration of the applicant 's transfer for treatment if a sexual motive for his offences was established . These recommendations were accepted by the Secretary of ORG .

Prior to his transfer to ORG prison , the applicant requested clarification from the prison authorities of whether he was being transferred to ORG prison to take part in the ORG or to be assessed for such a course . The reply stated that “ you are going to do a ORG course ” . On DATE the applicant was moved to GPE prison . On DATE the applicant requested copies of the results of various tests he had already undergone and information on further tests to be done . He was informed , inter alia , that he was on the waiting list for ORG ( ORG ) assessment . Further to another query the applicant was furnished , on DATE , with certain results of previous tests and with the question and answer leaflet on the ORG test ( detailed above at “ Relevant domestic law and practice ” ) . On DATE the applicant met with a senior psychologist who explained to him the proposed ORG procedure and the nature of the material which it was planned to use . The purpose of doing so was to ensure that the applicant agreed to the ORG assessment and was prepared for it in order to avoid extreme reactions during the test which would limit its usefulness . The applicant was reticent but agreed to participate in the test .

On DATE the applicant underwent his first ORG test and it lasted TIME and TIME . A female trained technician conducted the tests . The applicant was put in a small room without windows and with bolts both inside and outside the door . CARDINAL electrodes were attached to his left index and middle finger . A video recorder was adjusted to the level of his face and the operator left the room although monitoring of the applicant was possible via a camera and a microphone . The applicant then had to attach a sensor clip to his penis and to leave his underpants and trousers removed throughout the test .

The applicant was shown CARDINAL categories of material . The first category ( designed to discover any age preferences ) was a set of slides comprising nude images of young children , pubescent and adult males and females . The images were produced in GPE for the purpose of the ORG assessment and all images were single frontal nudes , either sitting , standing or prone but not posed in a deliberately erotic fashion . The second category was a set of video sequences depicting consensual sex , rape and non - sexual violence . The sequences were also produced for the ORG assessment . The third category was a set of slides depicting young men and women in more erotic poses than in the first set of slides , elderly naked women in relatively non - erotic poses and women in bondage poses . The latter images were all obtained from soft - core pornographic magazines such as could be openly and legally published in specialist shops . The slides were left on for TIME and each was shown approximately CARDINAL times . Each video lasted TIME . The videos and slides were shuffled , being shown in no particular order . The television on which the slides and videos were shown was at eye level QUANTITY from his face and the applicant 's head was kept steady by a headrest on the back of the chair . The test then continued with a ' key score ' pad , the applicant being requested to score from CARDINAL his sexual attraction to the same slides which he was again shown , each slide being shown CARDINAL times .

His second PPG test was conducted on DATE . It lasted TIME , was similar to the first but the applicant was shown slides only . The slides were each shown CARDINAL times and in no particular order .

The document headed “ ORG results ” for DATE noted that the applicant had consented to the test because he wanted a transfer from ORG . As regards the slides , it was recorded that the greatest response of the applicant was to male children and that his responses to adults was low . As to the videos , it was noted that his response to aggression was higher than would be expected . It was also noted that the applicant was not happy with the violent scenes as it brought back bad memories of the offences . The general remarks recorded in his test results after DATE was that his preferences were “ non - deviant ” given that his greatest responses was to adult females .

In a report dated DATE a forensic psychologist from GPE prison assessed the applicant based on the ORG test results and other formal and informal assessment procedures . It was noted that the applicant did not have an “ index ” conviction including a sex offence , an index offence which included an unconvicted sex offence , a previous conviction for a sex offence nor any other indications that his sexual behaviour could , at any point , be deemed inappropriate . However , given the reasons for his recall , the report focussed upon behavioural trends present which may or may not imply a future sex offence . The test disclosed no strong indication that there were risk factors and indicated that he did not have a deviant ORG profile . In the circumstances , together with the absence of any indication of substance abuse or of any relevant previous convictions of note , the conclusion was that the applicant presented a low risk case of re - offending .

As to the items found in his possession prior to recall , this report noted they provided no substantive evidence on which to base a risk of re - offending . It was noted that the initial ORG assessment demonstrated a mysogynistic profile rather than one which is directly indicative of his deriving sexual pleasure from inflicting aggressive action upon others . Given this initial assessment , the second ORG test had been tailored to focus on that mysogynistic profile and the second test had indicated that his profile was non - deviant . The report therefore concluded that the principle concern in the applicant 's case was his resentment of females rather than a pro - active desire to harm them for sexual gratification . As to the applicant 's convictions , the psychologist noted that although there was an opportunity for , there was no evidence of , sexual interference with the victims . It was considered not insignificant that the victims were both women but the offences should not be considered for that reason sexual assaults . That psychologist did not consider the applicant a candidate for the ORG . However , given the applicant 's deep seated resentment of females in his life , it was highly recommended that the applicant continue the Enhanced Thinking Skills Programme he had begun and pursue other relevant treatment programmes .

B. Relevant domestic law and practice

A document entitled “ Your questions and answers about the ORG ” produced by the prison authorities reads as follows :

“ What is the ORG ?

It is a test that helps us to understand the direction and extent of a man 's sexual interest .

What is the point of the test ?

It is important for us to know if you are aroused inappropriately , as it will help us to tailor the treatment to best help you .

How does it work ?

You will be asked to put a clip around your penis . You will be able to feel it in place but it will not hurt . The clip can detect changes in the size of your penis .

Who will carry out the test ?

The test will be carried out by a trained psychologist . Your privacy will be respected at all times , and when you are undergoing the test you will be sitting alone in a separate room .

Do I have to do the test ?

It is an important part of the Sex Offender Programme . We feel that we can not successfully treat people 's offending if we do not have full information about the nature and extent of their sexual interest .

What will I have to do ?

After you have fitted the ORG clip you will sit in front of a television and you will be shown some pictures of males and females of various ages . You will also be shown some movies . The pictures you will be shown are the same for everybody , and nothing is more explicit than the kinds of things you might ordinarily see on the TV or in the newspapers .

Is it safe ?

Every care is taken to ensure your safety . The equipment is made to very high standards and is regularly tested . It would be impossible for it to give you a shock - even in the unlikely event of something breaking down the voltages used are very low and quite safe . The equipment is fully sterilised every time it is used and so no diseases can be passed on .

Will I be given electric shocks .

No . Electric shock treatment IS NOT USED .

Are the results confidential ?

The ORG is an important part of the Sex Offender Programme and it is important that the Tutors have as much information about the people on the programme as is possible . The programme staff however will NOT gossip about your results to other staff or to inmates .

What if the test shows an interest that does not exist ?

Men can have an abnormal sexual interest for a lot of reasons , and just because they have an unusual interest it does not necessarily mean that they will act on it . But if someone has offended in a particular way and his ORG results show a sexual interest in that direction we know that to help him avoid further offending we must help him to do something about the sexual interest .

Can the ORG prove that I did ( or did n't ) commit an offence ?

NO . It is not possible to say that someone is guilty of an offence simply because they show sexual interest in that direction . The point of a ORG is to help plan the treatment of someone who is known to have committed an offence . ”


The applicant , Mr PERSON , is a NORP national , who was born in DATE . He is presently serving a prison sentence in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by Ms I. Kalmerborn , ORG .

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

On DATE a prisoner was killed at GPE prison where the applicant was serving a prison sentence . Suspicions quickly centred on CARDINAL persons , the applicant and QUANTITY other prisoners .

On DATE , while the applicant was being interviewed by the police , he was informed , in accordance with chapter CARDINAL , section CARDINAL of LAW ( PERSON ) , that he was suspected of murder . Having been informed also of his right to be assisted by defence counsel , the applicant stated that he wanted CARDINAL of CARDINAL named lawyers to be appointed for him ; otherwise , he would not answer any questions . However , no counsel was appointed . Later the applicant contacted a lawyer with regard to the confiscation of certain objects from his cell and , at further police questioning on DATE , he stated that he wished to be represented by that lawyer . Still , he claimed that he would not make any statement before a possible court hearing in the case . No questions about the murder were put to the applicant during the CARDINAL police interviews .

Assisted by the lawyer , the applicant sent written requests for counsel to be appointed , to the police on DATE and to the public prosecutor in charge of the preliminary investigation , at ORG in GPE , on DATE . The prosecutor did not report the matter to the court , however . Contacted by the lawyer by telephone in DATE , the prosecutor stated that the issue of appointing defence counsel did not arise , as the applicant refused to answer questions posed by the police . The prosecutor was reminded of the matter by a letter from the lawyer on DATE . DATE , no measures having been taken in this regard , the applicant , via the lawyer , made a request to ORG ( tingsrätten ) of GPE to have counsel appointed for him . In an opinion to the court , the prosecutor endorsed the request . On DATE the court appointed the lawyer , who had assisted the applicant , as his defence counsel .

On DATE the public prosecutor made a request to ORG for the taking of evidence outside a main hearing ( bevisupptagning utom huvudförhandling ) . The court immediately summoned defence counsel for the applicant and the CARDINAL other suspects by telephone for a hearing DATE . No documents were submitted and the CARDINAL suspects themselves were not summoned . At the hearing , the public prosecutor informed counsel for the defence that a witness , who allegedly had been present when the murder was committed , had expressed to the police DATE that he was willing to testify , but only before a court . Furthermore , fearing reprisals , he would only testify anonymously . The taking of evidence was urgent as the witness would be expelled from GPE to a distant country DATE . Defence counsel for CARDINAL of the other suspects was unable to attend the hearing and the court therefore , at the prosecutor ’s request , appointed another lawyer to represent that suspect during the hearing although the counsel in question , contacted by his colleagues by telephone , disagreed with this measure .

Counsel for the defence objected to the procedure , complaining that they had not received the records of previous police interviews with the witness and had not been given adequate time to prepare for the hearing or confer with their clients . They were also opposed to the witness remaining anonymous . The public prosecutor stated that she did not have any records of previous police interviews at her disposal .

ORG , sitting with its president , decided to allow the taking of evidence under LAW , section CARDINAL of the Code of Judicial Procedure with the procedure requested by the prosecutor . The court referred to a parliamentary committee report ( SOU CARDINAL:CARDINAL , p. CARDINAL ) in which it had been noted that the use of anonymous testimony , in certain circumstances , was allowed according to the case - law of ORG . The court had further regard to the special circumstances described by the prosecutor and considered that the fact that the suspects themselves had not been summoned to the hearing did not constitute an impediment for the hearing to go ahead . It also observed that the circumstances surrounding the hearing would have to be taken into account at a future evaluation of the evidence in question .

After having identified himself to the court in the absence of counsel for the defence , the witness was placed behind a screen , making him visible to the court and the prosecutor but not to counsel . During the questioning , counsel were able to cross - examine the witness .

Immediately after the taking of evidence the applicant was arrested and placed in custody . The public prosecutor applied for a detention order , referring to the evidence obtained from the anonymous witness .

On DATE ORG , sitting with a different judge , held a detention hearing in the presence of the applicant and his counsel . The prosecutor explained that there was other evidence against the suspects in the case which she could not present at that time as she needed more time to put together the material . Following the hearing , ORG ordered the detention of the applicant . By other decisions taken on DATE , the court also ordered the detention of the other CARDINAL suspects .

The applicant appealed and , on DATE , ORG ( PERSON hovrätt ) quashed ORG detention order . The appellate court noted :

“ The examination by ORG of an anonymous witness has not been permitted under NORP law . The fact that [ ORG ] , in certain circumstances , has found such examinations to be in conformity with [ the Convention ] is therefore of no relevance to the question whether such examinations are allowed in GPE .

The evidence presented by the public prosecutor is , in ORG opinion , not such that [ the applicant ] can be considered as suspected of murder on probable cause . ... ”

On DATE , at TIME , that is CARDINAL after ORG decision , the public prosecutor again decided to have the applicant as well as the other suspects arrested . The applicant was arrested at TIME His counsel was not notified . It appears from the arrest order that the reason for his arrest was the risk that he would impede the inquiry of the murder ( kollusionsfara ) . Following an interview with the police , which began at TIME and at which the applicant gave no statement , the applicant called the law offices of his counsel at TIME and informed another lawyer of the arrest . That lawyer immediately requested ORG in GPE to review the arrest . On DATE , at TIME , the assistant chief prosecutor , having considered the evidence as a whole , decided to quash the CARDINAL arrest orders . She noted that she had contacted the public prosecutor who had then stated , as reasons for the arrests , that new information had surfaced .

The applicant was arrested anew on DATE and was later detained by ORG .

The applicant was given access to the report of the preliminary investigation on DATE .

On DATE the applicant was indicted for murder . A copy of the report of the preliminary investigation , including a transcript of the testimony given by the anonymous witness , was submitted to ORG . The public prosecutor sought to have an audiotape recording of that testimony played back at the court ’s main hearing . She also requested that CARDINAL person be heard about what had happened at the taking of evidence with that witness and that CARDINAL policemen be heard about what had come out of police interviews with QUANTITY inmates at GPE prison .

Counsel for the CARDINAL suspects in the case objected to the above evidence . They pointed out that anonymous testimony was not allowed under NORP law ; the fact that the name of the witness had been disclosed since the taking of evidence made no difference . As that evidence should be refused , the testimony of the person supposed to give evidence in that regard was irrelevant . Furthermore , the inmates in question should be heard in person at the main hearing or could have been heard in person previously outside the main hearing .

By a decision of DATE , ORG disallowed the above evidence . It basically agreed with the arguments presented by counsel for the defence and referred to ORG decision of DATE on the anonymous testimony . It further stated that , although hearsay evidence was not as such prohibited under NORP law or the Convention , it deprived the defendants of the possibility to cross - examine and noted that the public prosecutor had adduced no reasons as to why the CARDINAL inmates had not been summoned to give evidence at the main hearing or at a taking of evidence outside the main hearing .

ORG held an oral hearing in the case on DATE and inspected the prison training facilities where the murder had taken place .

In a partial judgment of DATE ORG found CARDINAL of the CARDINAL other defendants guilty of murder and sentenced him to life imprisonment .

By another partial judgment of CARDINAL DATE ORG convicted the applicant of murder . He was sentenced to DATE in prison .

The main piece of evidence was an alleged eye - witness account of an inmate , PERSON According to a police memorandum included in the report of the preliminary investigation , PERSON , who was to be expelled after having served his prison sentence on DATE , had expressed his willingness to testify on the condition that he would be allowed to remain in GPE . However , it had been explained to him that only the Government could revoke an expulsion order . He had been questioned several times by the police in DATE and DATE following his release from prison , while he was awaiting expulsion . No further information was given on what had preceded the hearing of PERSON before the court .

In his testimony , PERSON claimed that he – and the person who had given evidence anonymously – had been present in the small weight - training room where the murder had been committed . He stated that he had seen the CARDINAL suspects stabbing the victim with knives of the same type which he believed had been sharpened . Another inmate had told him that the defendants had proceeded to the sauna where they had placed CARDINAL knives in a hole and had then gone to the shower .

PERSON further stated that , when interviewed by the police immediately after the stabbing , he had claimed , in order to protect himself , that he did not know anything about the event . However , he had later suffered from nightmares and a bad conscience and felt that it was not right to keep silent about what he had seen . When contacted by the police on DATE , he had agreed to testify .

During cross - examination , PERSON stated that the police had helped him to make a petition to the Government for the expulsion order to be revoked . Having been given a residence permit in DATE on humanitarian grounds , he claimed that the petition had referred to political grounds and his diabetes and not to his giving testimony before the court . He had signed the petition himself but he did not know whether the police had attached any enclosures . The police had sent the petition in DATE and , by a Government decision of DATE , he had been granted a temporary residence permit until DATE . After he had been released from detention , where he had been awaiting his expulsion since having served his prison sentence on DATE , the police had found a flat for him with a secret address and had also helped him to buy a television set and had seen to it that he was generally comfortable . However , the police had not tried to influence his testimony .

In evaluating PERSON ’s testimony , ORG took into account that he had given his first statement about the event in DATE , at which time the police had helped him to apply for a revocation of his expulsion order . The court noted that the application signed by PERSON stated , as reason for granting the request , that he had important information to give about the case . In an attachment dated DATE , the public prosecutor and the police stated that it was important that PERSON be allowed to remain in GPE during the police investigation and the court proceedings . The court considered , in general , that , in view of the risks involved in talking to the police , a prisoner ’s late submission of information did not necessarily diminish the credibility of the testimony . Noting furthermore that PERSON had been very anxious to stay in GPE , the court considered that there were CARDINAL possible ways to interpret his decision to testify : either he had perceived a chance to be granted a residence permit if he gave testimony and had , to this end , made up a story which corresponded with the police ’s view of the case , or he had actually seen everything he now stated but had not dared to mention it until he was promised help with the above - mentioned application and concluded that the benefits of testifying outweighed the risks involved . Without giving any reasons for its conclusion , the court opted for the second interpretation .

ORG then assessed the credibility of PERSON ’s statements by comparing them with testimony given by other prisoners and the technical and other evidence in the case . The court could not infer from any of these pieces of evidence that the applicant had been involved in the murder , nor did any evidence exclude his involvement . It considered , however , that PERSON ’s statements were supported by the technical evidence and were supported , or not contradicted , by the other evidence . It therefore considered that the murder had been committed as described by the public prosecutor .

In sentencing the applicant , ORG took into account that , on DATE , he had been sentenced to CARDINAL years’ imprisonment for an attempted murder in DATE and that , on DATE , he had been sentenced to DATE in prison for , inter alia , a murder committed in DATE . The court noted that , as the applicant had been below DATE when the murder of the prisoner had been committed , he could not be sentenced to life imprisonment .

The applicant appealed against the judgment . The public prosecutor requested that she be allowed to use the evidence that had been disallowed by ORG .

By a decision of DATE ORG dismissed the evidence relating to the anonymous testimony but allowed CARDINAL policemen to be heard about the statements given at the police interviews of CARDINAL inmates at GPE prison . At the subsequent hearing , CARDINAL of the CARDINAL policemen gave evidence . The prosecutor withdrew the other policeman ’s testimony .

Joining the applicant ’s appeal and the appeal of the co - defendant who had been convicted by ORG partial judgment of DATE , the appellate court held an oral hearing and also inspected the prison training facilities . At the hearing , PERSON stated , inter alia , that the police had not only found a flat for him but also a job . Furthermore , the police had given him financial aid , MONEY in cash on CARDINAL occasions . They had also helped him to apply for a prolongation of his residence permit , which had been granted until DATE . He pointed out , however , that he had given the police a detailed statement of the course of events before the ORG ’s decision to grant him a residence permit in DATE .

During the proceedings in ORG in DATE , the public prosecutor submitted a document in which the police stated that the risk assessment they had made had led to the provision of witness protection to GPE The details of this protection were secret . It was stated , however , that the measures taken , including the financial aid , had been purely of a humanitarian nature and directly linked to the witness protection programme and that no money had been given to PERSON to bribe him to give evidence .

On DATE ORG upheld ORG judgments . It noted that the testimony given by PERSON constituted the central evidence in the case and that it was of decisive importance whether his statements could be considered reliable enough to convict the co - defendants . According to the appellate court , the other evidence relied on by the public prosecutor had by and large no independent significance but in effect only served the purpose of showing that PERSON ’s description of the course of events could be correct . In evaluating PERSON ’s statements , the court considered that , although the circumstances surrounding the delivery of those statements had to be given careful consideration , his connection with the police was of no relevance to the assessment of the reliability of his statements . Instead , in assessing their credibility and reliability , it had to be determined whether they gave the impression that the events had been experienced by PERSON himself and what weight should be given to the supporting evidence . In these respects , the court found that PERSON had given a calm and confident impression , that he had given essentially identical information on all the occasions he had been heard and that there was no indication that PERSON had any reason falsely to blame the suspects . It also considered that another prisoner , heard on appeal but not at first instance , had given information which supported PERSON ’s account . The latter was further supported by the location of the blood stains found in the prison training facilities . Moreover , the shape of the handles of the knives found in the sauna and the traces of blood discovered on the knives pointed towards the applicant ’s involvement in the crime . In conclusion , the appellate court found that PERSON ’s statements in all essential details were supported by the other evidence in the case and that they were in no essential details contradicted by any piece of evidence . The court considered that the supporting evidence was of considerable weight . However , no part of the appellate court ’s reasoning was based on the evidence given by the policeman whose testimony had been allowed by the decision of DATE .

On DATE ORG ( Högsta domstolen ) refused leave to appeal against the appellate court ’s judgment .

The third suspect of the murder in question was apprehended and convicted in DATE . In this case , ORG allowed the public prosecutor to invoke as evidence the reading of a transcript of the statement given by the anonymous witness in DATE .

By a decision of DATE ORG ( PERSON ) , upon the applicant ’s complaints , criticised the preliminary investigation in the applicant ’s case in several respects . He made the following concluding remarks :

“ In [ the present case ] , which concerns a preliminary investigation of a murder , several issues of great importance for the protection of the suspect ’s legal rights [ rättssäkerhet ] during a preliminary investigation have arisen . These issues concern , inter alia , the suspect ’s right to defence counsel , the procedure for hearing witnesses before a court during the preliminary investigation , the public prosecutor ’s presentation of the investigation material at the detention hearing and the possibility for the prosecutor to arrest a suspect anew following a court ’s quashing of a detention order concerning that suspect .

The inquiry shows that the public prosecutor in charge of the preliminary investigation failed to forward to the court the suspect ’s wish that defence counsel be appointed for him . A person who is suspected of a crime in respect of which is stipulated a sentence of CARDINAL months’ imprisonment has , under LAW , an unconditional right to have appointed defence counsel upon request . If defence counsel is to be appointed for the suspect , the person in charge of the preliminary investigation is under a duty to notify the court thereof . The right to defence counsel is of fundamental importance for the protection of the suspect ’s legal rights and , accordingly , there are reasons to severely criticise the responsible public prosecutor on account of her failure in this respect .

An issue of great principal interest in the case concerns the possibility to hear before a court a witness whose identity is not known to CARDINAL of the parties . At the public prosecutor ’s request , during the preliminary investigation a hearing for the taking of evidence was held before a court at which a witness relied on by the prosecutor was examined without his identity and appearance being disclosed to the defence counsel present . It appears , furthermore , that the suspects had not been summoned to the hearing .

As has been set out in greater detail in the present decision , the use of anonymous testimony before a court is not allowed under NORP law , whether or not the witness is heard at or outside the main hearing in the case . The idea of allowing anonymous testimony in criminal cases has been rejected on several occasions by ORG authorities as well as by various committees , referring to the protection of the legal rights of the defendant . The fact that ORG has stated that the use of anonymous testimony is not in all situations contradictory to the LAW is therefore of no relevance in this connection . Moreover , it is not possible under the law to refrain from summoning a suspect to a taking of evidence of the kind at issue . Accordingly , there are reasons to criticise the public prosecutor as well as the judge on account of the procedure applied in regard to the taking of evidence .

Furthermore , the facts of the case have occasioned me to stress the importance of the public prosecutor familiarising him- or herself with the investigation material before a detention hearing in a way which enables him or her to present all the circumstances that may be of importance for the court ’s decision on the detention issue .

Finally , it may be questioned whether , following ORG decision to quash the detention order , there were really such new circumstances which could justify the public prosecutor ’s action of immediately taking a new decision to arrest .

Thus , to sum up , it has been established that the handling of the preliminary investigation has been deficient in several respects of central importance to the protection of the individual ’s legal rights . ”