Violation of Art. 7-1;Non-pecuniary damage - financial award;Costs and expenses partial award

On DATE security forces from the Şırnak central gendarmerie command apprehended the applicants . An arrest protocol of the same day stated that the applicants had been arrested on the grounds that they were wanted for the offences of aiding and sheltering members of the ORG ( Workers’ ORG ) terrorist organisation and acting as couriers in the organisation as well as supplying logistic support to the organisation . The applicants were then placed in custody .

On DATE CARDINAL officers interrogated the applicants at the Şırnak central gendarmerie command . During their interrogation the applicants both confessed that they had been involved in the ORG since DATE and that they had supplied food and money to ORG militants . The applicant PERSON stated that he had placed his son , PERSON , at the disposal of the ORG rather than paying them a levy . The applicant PERSON told the officers that he had been carrying provisions on mules to ORG militants and that he had last carried a battery for them in DATE .

The applicants were then confronted with a witness , PERSON , who had been arrested on charges of aiding and sheltering members of the ORG DATE . PERSON identified the applicants and stated that they had been supplying food and clothes to members of the ORG when he was in the organisation .

On DATE the Şırnak public prosecutor questioned the applicants in relation to their activities in the ORG . He first informed the applicants of the nature and cause of the accusations against them and then read out the statements they had made to the officers during their detention in custody . The applicants denied the accuracy of the statements read out by the public prosecutor . They alleged that they had no connection with the ORG and that they had never supplied provisions to members of the organisation . PERSON asserted that his son , PERSON , had been abducted by the ORG and had been forced to join the organisation , contrary to what was written down by the gendarme officers during his questioning at the PERSON gendarmerie command .

On DATE , DATE , the applicants were brought before ORG ( sulh ceza mahkemesi ) . Before the court the applicants denied their involvement in the ORG and claimed that they were innocent of the charges . The court ordered the applicants’ detention on remand .

On DATE the Şırnak public prosecutor issued a decision of non - jurisdiction and sent the investigation file to ORG at ORG .

On DATE ORG filed an indictment with ORG accusing the applicants of having assisted and given shelter to members of the ORG DATE . The public prosecutor alleged that the applicants had supplied food to members of the armed gang in a rural area . He further asserted that the applicant PERSON had stored food in his shop for members of the gang and that he had helped and sheltered them by means of his contacts with his son , currently an active militant in the gang . The public prosecutor relied on the applicants’ confessions at the Şırnak central gendarmerie command and the evidence given by the witness ORG , as well as the documents contained in the investigation file .

The public prosecutor requested that the applicants be punished in accordance with LAW and LAW ( Law no . CARDINAL of DATE , “ the DATE LAW ; see paragraph DATE below ) .

In the proceedings before ORG the applicants denied the statements they had made during their detention in custody . They both alleged that the gendarme officers had prepared those statements and that they had signed without reading them .

The applicants further maintained that they did not know of İkram ORG , with whom they had allegedly been confronted , since they had been kept blindfolded during their questioning while in custody . They asked the court to rule that they were innocent of the charges .

On DATE ORG convicted the applicants on account of their assistance to the ORG in DATE and DATE , sentenced them to DATE and QUANTITY months’ imprisonment and debarred them from public service for DATE . In assessing the penalty to be imposed , the court first found that a sentence of CARDINAL PERSON imprisonment would be appropriate under LAW ; it then applied LAW , according to which this sentence had to be increased by CARDINAL , that is , to DATE and CARDINAL months’ imprisonment ; finally the court applied LAW , thereby reducing the sentence by CARDINAL and thus decreasing the overall length to DATE and QUANTITY months’ imprisonment . The court held , in particular :

“ Offence : Aiding and sheltering members of the illegal ORG organisation

Date of the offence : DATE and DATE

Assessment of the evidence :

NORP The defendant PERSON

In his statements to the gendarmes , he said that he had been influenced by the propaganda spread by members of the ORG during their frequent visits to [ his ] village in DATE . Having seen that the organisation worked for them he had begun aiding [ the ORG ] . He had given his relative PERSON to the organisation rather than paying them a levy . He knew some of the members of the organisation with the code names PERSON , NORP , PERSON , PERSON and PERSON . He met them in the NORP region , at the FAC point , at the PERSON stream and on the outskirts of the GPE mountain . He knew a few of the warriors . [ He stated further ] that , on the instructions of the organisation and the instructions he had received from leaders of the groups during his meetings , he had carried provisions to them on his mules . Nobody had helped him to join the organisation . Members of the organisation had spread propaganda [ in favour of the ORG ] in the past , but they did not do it later as everybody knew the organisation . He also stated that some time before he had carried a battery and some provisions to a militant with the code name PERSON at the coalmine across from the PERSON [ gendarmerie ] station .

In his statements to the public prosecutor , he denied the [ accuracy of ] his statements to the gendarmes ; he claimed that he did not know a person with the code name PERSON , that the latter had not told the truth about him but had slandered him . He [ maintained ] that he had not carried provisions to [ members of ] the organisation . He denied that he had placed PERSON at the disposal of the ORG rather than paying them a levy . He alleged that he did not know of her whereabouts .

In his statements to ORG , he submitted that he had never supplied aid to the ORG terrorist organisation , that he had never carried provisions to [ ORG militants ] , that he had never met members of the [ ORG ] . [ He claimed ] that he is innocent of the charges .

In his statements to our court , the defendant denied the charges of aiding and sheltering [ members of ] the ORG . He alleged that he did not know of PERSON who was mentioned in the bill of indictment . He claimed that he is innocent of the charges .

According to the identification and confrontation protocol contained in dossier no . CARDINAL , when the defendant PERSON was shown to PERSON with the code name PERSON , the latter stated that he knew of PERSON . He submitted that [ PERSON ] used to come to see members of the organisation with the code names PERSON , PERSON and NORP and that he had often brought provisions on QUANTITY to the NORP region , the LOC mountain , the PERSON stream and to the ORG point . [ The witness ] further stated that he had shown [ to security forces ] the places where these provisions were stored . He claimed that the defendant [ PERSON ] was an important militant in the organisation .

When PERSON gave evidence as a witness before our court , he stated that the defendant had met senior members of the organisation , that he was a permanent member of the organisation and that he had frequently been in contact with [ a militant ] with the code name PERSON . [ He further stated ] that the defendant had supplied provisions such as food , drinks and weapons to the organisation .

It was established that the defendant had supplied provisions to members of the armed organisation who used to come to his village and that he had further supplied them provisions in rural areas . These acts of the defendant constitute the offence of knowingly aiding and sheltering members of an armed gang , [ namely ] the illegal NORP terrorist organisation . The court therefore concludes that there exist the actus reus and mens rea elements of the offence . His defence in this respect was rejected .

NORP The defendant PERSON

In his statements to the gendarmes he said that he had joined the ORG in DATE following the advice given by those in charge of the NORP region with the code names Amid and PERSON during their visit to his village . He first placed his son PERSON at the disposal of the organisation in order to help it . His son is currently an active armed militant in the organisation . He worked as a shopkeeper in the NORP village of the province of PERSON and later on he stopped working . Apart from his son with the code name Amid , he knew [ militants ] with the code names GPE , PERSON and PERSON as well as ORG and ORG . Since he worked as a shopkeeper , he allowed members of the organisation to take as many provisions as they wanted . Sometimes he was given money by members of the organisation with which he bought provisions such as flour , sugar and butter . He kept these provisions in his shop until he delivered them [ to the militants ] . He supplied aid to the organisation on the instructions of an armed militant in the organisation from his village with the code name PERSON . He gave packs of cigarettes to a member of the organisation with the code name PERSON . [ The defendant ] further stated that he had been given money by a member of the organisation with the code name PERSON who wanted him to buy CARDINAL bags of flour . He delivered [ to the organisation ] QUANTITY - loads of provisions such as flour , butter , sugar , lentils , socks and peşmerge clothing .

In his statements to the public prosecutor , he claimed that he had not helped members of the organisation and that he had not supplied any materials to the organisation . He alleged that he did not know of ORG who had the code name PERSON . He denied the latter ’s allegations and submitted that he had no links with the organisation .

In his statements to ORG , [ the defendant ] alleged that he had not given aid to the ORG terrorist organisation , that he had not bought provisions for members of the organisation and that he had not bought flour for them either . He denied the charges against him .

In his oral evidence before our court , [ the defendant ] denied the charges brought against him . He submitted that PERSON , who was mentioned in the bill of indictment , was his son . He had not seen him for DATE . He heard [ through some people ] that his son had died . He claimed that he had not given aid to members of the ORG by means of sheltering them or supplying them with provisions .

According to the identification and confrontation protocol contained in dossier no . CARDINAL , when the defendant PERSON was shown to PERSON with the code name PERSON , the latter stated that he knew of PERSON and that he had visited him at his home [ while ] he was working as a shopkeeper in the village . The team commander with the code name PERSON gave some money to PERSON and asked him to buy CARDINAL bags of flour . The defendant used a room at the back of his house and opposite his shop as a depot . The defendant supplied provisions to the organisation and brought CARDINAL pairs of shoes with the brand name of GPE . The defendant ’s son with the code name PERSON is an active militant in the organisation whose real name he did not know . PERSON further stated that he had been a team commander and that the defendant had brought them QUANTITY bags of sugar , flour , butter and lentils and QUANTITY - loads of provisions .

PERSON , in his capacity as a witness before our court , stated that the defendant had supplied provisions such as food , drink and arms to the organisation . He further stated that the defendant was an active militant in the organisation and that he had frequently seen the defendant while he was in the organisation .

It was established that the defendant had supplied provisions to members of the armed organisation who used to come to his village , the village of GPE , and that he had further supplied them provisions in rural areas . Further , the defendant stored provisions in his shop for members of the gang . He met members of the gang with the help of his son , PERSON , who is currently in the organisation and supplied them with the materials they needed . By these acts , the defendant is guilty of the offence of knowingly aiding and sheltering members of an armed gang , [ namely ] the illegal NORP terrorist organisation . The court therefore concludes that there exist the actus reus and mens rea elements of the offence . His defence in this respect was rejected .

The defendant ’s good conduct during the hearing was considered to be a mitigating circumstance . ”

On DATE the applicants lodged an appeal with ORG , challenging the judgment of ORG . In particular , they alleged that ORG had violated the principle of non - retrospective application of the criminal law since it had applied CARDINAL of the DATE Act to increase the basic penalty under LAW by half . The applicants submitted that they had been convicted of acts committed in DATE and DATE as indicated in the bill of indictment . They maintained that the witness , PERSON , who testified against them and who had been apprehended in DATE , had said that DATE and DATE were the dates of the offences . The applicants finally argued that the court should not have admitted the statements made to the gendarmes as evidence since they had retracted them , asserting that they had been extracted under duress .

On DATE ORG rejected the appeal . It upheld the cogency of ORG reasoning and its assessment of the evidence . ORG did not deal specifically with the ORG complaint relating to the retroactive application of the DATE Act to their case .

On CARDINAL DATE the applicants applied to ORG at ORG requesting the rectification of the decision of CARDINAL DATE . On DATE their request was dismissed by ORG on the grounds that ORG had examined all the points raised by the applicants and there was no other reason requiring the rectification of the decision .

Article CARDINAL of LAW provides :

“ Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not CARDINAL and not more than five years’ imprisonment ... ”

According to the Government , the act of assisting and giving shelter to members of an illegal organisation has the character of continuity and the offence is a continuing one .

NORP Under section CARDINAL of the CARDINAL Act , the offence defined in LAW is classified in the category of “ acts committed to further the purposes of terrorism ” .

Pursuant to section CARDINAL of the CARDINAL Act , the penalty laid down in LAW as punishment for the offence defined in LAW is increased by CARDINAL .

Article CARDINAL of LAW provides :

“ The punishment resulting from an investigation and conviction is determined by the crimes set forth in the indictment and can concern only those persons named in the indictment . ”


The applicant is a NORP national , born in DATE , and at the time of the introduction of the application was detained in the GPE penitentiary of GPE ( GPE ) . He is represented by PERSON , a lawyer practising in GPE .

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

A. Particular circumstances of the present case

On DATE , the applicant was placed in pre - trial detention on suspicion of having committed CARDINAL armed robberies . By summons of DATE , he was ordered to appear on DATE before ORG ( PERSON in PERSON ) of GPE . On DATE , ORG of GPE handed down its judgment . On DATE , the applicant filed an appeal with ORG ( FAC ) of GPE and GPE . The applicant 's case - file was received at ORG on DATE .

ORG of Justice started its examination of the applicant 's case on CARDINAL DATE , when it adjourned its examination , as the applicant wished to be represented by a new lawyer who had not studied the case - file . On DATE , a second hearing was held before ORG of Justice . It appeared that yet another lawyer had taken over the applicant 's case . The new lawyer sought an adjournment of the proceedings with a view to hearing a number of witnesses before the court , whose names the lawyer would communicate at some further point in time . ORG of Justice granted this request and adjourned its examination until DATE . By letter of CARDINAL DATE the defence submitted the names of CARDINAL witnesses , including PERSON , whom the defence wished to hear before ORG of Justice .

On DATE , CARDINAL witnesses appeared and were heard before ORG of Justice . After these CARDINAL witnesses had given evidence , the defence sought a further adjournment in order to hear CARDINAL of the CARDINAL witnesses who had not appeared , namely GPE and GPE , and a further witness ORG granted the request and adjourned its further examination until DATE .

On DATE , on the basis of an order of ORG , the witness GPE was heard before the investigating judge ( rechter - commissaris ) . Although PERSON had also been summoned to give evidence before the investigating judge , this witness failed to appear before the investigating judge .

At the hearing of DATE , the President of ORG stated that CARDINAL witnesses had been heard on DATE and that a further witness had been heard before the investigating judge . He further stated that it had been ordered that the witness GPE be forcibly brought ( medebrenging ) before ORG of Justice , but that this witness had not appeared . The defence persisted in its request that PERSON be heard . The prosecution objected to a further stay of the proceedings and argued that the applicant , who had been represented throughout the proceedings , had been provided with ample opportunity to have witnesses heard . After having deliberated , ORG of Justice decided to reject the request by the defence to hear GPE

In its judgment of DATE , ORG of Justice convicted the applicant of theft involving threat to use violence and use of violence having caused death , extortion and unlawful possession of a fire - arm , and sentenced him to DATE imprisonment with deduction of the time spent in pre - trial detention .

On DATE , the applicant filed an appeal in cassation with ORG ( PERSON ) , including a complaint of the length of the proceedings . On DATE , the applicant 's case - file was transmitted by ORG to ORG , where it arrived on DATE . ORG examined the applicant 's case for the first time on DATE .

In his conclusions , the Procurator General ( Procureur - Generaal ) to ORG advised ORG , inter alia , to reject the applicant 's complaint under LAW in respect of the delay between CARDINAL DATE and CARDINAL DATE . He noted that the applicant , who had been represented by a lawyer in the proceedings on appeal , had not raised this complaint in the proceedings before ORG of Justice and considered that this complaint could not be raised for the first time in cassation proceedings before ORG . He further considered that the delay was not of such a nature that ORG of Justice should ex officio have examined the compatibility of this delay with LAW .

Insofar as the applicant complained of the delay between DATE and the first examination of the applicant 's appeal in cassation , the Procurator General advised ORG to reject this complaint on the basis of a finding that this delay was not so long that the applicant 's right to a hearing within a reasonable time had been violated . The Procurator General further considered that the total length of the proceedings against the applicant , i.e. DATE , had also not exceeded a reasonable time .

ORG rejected the applicant 's appeal in cassation by judgment of DATE . Referring to LAW ( Wet op de Rechterlijke Organisatie ) , ORG further rejected the applicant 's complaint of the length of proceedings as not prompting a determination of legal issues in the interest of legal unity and development .

B. Relevant domestic law and practice

Pursuant to LAW , hereinafter referred to as " former ORG " ) , as in force at the relevant time , a judgment must contain reasons and express the punishable fact including the circumstances which may lead to a mitigated or aggravated sentence . It must further contain findings on what facts have been found proven or not , the legal qualification of the facts found proven , the question of the accused person 's guilt and the application of the statutory defined punishment . Pursuant to LAW former ORG , a judgment must be signed by the judge , who has decided the case , and the registrar within TIME after its delivery . Although the former ORG contains no explicit obligation that a judgment should contain the means of evidence on which a conviction is based , in practice such means were set out in judgments leading to a conviction .

However , since DATE pursuant to LAW has to deliver the judgment within DATE following the closure of the trial , it was not unusual at the relevant time that initially an abridged judgment would be drafted in cases where the accused was convicted . Such a judgment does not account for the means of evidence on which the conviction is based . A complete version of the judgment was not prepared unless the convicted person or the public prosecutor lodged an appeal against the judgment . In that case the means of evidence were included in the judgment and the case - file , including the complete judgment , was transmitted to the appeal court .

In a judgment of DATE ( nr . CARDINAL.CARDINAL A ) , concerning an appeal in cassation against a judgment of DATE of ORG of GPE and GPE in which a complaint was raised that the period of time which had elapsed DATE on which ORG had handed down its judgment and the first examination of the appeal in cassation constituted a delay contrary to the reasonable time requirement under LAW , ORG noted that the appeal in cassation had been filed on DATE , that the pertaining case - file had been received by ORG on DATE and that the appeal in cassation had been examined for the first time on DATE .

ORG considered that no special circumstances had appeared which could justify DATE that had elapsed DATE and DATE . It concluded that , therefore , the reasonable time requirement under LAW had not been met and that , on this basis , the sentence imposed on the applicant should be mitigated . ORG quashed the determination of the applicant 's sentence and referred the case back to ORG of Justice of GPE and GPE for a new determination of the applicant 's sentence .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 6-1+6-3-c;Violation of Art. 34;Non-pecuniary damage - award

Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and resided before his arrest in the village of GPE , in GPE .

On DATE the applicant was arrested along with several other village residents and placed in the temporary detention centre of the NORP police station ( ORG , “ the police station ” ) . He was allegedly beaten and pressurised to confess to the murder of a certain Mr NORP in the village of GPE . The applicant remained in detention for DATE ; the legal basis for his detention remains unclear . After DATE of detention he was released .

On DATE the applicant was again arrested and taken to the police station . On DATE he was questioned by ORG , an investigator at the NORP district prosecutor 's office ( “ the district prosecutor 's office ” ) , ORG , a senior operational officer of ORG , Ya . PERSON , the deputy head of the police station , and GPE , head of the criminal police . According to the applicant , throughout the interview they put pressure on him to confess to NORP 's murder . In particular , PERSON explained to him in detail why he had killed D , saying that the applicant had committed the crime because he had found his daughter and NORP making love . The applicant denied having murdered NORP

According to the ORG , on DATE Kh . A. formally explained to the applicant the rights of an accused , including the right to free legal assistance , and assigned a certain Ur . to represent him . A copy of the related record produced by the ORG is signed by ORG and does not bear the signature of either the applicant or PERSON .

On DATE the applicant retained private defence counsel , PERSON , to represent him . It appears that on DATE and on DATE she visited him in the police station .

On DATE Kh . A. , who was in charge of the investigation into NORP 's murder , authorised the applicant 's detention on remand . The applicant was accused of murdering NORP , a friend of the applicant 's daughter , on TIME DATE .

NORP In a CARDINAL - page typed and undated attachment to the supervisory review application lodged with ORG of GPE in DATE , the applicant presented the following description of the ill - treatment to which he had allegedly been subjected on CARDINAL - CARDINAL September CARDINAL . His submissions may be summarised as follows .

At TIME on DATE the applicant was brought to an office in the NORP police station where FAC and Ya . PERSON were already present . Kh . A. was not there . ORG . and Ya . PERSON pressurised the applicant to write a voluntary “ confession statement ” ( явка с повинной ) and promised in exchange to ask the investigator to reclassify the applicant 's offence as involuntary manslaughter in a fit of passion . The applicant did not admit to being guilty and refused to make any statements to that effect .

Ya . PERSON and PERSON started beating the applicant . They hit his head against the wall , twisted his arms , punched his neck and kicked him in the groin . The beatings alternated with admonitions to him to confess . On CARDINAL occasions the applicant was placed with his hands against the wall , legs wide apart , and ORG hit his ankles so that the applicant 's legs slid apart and the applicant fell . The applicant refused to confess and told the police officers that he would not tell them anything in the absence of his lawyer , which triggered a new series of beatings . The applicant was then taken back to his cell for a respite .

At TIME . , deputy head of the criminal police , took the applicant from his cell to GPE 's office on the second floor . Officers Ya . PERSON and PERSON were in the room and R.Kh . stayed outside . The applicant was shown a confession statement written by someone else and was ordered to confess too . After he refused , police officers switched on the television and started punching him in the face and kicking his ankles . This lasted for TIME , then ORG , using the remote control unit , set the television to switch on in TIME ; this signalled an TIME - long pause in the beatings . The applicant was handcuffed and taken back to the cell by R.Kh . who had waited outside .

TIME the applicant was taken back to the office . This time GPE joined ORG and GPE , while R.Kh . stayed outside . The applicant refused to write a confession statement . The officers then turned the applicant to face the wall , took a truncheon out of a cupboard , pulled the applicant 's trousers down and threatened to rape the applicant with the truncheon . Once the applicant lowered his arms to pull his trousers up , he received a series of truncheon blows to his head , back and legs . He fell and broke his lip against the cupboard . After a series of punches and kicks the officers set the timer for TIME and GPE placed the applicant in the cell , having hit his head against the cell door .

When the applicant was brought back again , the officers were drinking beer and offered one to the applicant . The applicant had a drink and then he was sent back to the cell to “ think about [ his ] confession ” .

Later on , the applicant was taken out of the cell several times and led to different offices where Ya . PERSON , GPE , ORG . , taking turns , tortured him in various ways . The applicant 's handcuffed hands were twisted so that he strangled himself , and he received strong blows to his left ear . In particular , ORG put his hand on the applicant 's right ear and with another hand started punching him , with force , on the left ear . After the third punch the applicant felt liquid flowing out of his left ear .

At TIME on DATE police officers escorted the applicant to the investigator 's office in the centre and told him to write down what he had been doing on DATE . It appears that the applicant did something wrong and the officers stuffed the “ spoiled ” sheet of paper in his mouth and twisted his limbs in all directions .

Finally , the applicant gave in and wrote a confession statement along the lines described to him by ORG during the first interrogation on DATE . The officers read the statement and continued to beat him to get a more detailed account . The applicant wrote that at QUANTITY he had gone out to look for his daughter and discovered her having sex with a man , his daughter lying on the ground under the man . The applicant had taken a log , hit the man on the head and had then sent his daughter back home . The applicant had not been able to hide the body immediately because his scooter had been broken .

On DATE at TIME the applicant was escorted to the cell . On DATE at TIME Ya . PERSON and PERSON woke the applicant up and told him that he would be transported to a detention facility in GPE . He objected to the trip ; his right ear was blocked and his left ear oozed blood and other fluids . At TIME called the applicant and asked him whether he was ready to testify . The applicant refused to speak without his counsel , PERSON The investigator told the applicant that it was complicated to find the applicant 's lawyer because it was DATE . The applicant was escorted back to the cell .

On DATE the applicant stayed in the cell .

On DATE GPE , ORG and the director of the temporary detention centre took the applicant in a private car , a light coloured GPE , to remand centre SI-CARDINAL/CARDINAL of PERSON . The applicant was not examined by a medical officer and was placed directly in cell no . DATE , from which he was transferred to cell no . DATE . He remained there for DATE . DATE he was placed in cell no . CARDINAL . According to the applicant , he was taken to the remand centre in a private car in order to hide his injuries .

NORP The applicant 's description also gave further details on the layout of the rooms , doors , furniture and objects in the police station where the ill - treatment allegedly took place .

In his application form to ORG the applicant gave a similar , albeit more concise , description of the treatment allegedly inflicted on him in the police station .

The copy of the applicant 's medical record produced by the Government reads , in so far as relevant :

“ ... DATE ] . Complaints about pain in the left acoustic meatus ...

Cutaneous coverings : clean .

Underwent delousing .

State [ of health ] satisfactory .

Ds[diagnosis ] : acute chronic otitis on the left [ side ] [ обострение хронического отита слева ] ...

DATE . ... The left ear does not hear from a distance of CARDINAL m[etres ] .

Ds : deafness in the left ear . ”

According to forensic report no . CARDINAL dated DATE and issued following investigator PERSON A. 's request for the applicant 's medical examination ( see below ) , on DATE expert PERSON examined the applicant in the presence of TIME with a view to establishing whether the applicant had any injuries . The report , in its relevant part , reads :

“ ... present during the examination : convoy [ officer ] DATE ..

Examination started DATE .

Examination finished DATE .

Circumstances of the case : ... from the decision ordering the examination it follows that [ the applicant ] submitted that police officers had applied physical force to him .

Complaints : about pain in the left ear .

Objectively : at the time of examination no bodily injuries established ....

Conclusions

At the time of examination no bodily injuries were established , thus it is impossible to comment on the degree of damage to health ... ”

On DATE the applicant 's lawyer complained to the district prosecutor 's office that the applicant had not received treatment for pain in his left ear . On the following day the district prosecutor ordered the applicant 's immediate transfer to the NORP town hospital for examination by an otolaryngologist and eventual treatment .

On DATE the applicant 's lawyer requested the town hospital to provide her with all relevant information and medical records in connection with the treatment of the applicant 's allegedly broken eardrum , with a view to submitting those documents to the court . In particular , she asked the hospital to indicate the exact diagnosis , the treatment received and the consequences of the disease for the applicant 's health .

In an undated reply the hospital 's head doctor informed the applicant 's lawyer that the applicant had been examined by an otolaryngologist who had diagnosed him with acute suppurative left - side “ tubotympo - palpitis ” [ туботимпопальпит ] and otitis media . The letter further stated that in order to provide further information , in particular , on the duration of the treatment and the consequences of the diseases for the applicant 's health , he needed to be examined by the otolaryngologist in person .

According to a medical certificate of DATE from the LOC village hospital , the applicant did not apply to the hospital for medical assistance in DATE .

A certificate from the head of colony UYe-CARDINAL/CARDINAL Mr M. , dated DATE and compiled on the basis of the applicant 's medical file , in so far as relevant , reads :

“ Upon admission to facility [ ORG in ORG ] on DATE [ the applicant ] was examined by the duty medical officer , PERSON . , to whom the former complained about pain in his left ear ; according to a record in the [ applicant 's ] medical file , he was diagnosed with acute chronic otitis on the left [ side ] ... ; at the time of the examination cutaneous covering were clean and the state of health satisfactory . [ The applicant 's name ] does not appear at the relevant period in the medical records , the log of injuries and the log on accidents and crimes . ”

The applicant submitted a written statement by ORG , dated DATE , which reads :

“ ... I , I.R [ ] . , was held in SI-CARDINAL/CARDINAL under investigation , when on DATE [ the applicant ] was placed in my cell . On his face were visible cut lips and a bruise under the left eye ; the left ear was swollen and oozed blood . I asked [ the applicant ] what had happened to him . He answered that officers of the NORP police station had obtained his confession in that way . [ The applicant ] undressed and showed bruises on his body . There were many bruises on his body , on the front and back . In sum , he had been beaten up very severely . From a conversation with [ the applicant ] I understood that he heard almost nothing because his left ear had been damaged .

Until this moment nobody asked me about those events . However , since [ the applicant ] has asked me now , I consider it my duty to confirm that [ the applicant ] had traces of beatings which were visible to the naked eye . I can confirm this statement afterwards .

Written in my own hand .

[ Signature ] ”

A written statement of DATE by ORG , addressed to ORG of GPE and produced by the applicant , reads :

“ ... In DATE I , ORG [ ] , was held under investigation in SI-CARDINAL/CARDINAL in cell no . CARDINAL . I remember that on DATE [ the applicant ] was put in our cell . He had been beaten up , which was visible to the naked eye . NORP , who was also present , asked him what had occurred to him . [ The applicant ] answered that this was the way confessions were obtained in the NORP police station . His lip was cut , his left ear oozed matter , he had a bruise under the left eye . Then he showed bruises on his body and his legs .

Written in my own hand .

[ Signature ] . ”

In her complaint to the district prosecutor 's office about the applicant 's alleged ill - treatment , dated DATE ( see paragraph CARDINAL below ) , PERSON submitted :

“ ... On DATE ... I ... went to remand centre SI-CARDINAL/CARDINAL in PERSON and saw injuries and traces of torture on [ the applicant ] .

Bodily injuries : abrasions between the right eye and the ear , below the lower lip on the right ; left ear oozes liquid with blood ; a bruise of QUANTITY in the area of the solar plexus ; bruising and swelling to the left foot ; bloody abrasion at the right knee ; marks from handcuffs ; a bruise underneath the right eye ; a lip cut / split on the inside ... ”

In her complaint to ORG dated DATE ( see CARDINAL below ) the applicant 's lawyer mentioned the following injuries :

“ ... on DATE I saw abrasions on the [ applicant 's ] face , a cut inside lip , a bruise under the right eye , bruising and swelling on the left foot , a huge bruise in the abdomen area , a bruise on the back in the kidney area , a bloody abrasion on the right knee ; he also complained that his eardrum had been broken , that blood with matter and liquid is flowing constantly , and that all muscles , ligaments and bones hurt because he had been subjected to the so - called “ lastochka ” ( “ swallow ” ) treatment – having placed him on his abdomen , [ they ] pulled his hands and legs towards the spine . ”

According to a written statement by the applicant 's brother , in DATE he visited the applicant for DATE in colony UYe-CARDINAL/CARDINAL in GPE . The applicant complained to him about recurring pain in his right collarbone , deafness in the left ear , and dull pain in the kidney area . The applicant associated those health problems with his beatings at the NORP police station in DATE . According to the applicant 's brother , he saw a bump of a size of a hazelnut on the applicant 's collarbone . The collarbone frequently ached at TIME and when the weather changed . The applicant could not hear with his left ear and had recurrent purulent discharge from it . He also complained about recurring pain in his kidneys and , according to the applicant 's brother , went to the toilet frequently .

On DATE the applicant , questioned by ORG in the presence of his lawyer , stated that he had not murdered NORP and that his confession had been obtained from him under duress by officer PERSON , “ a police officer from GPE , “ a police major ” and “ a chubby police officer ” .

On DATE the applicant 's lawyer complained to the district prosecutor 's office , requesting that a criminal case for torture be opened against GPE , Ya . PERSON and CARDINAL other unidentified police officers . She indicated that on seeing the applicant on DATE she had noticed numerous injuries on his body and described them in detail ( see paragraph CARDINAL above ) . She also submitted that the applicant had been tortured by pulling his hands and feet back towards the spine . She stressed that the police officers had intentionally taken the applicant to remand prison GPE in ORG on DATE to hide his injuries and to hide her client from her and that the investigator in the murder case had colluded with the perpetrators in hindering her access to her client by pretending that on DATE the applicant had been at an “ on - site verification of his statements ” in order to make her believe that he was still in GPE and not in PERSON . Lastly , she requested a medical examination of the applicant .

On DATE the applicant 's lawyer asked ORG ( “ the ORG ” ) to release the applicant . In her complaint she also referred to his alleged ill - treatment in police custody , reiterating in detail the injuries she had noticed on him on DATE . She emphasised that the police officers had hidden her client from her and on DATE had taken him to SI-CARDINAL in PERSON where no medical officer had examined him upon admission . She submitted that although on DATE prosecutor PERSON had ordered the applicant 's medical examination , she had serious doubts about its outcome because forensic expert PERSON was on holiday and thus the examination would be carried out in PERSON , whilst police officers from the NORP police station had already visited the applicant in the remand prison in PERSON and had threatened him with “ grave complications ” if he “ misbehaved ” .

On an unspecified date the district prosecutor 's office launched an inquiry into the applicant 's allegations of ill - treatment . In the course of the inquiry the district prosecutor solicited written explanations from officers GPE , Ya . PERSON , R.Kh . and ORG

In a written explanation to the district prosecutor , dated DATE , Ya . PERSON submitted that on DATE he and “ other officers ” had conducted “ a conversation ” with the applicant at the temporary detention centre . During the conversation the applicant wrote a confession , describing in detail the circumstances of the murder committed by him .

In his written statement dated DATE GPE submitted that on DATE he and other officers had “ a conversation ” with the applicant in the isolation ward of the police station , in the course of which the applicant had voluntarily written a confession . According to GPE , the police officers had not gone to the isolation ward on DATE and had not “ worked with the applicant ” on that date .

In an undated written statement to the district prosecutor ORG submitted that on DATE , during a conversation with the applicant in the isolation ward , the latter had written a confession after ORG and other police officers had presented him with “ certain information ” .

In his written explanation dated DATE R.Kh . submitted that he had not “ worked with the applicant ” and had not taken a confession statement from him . He stated that he had had dealings with the applicant earlier , when the latter had been arrested in connection with an administrative offence .

All of the police officers denied having used “ unlawful methods ” or torture against the applicant and claimed that his allegations had been libellous .

By a decision of DATE the deputy district prosecutor refused to institute criminal proceedings against the police officers who had allegedly ill - treated the applicant . The decision read as follows :

“ On DATE lawyer PERSON complained to the NORP district prosecutor 's office that from TIME on DATE until TIME on DATE her client had been beaten up by police officers in the premises of the NORP police station .

The inquiry established that [ the applicant ] had , indeed , been held in the NORP police station as an arrestee from DATE . However , it has not been established that physical violence was applied to him . Despite [ the applicant 's ] submission that police officers had severely beaten him on practically all parts of his body , the officers questioned [ in that connection ] submitted that they had not applied any violence to him ; moreover , according to the forensic expert 's report of DATE , no injuries had been found on [ the applicant ] .

Thus , [ the applicant 's ] allegations about his beating by police officers raise serious doubts as to their truthfulness . ”

Lastly , it was stated that the decision was to be notified to the applicant and that he was to be informed of his right to appeal against it to a higher - ranking prosecutor or a district court .

By a letter of CARDINAL DATE the deputy district prosecutor replied to the applicant 's lawyer that he had examined her complaint about the applicant 's alleged ill - treatment and that on DATE he had refused to institute criminal proceedings in that connection . The letter further stated that it was open to the applicant to challenge the refusal before a higher - ranking prosecutor or a district court .

On an unspecified date the applicant 's lawyer lodged with prosecutor of GPE a further complaint about the applicant 's ill - treatment and the continuing threats to him by officers ORG and GPE

On DATE the applicant 's lawyer complained to the prosecutor of GPE about various violations of the applicant 's rights at the pre - trial stage , reiterating the ill - treatment complaint . She further claimed that the forensic expert who had failed to discover any physical injuries on the applicant 's body during the examination on DATE had committed a criminal offence because , apart from the obviously visible physical injuries , the applicant 's kidneys and bladder had also been damaged during the beatings . Lastly , she mentioned that although she had asked the district prosecutor for a correct medical examination of the applicant , she had not succeeded in obtaining this .

According to the applicant 's counsel , on DATE she obtained permission from the head of the NORP police station to visit the applicant . However , after a phone call by TIME , she was refused access to her client . On DATE she complained about that situation to the district prosecutor 's office .

Following PERSON 's complaint , the district prosecutor 's office questioned convoy officer Zh . PERSON and officer Ya . PERSON The former submitted in an undated written explanation that at TIME on DATE PERSON had come to the temporary detention centre and picked a permission form to visit the applicant . The applicant being with investigator PERSON . PERSON and other convoy officers refused to allow her to visit her client without the investigator 's permission . PERSON then went to see the investigator and did not come back . In his undated written explanation Ya . PERSON denied having refused the applicant 's lawyer access to her client and submitted that since the applicant was under the district prosecutor 's office responsibility , his lawyer should have obtained Kh . A. 's permission to visit her client .

On DATE the deputy district prosecutor responded to the applicant 's lawyer , stating that he had examined the matter and that no irregularities had been observed .

In her complaint of DATE to the prosecutor of GPE the applicant 's lawyer claimed that the hindrance of her visit to the applicant had breached his defence rights . In particular , she submitted as follows :

“ ... On DATE ] I personally went to the prosecutor 's office to find investigator PERSON , because I was not allowed to visit [ the applicant ] without his permission .

The prosecutor exclaimed that he himself was looking for Kh . A ... I told [ the prosecutor ] that I was not allowed to see my client in the temporary detention centre but no reaction followed . Moreover , the deputy prosecutor who received my related complaint on DATE disregarded it and reacted to it only on DATE . [ In his reply ] it is alleged that I went to the temporary detention centre at TIME and then left . However , I have a record to the effect that head of the police authorised me to visit my client ; at the same time , while I was already in the temporary detention centre , [ convoy officers ] refused to escort [ the applicant ] to me , referring to the lack of permission from investigator ORG A. However , there is a record that the investigator had a “ conversation ” with [ the applicant ] from TIME on DATE . During that period , on TIME DATE , from TIME , [ the applicant ] was severely beaten up by officers Ya . PERSON , GPE , R.Kh . and ORG , an officer of ORG , the latter having applied the most sophisticated methods ” .

There is no indication that the applicant 's lawyer received any reply to her complaint .

On an unspecified date the applicant 's case was sent for trial to ORG of GPE ( “ the ORG ” ) .

According to the hearing transcript , at the first hearing on DATE the applicant 's lawyer complained that the applicant 's confession had been obtained under duress . She further averred that she had been refused access to her client on DATE and that his confession had been obtained in her absence . She requested the court , among other things , to obtain from the prosecutor 's office the case file concerning the inquiry into the applicant 's alleged ill - treatment ; to question the police officers allegedly involved in the applicant 's beatings and the expert who had examined the him on DATE , arguing that it had hardly been possible that he had found no traces of ill - treatment whereas she had seen them on the applicant ; to obtain from the police station the detainees ' interrogation log ; to establish how many times the applicant had been brought for questioning from his cell on DATE , and to obtain from remand centre SI-CARDINAL/CARDINAL documents concerning the applicant 's medical examination upon admission there . The court granted the request in respect of the inquiry file , the questioning of the police officers and the interrogation log and dismissed the remainder .

At trial the applicant pleaded not guilty . He denied having murdered NORP and claimed that his confession statement had been given as a result of ill - treatment . He submitted that from TIME on DATE to TIME on DATE officers GPE , Ya . PERSON and “ a police officer from GPE had beaten him up and had stuffed his mouth with paper so that his screaming would not be heard . On DATE he had been brought to remand prison GPE in ORG where he had not been examined by a medical officer . On DATE the applicant was brought for a medical examination but the expert had compiled his report on the basis of written documents , without examining him .

The applicant 's underage daughter also revoked her statements given on DATE in the presence of PERSON , a child - protection inspector of the NORP education department . On DATE she had testified that on TIME they had been sitting together with NORP on a beam . She had been sitting on his nap and they were having sex . When her father had suddenly appeared , she had pretended that she had been simply sitting near NORP Having seen her , her father had chased her home and she left . On DATE her father had been nervous and mentioned to her mother that apparently a corpse had been discovered . At trial PERSON testified before the court that the applicant 's daughter had given her testimony voluntarily , without any pressure from the investigator . Following a court - ordered handwriting examination , the expert confirmed that the signature on the applicant 's daughter 's interview transcripts was hers .

The court heard CARDINAL persons . Witness N. , who gave a statement opposing the prosecution 's version of the events , in that she stated that she had seen a private car near the crime scene on TIME of the murder , claimed that a “ police officer from LOC had threatened that if she gave statements exculpating the applicant , she would be thrown in jail . PERSON . , who claimed to have seen a group of persons at the crime scene on TIME of the murder , throwing something on the ground , and a car parked nearby , submitted that she had been summoned to the police station and that a certain officer PERSON asked her whether the applicant 's wife had bribed her for her deposition . PERSON . also claimed that she had been offered money if she was silent about what she had seen on TIME of the murder . Officer PERSON confirmed that on DATE , that is on DATE after the discovery of NORP 's corpse , the crime scene had been cleaned on the order of the village administration .

The court interviewed officers GPE , R.Kh . and ORG PERSON stated that on DATE he had been on leave and had not been present during the applicant 's questioning . PERSON stated as follows :

“ ... I was not present when [ the applicant ] was questioned ; I only joined the others when they were questioning him ...

I saw [ the applicant ] ; talked to him about NORP 's murder ...

I do n't remember whether I visited him in the temporary detention centre . Probably , I did visit him and talk to him ... ”

It appears that R.Kh . did not deny having questioned the applicant and that the court did not question Ya . PERSON as a witness . All of the police officers flatly denied having used any “ unlawful methods ” on the applicant .

In her final statement the applicant 's lawyer drew the court 's attention to various discrepancies in the prosecution case . She also stressed that the police officers accused by the applicant of ill - treatment had lied : whilst in court they had claimed that on DATE they had not interviewed the applicant and that there were no records in the relevant logs about them taking him from his cell for questioning , yet in their statements in the course of the prosecutor 's inquiry they had expressly submitted that they had talked to the applicant on CARDINAL September CARDINAL and that he had confessed to them on DATE . She stated that the applicant had not been examined by a medical officer on his transfer to remand prison GPE in ORG , although he had complained about pain in his ear and had had bruises on his face . Furthermore , investigator PERSON . A. and expert PERSON , who had examined the applicant , had previously worked together in PERSON and were friends ; consequently , despite the fact that the latter had seen the injuries , he had compiled his report as indicated to him by PERSON . A.

By a judgment of DATE ORG found the applicant guilty of NORP 's murder , referring , in the first place , to his confession , which it found to be corroborated by the pre - trial statement of his daughter , statements by witnesses and the forensic evidence . In particular , the court referred to a statement of PERSON , who mentioned having heard the voices of NORP and the applicant 's daughter close to the crime scene on TIME of the murder ; a statement of PERSON , who testified to having seen NORP and the applicant 's daughter kissing on TIME , and the victim 's post mortem report establishing several injuries to his head .

The court dismissed the applicant 's allegation that his confession had been obtained as a result of ill - treatment , referring to the statements by police officers GPE , Ya . PERSON and PERSON and expert report no . CARDINAL , which had not recorded any injuries on the applicant 's body .

The trial court did not address the applicant 's argument that his confession had not only been obtained under duress but also in the absence of his lawyer . The applicant was sentenced to DATE imprisonment .

DATE . The applicant appealed against the conviction . In his statement of appeal he submitted , in particular , that his confession statement was inadmissible as obtained under duress and in the absence of a counsel . He submitted that officers GPE , Ya . PERSON and PERSON had committed perjury before the trial court . Furthermore , he claimed that he had been secretly transferred to remand centre SI-CARDINAL/CARDINAL where he had not been properly examined by a doctor in order to hide the marks of beatings . The applicant 's transfer had permitted the police officers to deprive him of access to counsel and to delay his medical examination . Moreover , the expert who had performed his examination on DATE had been on friendly terms with the investigator and had issued the expert opinion which the latter had needed .

On DATE ORG dismissed the appeal . As regards the use in evidence of the applicant 's confession allegedly obtained under duress , ORG held that the investigators and the trial court had carefully examined the applicant 's allegations and had correctly dismissed them as unfounded . In particular , the trial court had questioned the police officers , who had denied any use of violence against the applicant , and the expert had concluded that he had not had any injuries . The confession had been written by the applicant in his own hand ; he had in his own hand certified that it had been given without any physical or psychological pressure . The appellate court 's judgment was silent on the applicant 's complaint that his confession had been obtained in the absence of his lawyer .

On DATE the ORG gave notice of the application to the respondent Government .

On DATE the ORG received a faxed letter from the applicant 's brother ( who had initially represented the applicant before ORG ) in which he indicated that the applicant had been intimidated and forced to withdraw his application . In a letter of DATE the applicant 's brother provided further details . His description ran as follows :

“ ... I have to inform you about a conversation between [ my brother ] and a Captain of the ORG who did not show his documents and did not identify himself . It took place on DATE . The Captain first asked [ my brother ] and then ordered [ him ] to describe in writing the events of DATE . He said : ' You must write it in the way I want you to . [ My brother ] answered : ' I wo n't write or sign anything without a lawyer . Captain : ' I do n't care about you or your lawyer ; it will be as I say . You are pawns . I will arrange it so that you die here in DATE but you will give me the statement I want ' .

We are very concerned CARDINAL issue . Why did the representatives [ to ORG ] not come from GPE themselves , and why did a Captain show up and ask [ the applicant ] to write [ an explanation ] ? ”

On DATE the ORG requested comments from the respondent Government .

On DATE the Government informed the ORG that on DATE Captain PERSON , an employee of ORG in GPE ( “ the regional department of the FSES ” ) , had had a “ conversation ” with the applicant “ in order to clarify the circumstances that had given rise to his application to the ORG ” . Without providing any further details , the Government enclosed a copy of applicant 's written explanation of DATE , addressed to the head of the regional department of the ORG .

The explanation , in so far as relevant , reads :

“ I arrived in facility ORG in ORG on [ illegible ] DATE . I arrived in IK-CARDINAL [ UE CARDINAL/CARDINAL ] in DATE and have been serving my sentence in brigade no . CARDINAL , I am working as a welder .... I have no complaints about officers of the [ prison ] administration and of the penitentiary system of GPE . I was not subjected to physical or psychological pressure by penitentiary officers of GPE . ”

On DATE the applicant retained lawyers of ORG ( EHRAC ) to represent him before the ORG .

DATE . It appears that on DATE the applicant 's wife concluded an agreement with PERSON . PERSON , a lawyer , under which the latter was to visit the applicant in prison and to interview him about his conversation with Captain PERSON

On DATE the applicant 's representatives forwarded to the ORG the applicant 's written statement of DATE which , in so far as relevant , reads :

“ .. On DATE , after lunch , I was called for a conversation to an office located in the industrial zone of the furniture department where I was working . The person present in the office introduced himself as Captain PERSON ( I do n't remember his name or patronymic ) . From our conversation I realised that he was aware of my application to ORG . He explained his presence by saying that he could help me ... He said that if I was lucky , my case would be examined and he would possibly come back for a conversation with me .

I told him in brief about the essence of my complaint [ to GPE ] , in particular , that I had been ill - treated on DATE at the NORP police station by QUANTITY police officers . I specified that I had been brought to GPE in ORG in a private car and that I had been admitted there while the head of the facility had been absent ( at lunch ) [ and ] that no medical examination had been conducted .

PERSON wanted me to write down that I had undergone a medical examination on admission to SI-CARDINAL in ORG . I told him that that was not true and pushed away the piece of paper . He did not like it . He started threatening me , saying “ I will make life hell for you ! ” I answered that I would not write anything along the lines indicated by him and wrote down that I had not killed anyone to which he said : “ I do n't need that ” . He destroyed the first piece of paper , which I had drafted to his dictation , and kept the second . ...

During our conversation which lasted for TIME [ PERSON ] asked me when I had been arrested , whether I had been beaten up in GPE in ORG , [ and ] whether I had been brought to GPE and beaten there . He was mostly interested in the time spent by me in GPE in ORG because I had not been examined there , although I had numerous visible injuries and I had been hidden from my counsel at that time . I have not seen [ PERSON ] since our conversation .

The applicant 's statement went on to mention that on DATE he was visited by a certain lieutenant colonel and a lieutenant from the regional office of the ORG . They asked him how he had managed to send the application to ORG and about its contents , in particular , the circumstances of his alleged ill - treatment and whether he had been examined by a medical officer in GPE . The applicant provided the relevant explanations in writing . They concerned only the beatings in DATE and contained no complaints about detention facility ORG . After the departure of the CARDINAL persons the applicant had to quit his job and was transferred to basement no . CARDINAL , where conditions were worse than in other parts of the colony .

According to the applicant 's statement of DATE , on DATE he received a further visit by a prosecutor , for whom he also wrote an explanation concerning the circumstances of his ill - treatment at the NORP police station . The prosecutor reassured him that he would examine the matter .

On DATE the applicant received yet another visit by a prosecutor who did not introduce himself . He interviewed the applicant about the same events as his previous visitors .

Lastly , the applicant noted that he felt uncomfortable in connection with his application to the ORG and feared that it would have repercussions on his further stay in facility ORG .

An undated written statement by PERSON . PERSON produced by the applicant 's representatives , in so far as relevant , reads as follows :

“ I , PERSON . PERSON , lawyer of ORG , on DATE concluded an agreement with [ the applicant 's wife ] with a view to visiting her husband in colony FAC .

On DATE from TIME I had a conversation with [ the applicant ] , during which I asked him ... about intimidation in connection with his application [ to the ORG ] .

During our conversation [ the applicant ] behaved in a constrained manner , asking me not to refer to many circumstances in my explanation ; sometimes he began whispering . He explained his behaviour by the presence ( during the whole of our conversation ) of CARDINAL officers from the internal security department who did not conceal their interest in our conversation . ... Bearing this in mind I consider it necessary to clarify and supplement his written statement by the details which he did not include therein .

During the conversation [ the applicant ] explained that PERSON , who had visited him on DATE , interviewed him about the reason for his application to ORG , to which [ the applicant ] replied that the thrust of his complaint was that on DATE he had been severely beaten by officers of the NORP police station . During the beating he had been instructed to write a confession , which he had refused to do , and the beatings had continued .

PERSON expressed doubts that the police officers had acted in that way , saying that they could not have inflicted bodily injuries on [ the applicant ] . PERSON had also asked him in what condition he had been brought to GPE in ORG . [ The applicant ] explained that he had had numerous bodily injuries ... The officers of remand centre GPE , in particular the doctors , had seen his injuries but , following instructions from certain persons , had intentionally failed to examine him and had not opened a medical record in respect of the applicant . PERSON replied that that was impossible because [ the applicant 's ] medical record did not refer to any bodily injuries . [ The applicant ] explained that he had not been examined on admission to GPE and at that point PERSON became angry and started pressuring [ the applicant ] , saying that he should not write about it .

During the conversation with PERSON , [ the applicant ] started compiling the first explanation . PERSON had been instructing him what to write , in particular that the police officers had not beaten him up and that he had been examined on admission to GPE in ORG . Having heard that , [ the applicant ] pushed away the papers , saying that what PERSON had been telling him to write was not true . PERSON had not liked [ the applicant 's ] behaviour and started threatening him with reprisals , saying that he would make life hell for him and that it would happen soon . However , [ the applicant ] had said that he would not sign the explanation along the lines indicated by PERSON and would write his own , which he had done , adding at the end of the explanation that he had not killed anyone . PERSON again threatened [ the applicant ] with reprisals , after which he had to take the last explanation . ...

[ The applicant ] explained ... that after his withdrawal from work he had been feeling lonely , offended and cut off from communication with other persons . Even when he had later been re - admitted to work , he had been still stressed by the fear of losing it again ... ”

In a letter to his relatives , dated DATE , a copy of which had been produced by his representatives , the applicant submitted , among other things , that on DATE he had been summoned to the colony special purpose unit and handed , against signature , a refusal to prosecute the police officers allegedly involved in his ill - treatment . During the conversation the applicant had allegedly been told that he was the one who should be criminally prosecuted for giving false statements .

On an unspecified date in DATE ORG of ORG initiated an internal inquiry into the applicant 's allegations of ill - treatment . In the course of the inquiry officers ORG , GPE and R.Kh . gave written explanations . In their explanations , dated DATE , ORG and R.Kh . denied having applied unlawful methods to the applicant .

GPE 's statement of DATE , in so far as relevant , reads :

“ ... Neither I nor any other officer applied unlawful methods [ to the applicant ] . ..

I remember that [ the applicant 's ] medical examination was carried out in PERSON and not in PERSON with a view to having it objectively conducted , otherwise [ the applicant 's ] defenders would subsequently have complained about the “ biased ” conclusions of the ' local ' expert . ”

In an explanation of CARDINAL July CARDINAL TIME submitted that in DATE he had been the head of the NORP temporary detention centre in the NORP police station . In DATE , following investigator PERSON order , TIME , driver PERSON and “ another police officer ” collected the applicant in GPE in ORG and escorted him for a medical examination . In a forensic bureau in PERSON , in the presence of TIME , S. and the third police officer , an expert had removed the applicant 's clothes and examined him , while asking him all relevant questions . They had stayed in the bureau for TIME . TIME had not seen any visible injuries on the applicant .

On DATE the deputy head of the Minister of the Interior of GPE discontinued the inquiry , having found no indication of a violation of the applicant 's rights under LAW .

By a decision of DATE the NORP district prosecutor 's office refused to initiate criminal proceedings against expert PERSON in connection with the applicant 's medical examination no . CARDINAL , having found no evidence of crime in his acts . The decision , in so far as relevant , read :

“ PERSON personally carried out examination [ no . CARDINAL ] . Despite the fact that from CARDINAL August to DATE ] he was supposed to be on leave , he had to come back to work due to the absence of expert B. on DATE . During the above period of time and in addition to [ the applicant 's ] medical examination , PERSON carried out medical examinations of a further CARDINAL persons and QUANTITY postmortem examinations , which follows from the relevant registration logs and PERSON 's own explanation .

[ The applicant 's ] and his lawyer 's submissions that PERSON intentionally compiled a false report attesting to the lack of injuries are unsubstantiated . ”

It is not entirely clear what prompted the initiation of the inquiry concerning the applicant 's medical examination and whether the applicant was informed of its results .

Article CARDINAL § CARDINAL of LAW prohibits torture .

The RSFSR Code of Criminal Procedure ( “ RSFSR CCP ” , in force at the material time ) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities ' own motion ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for general supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order a specific investigative action , transfer the case from CARDINAL investigator to another or request that the proceedings be re - opened . If there were no grounds to initiate a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party .

A prosecutor , investigator or judge was obliged to consider complaints and information about any crime committed and to initiate or refuse a criminal investigation , or to transmit the case to a competent authority ( Article CARDINAL ) . A prosecutor 's refusal to initiate a criminal investigation could be appealed to a higher prosecutor ; a judge 's refusal could challenged at a higher court ( LAW ) .

On DATE ORG of GPE invalidated LAW ORG in so far as it did not allow judicial review of a prosecutor 's or investigator 's refusal to institute criminal proceedings . ORG ruled that ORG was to amend the legislation on criminal procedure inserting a possibility of such judicial review . It also held that until such amendments , the national authorities , including courts , should apply directly LAW requiring judicial review of administrative acts , including a refusal to initiate criminal proceedings . The ruling was published in DATE .

In a ruling of DATE ORG declared unconstitutional several provisions of ORG authorising the courts to initiate , of their own motion , criminal proceedings . In the same ruling ORG reiterated that a court could carry out judicial review of the lawfulness and reasonableness of an investigating authority 's decision to open a criminal case , to refuse to initiate criminal proceedings or to discontinue such proceedings , in particular , upon a complaint of a person who considered that his or her constitutional rights had been breached by such a decision . The ruling was published in DATE .

Under LAW , in force at the material time , counsel could be admitted to the proceedings from the moment of announcing / listing charges , or DATE for an arrested or detained suspect – from the moment of giving him or her access to the arrest record or detention order . If a privately - retained counsel did not appear within TIME , the authority in charge of the case was allowed to suggest that the person retain another counsel , or to appoint counsel ( LAW ) . On DATE ORG indicated that LAW did not require any special permission for meetings with counsel . In the same decision ORG invalidated CARDINAL provision of the DATE LAW in so far as the authorities applied it as requiring counsel who wanted to see his client to obtain special leave from the authority in charge of the criminal case .

Article CARDINAL of LAW provides that no one may be required to incriminate himself or herself and his or her spouse and close relatives .

Article CARDINAL of the RSFSR CCP required that a confession statement be recorded in detail in a separate document , signed by the person who gave the confession and by the investigator or prosecutor who took the confession .

Article CARDINAL of LAW , setting out the procedure for re - opening of criminal cases , in so far as relevant , reads :

“ CARDINAL . Court judgments and decisions which have become final are to be quashed and proceedings in a criminal case are to be re - opened in the event of new or newly discovered circumstances .

New circumstances are :

( CARDINAL ) a violation of a provision of LAW committed by a court of GPE during examination of a criminal case and established by ORG , pertaining to :

( a ) application of a federal law which runs contrary to the provisions of LAW ;

( b ) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms ;

( c ) other new circumstances . ”

For a summary of the relevant international documents on access to counsel see GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


DEARI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicants , Mr PERSON ( “ the first applicant ” ) , Mr PERSON ( “ the second applicant ” ) and Mr PERSON ( “ the third applicant ” ) , are NORP nationals who were born in DATE and DATE respectively and live in GPE , LOC and GPE . They were represented before ORG by PERSON , of FAC ( Advice on Individual Rights in LOC , GPE ) . ORG ( “ the Government ” ) were initially represented by their former Agent , PERSON , succeeded subsequently by their present Agent , Mr PERSON .

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

The first applicant is the father of PERSON ( “ Mr A.D. ” ) who was killed on DATE ; the second applicant is the father of PERSON PERSON ( “ Mr J.M. ” ) ; and the third applicant is the father of Mr PERSON ( “ Mr GPE ) . Mr PERSON and Mr GPE were killed on DATE .

The Government invited the ORG to view the events giving rise to the ORG complaints in the light of the DATE armed conflict between ethnic NORP and the Government security forces and the fact that armed criminal groups were still active in the former crisis areas DATE after the conflict . In respect of PERSON killing , particular attention was drawn to the incidents of CARDINAL DATE on FAC ( “ the highway ” ) in which armed civilians kidnapped CARDINAL persons , including QUANTITY minor girls . In this connection the Government referred to a public announcement of CARDINAL DATE in which ORG ( “ the Ministry ” ) called for the inhabitants of neighbouring villages to remain , for security reasons , in their homes .

At TIME on DATE Mr DATE was travelling in a car with foreign registration plates , together with GPE , when police officers from the special police force “ Lions ” , under the Ministry , stopped them on the highway . According to a report drawn up DATE by ORG , Mr A.D. , in an attempt to flee the scene , resisted the security forces by pulling out a pistol . Firearms were used against him . He sustained several bodily injuries . Furthermore , QUANTITY pistols were found in the car . The local police station was alerted immediately . Police officers arrived at the scene and took Mr DATE , who still held the pistol in his hand , to the local medical centre where his death was confirmed . GPE was arrested on account of unlawful possession of firearms and released without charge . The names of the officers involved in his arrest were not recorded in any register of ORG .

On DATE the investigating judge , public prosecutor , police and representatives of the OSCE ’s mission in the respondent ORG inspected the scene , but no useful evidence was found owing to heavy rainfall . In a written and duly signed statement given before the investigating judge , the first applicant requested that no autopsy or investigation be conducted in relation to his son ’s death . In view of that request , the investigating judge ordered an external examination of Mr DATE ’s corpse and requested that an expert describe the injuries , the way in which they had been sustained , as well as to determine , if possible , the time and direct cause of Mr DATE death . The expert report noted bruises to Mr DATE ’s head , face , chest and stomach and several penetrating gun - shot wounds to his leg , arms , chest and neck .

On DATE the public prosecutor requested that the investigating judge take certain steps to investigate PERSON death . The request referred to the on - site examination report of CARDINAL DATE , which was to be regarded as a criminal complaint .

On DATE the ORG questioned GPE According to a report signed by a police officer , GPE stated , inter alia :

“ ... we [ with Mr DATE ] were stopped by the police . I showed them my ID and car registration document . The officers ordered me to step out of the car . A. [ Mr A.D. ] got out of the car as well . I was ordered to open the boot . ... During the search of the boot and the interior of the car , I heard an officer saying ‘ I ’ve found CARDINAL ORG . After this statement , my hands were put behind my back and tied ... At CARDINAL moment , they put my head in the boot . While my torso was in the boot I heard gunshots , after which a sweater was put over my head to prevent my sight ... I heard one of the officers speaking into the radio , saying that CARDINAL of the persons concerned had been killed after he had fired a gun while attempting to flee ... ”

On DATE , the ORG submitted a criminal complaint against an unidentified perpetrator . Photo documentation of the scene and of PERSON DATE ’s corpse , as well as expert reports confirming his bodily injuries and bullet wounds were submitted to the investigating judge .

On DATE ORG ( Управа за криминалистичка техника ) at ORG sent the investigating judge an expert report concerning PERSON pistol , which stated the following :

“ ... it was concluded that it had been fired from the pistol submitted for examination ... all parts of the weapon are fully operational ... A test was done for nitrate residue on samples taken from Mr DATE ... The reaction was negative , namely no nitrate residue was discovered . We emphasise that the samples were covered in blood , which significantly affected the analysis for nitrate residue ... Since the clothes were abundantly covered in blood , we can not determine the distance from which the gunshots were fired ... ”

The first applicant alleged that on DATE he had notified the ORG ’s representatives in the respondent State that he had not been contacted by any competent institution in respect of his son ’s death . No evidence was provided in this respect .

NORP In DATE the investigating judge returned the case file to the public prosecutor . The latter requested that the Ministry determine the identity of the police officers involved in the incident .

In a letter of CARDINAL DATE , ORG confirmed that the special police forces had used weapons against Mr A.D. Information was sought from the relevant department as to whether the officers concerned had taken the required actions ( see paragraphs CARDINAL and CARDINAL below ) after the incident .

NORP In DATE the public prosecutor again asked the ORG to submit the required information .

At the same time , a working group was set up to investigate several cases of alleged police abuse of citizens of NORP ethnic origin , including the present case . The working group involved representatives of ORG , the LOC , the ORG , ORG and ORG in the respondent ORG . The working group operated DATE and DATE .

On DATE the investigating judge heard evidence from GPE According to the transcript signed by GPE , the latter stated , inter alia :

“ ... When we approached the toll booth on FAC , I noticed a high police presence and decided to turn around and take the ‘ old road’ ... While driving on the old road ... I again noticed a high police presence ; the road was blocked by a heavy vehicle . At both sides of the road there were many armed police officers . A police officer used a lamp to stop our car . He approached the car and requested documents . I gave him my registration document and my ID . Then he grabbed my shirt and pulled me out of the car . After me , Mr DATE was also removed from the car . Both of us were standing in front of the car , while police officers conducted the search . CARDINAL of them said that he had found CARDINAL guns in the car . Each of them belonged to me and PERSON [ Mr DATE ] . At that moment , a police officer grabbed the handcuffs on my hands which were behind my back and pulled them up ; another officer grabbed my leg and pushed me to the ground . They dragged me to the back of the car . ... They put me head first into the boot . My legs were outside the car . An officer pointed an automatic gun at my head and another beat me . I could n’t see what was happening to A. I heard someone saying ‘ stop , hold GPE . Gunshots were subsequently heard , I think from several weapons , but I did not know what was going on . They took off my sweater and put it over my head . They took me out of the boot and placed me on the ground ... The CARDINAL pistols were in the compartment in front of A. ’s seat ... The person who pulled me out of the car that night was wearing a mask , so I could see only his eyes , I could n’t see his face . Others were wearing masks as well . I only noticed the ‘ Lions’ symbol on their uniforms ... ”

DATE , the investigating judge examined QUANTITY police officers . DATE , the investigating judge requested , in vain , that a certain police officer , TIME , be summoned .

In DATE the file was forwarded to the public prosecutor , who , in DATE , returned it to the investigating judge , requesting , inter alia , that the first applicant be examined . By a letter of CARDINAL DATE , the investigating judge informed the public prosecutor that the first applicant had not been examined because he had not appeared in court owing to illness . After the file was returned to the public prosecutor , the latter requested , by a letter of CARDINAL DATE , that ORG undertake additional measures to identify the individuals involved in Mr DATE ’s killing .

On DATE the first applicant , with the assistance of PERSON M.R. , a lawyer from GPE , sought information from the public prosecutor about the death of his son and requested a copy of the case file . On DATE the public prosecutor informed him that a file had been opened in respect of an unidentified perpetrator and that certain investigative steps had been taken , but the perpetrator had not yet been discovered . Mr PERSON was permitted to inspect the case file .

The first applicant took no further action . It appears that the investigation into the killing of Mr DATE is still pending .

On DATE ORG and ORG conducted a joint operation in the village of GPE with the purpose of apprehending an armed group suspected of having committed several crimes , including robbery and kidnapping of civilians and police officers . There was an exchange of fire in which automatic long - range weapons and mortars were used . After the exchange of fire , the security forces searched the area and discovered CARDINAL bunkers and a large quantity of heavy weaponry and ammunition . PERSON and Mr DATE were killed in this operation . According to the post - mortem reports of the same date drawn up by ORG , PERSON sustained CARDINAL bullet wounds and Mr GPE sustained CARDINAL . Gunpowder tests confirmed the presence of nitrate residue on the hands of PERSON and Mr Q.S.

On DATE the Ministry submitted photos and video material of PERSON and PERSON ’s corpses to the public prosecutor , as well as an expert report regarding the weaponry and ammunition found .

On DATE the public prosecutor requested information from ORG . In a letter of DATE the Ministry informed the public prosecutor that , owing to the use of heavy weapons by the armed group , police officers had not been able to reach the armed group ’s positions , but that military forces from ORG had arrived at the critical area instead .

On DATE the public prosecutor notified the Ministry that on the basis of the available information there were no grounds for the public prosecutor ’s intervention .

As stated by the Government , on the basis of recommendations of the working group that also looked into this case , on DATE and DATE the public prosecutor contacted ORG seeking information about the operation . In a letter of DATE , ORG indicated that the operation had been carried out by ORG . On DATE the public prosecutor requested that both Ministries clarify the inconsistencies concerning their involvement in the operation . In submissions of DATE , ORG confirmed its position indicated in its letter of DATE and invited the public prosecutor to clarify the matter with ORG . The same was repeated in the ORG ’s letter dated DATE .

On DATE the second and third applicants , represented by PERSON , asked the public prosecutor to provide them with a copy of the case file . They stated that all the information they had obtained about the death of PERSON and Mr PERSON had come from the media since no competent institution had ever contacted them concerning the case . By a letter of DATE , the public prosecutor informed the second and third applicants of his requests for information from both ORG and his “ resolution ” of DATE ( see paragraph CARDINAL above ) . According to the Government , this letter was sent on DATE .

The second and third applicants took no further action . It appears that the investigation into the killing of PERSON and Mr DATE is still pending .

The applicants submitted extracts of articles and reports published DATE by ORG and ORG about alleged police abuse , in particular of NORP citizens of NORP ethnic origin . Most of the documents concerned the period before and after the DATE armed conflict . None of them discussed the deaths of the applicants’ sons .

Article CARDINAL of the Criminal Code provides that a person who takes the life of another shall be punished with imprisonment of DATE . It also provides for imprisonment of DATE or DATE imprisonment in the case of aggravated murder .

The provisions of LAW relevant to the present case were described in the ORG judgment ( see ORG v. the former GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ) .

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW of DATE ( ORG за PERSON , ORG no . CARDINAL ) provided that citizens , bodies and other legal persons could make submissions , complaints and statements to the public prosecutor in relation to activities that fell within his or her competence . The public prosecutor was required to take , as soon as possible , but not DATE after the service of a criminal complaint , any action specified by law .

Under section CARDINAL of this LAW , the superior prosecutor ’s office supervised the work of the subordinate prosecutor ’s office through an inspection of case files and in any other way .

Section CARDINAL of LAW of DATE ( ORG no.CARDINAL/CARDINAL ) provides that the superior prosecutor ’s office supervises the work of the subordinate prosecutor ’s office in concrete cases brought before the latter . The aim of that supervision is to detect inter alia any lack of professionalism , unlawful , untimely or irresponsible performance by the public prosecutor concerned and any serious violation of the rights of parties or other persons that participate in the proceedings .

Section DATE ( CARDINAL ) and ( CARDINAL ) of that LAW provides for the same rules as those specified in LAW ( see paragraph CARDINAL above ) .

Under LAW on the use of coercion and firearms , when means of coercion or firearms have been used , the ORG official concerned must submit a written report to his immediate superior who will decide whether the action was lawful and justified .

CARDINAL .