Violation of Art. 6-1;Not necessary to examine Art. 6-1 (other complaint);Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed

Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa

The applicant was born in DATE and lives in GPE .

On DATE the applicant was drafted into the army and assigned to military unit no . CARDINAL , situated next to the border with GPE .

On DATE the applicant , together with CARDINAL fellow servicemen , was placed on watch in position no . CARDINAL .

On DATE CARDINAL of the CARDINAL watchmen , serviceman PERSON , was found dead in a nearby trench , having been killed by a machine - gun shot . At the time of the killing , CARDINAL of the remaining CARDINAL watchmen were in the area of position no . CARDINAL , namely the applicant and servicemen PERSON The latter CARDINAL were apparently cutting wood together not far from the position . It appears that the applicant had been seen to have an argument with H. earlier that day .

On DATE servicemen T. and A. were brought to a military police station . On DATE the applicant was also brought to the same police station . The military police officers started to beat them , seeking to force them to confess to serviceman PERSON ’s murder . According to the applicant , they told the police officers that serviceman PERSON must have been shot from the other side of the border , to which the officers replied that it had already been established that serviceman PERSON had been killed at close range , and continued to beat them .

The applicant was initially punched and kicked . The police officers then began to hit him with rubber clubs . The applicant lost consciousness on several occasions but was revived and continued to be beaten . After a while the police officers began to squeeze the applicant ’s fingertips with pliers . The same torture techniques were applied to servicemen T. and A.

On DATE serviceman PERSON confessed to the investigator that he had witnessed how the applicant had taken his machine gun and shot PERSON Since serviceman PERSON was with serviceman PERSON at the time of the murder , he was coerced into making a statement to the effect that serviceman PERSON had told him that he had witnessed the murder .

The police officers subsequently continued to torture the applicant , forcing him to confess to the murder . According to the applicant , this continued for DATE . He was unable to walk and talk properly , and all his fingertips were swollen .

On DATE the applicant was interrogated as a suspect by the investigator examining the case , to whom he confessed that he had accidentally shot serviceman H.

On DATE the applicant was formally charged with premeditated murder and questioned as an accused by the investigator ; during this interview he repeated his confession . Thereafter he was taken to the crime scene , where he made the same statement in front of a video camera and the relevant record was drawn up . On the same date the applicant was placed in pre - trial detention .

According to the applicant , immediately after their release from the police station on an unspecified date , servicemen ORG informed ORG ( ՀՀ զինվորական դատախազ ) in writing that they had been coerced into slandering the applicant .

On DATE the applicant and servicemen PERSON were subjected to medical examinations , during which various injuries to their fingers and A. ’s head were noted .

On DATE a confrontation was held between the applicant and serviceman T. , during which the latter confirmed his earlier testimony against the applicant .

On an unspecified date , the applicant ’s criminal case was brought before ORG ( GPE մարզի առաջին ատյանի դատարան ) .

On DATE a hearing was held during which serviceman T. confirmed his earlier testimony against the applicant .

On DATE the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) quashed this judgment and remitted the case for additional investigation .

On DATE , following the additional investigation , the case was brought again before ORG .

On DATE ORG decided to remit the case for further investigation .

On DATE the Criminal and Military Court of Appeal quashed this decision on an appeal by the prosecutor and remitted the case to ORG for examination on the merits .

NORP In the proceedings before ORG , the applicant ’s lawyer asked that the applicant ’s confession statements of CARDINAL and DATE and the statements made by witnesses T. and A. during the investigation in DATE be declared inadmissible , since they had been obtained under torture . By that time criminal proceedings had already been instituted against the relevant military police officers on account of the torture of the applicant and servicemen T. and A.

On DATE ORG found the applicant guilty of premeditated murder and sentenced him to CARDINAL years’ imprisonment . The sentence was to be calculated from DATE of the applicant ’s detention on DATE . In its judgment , ORG stated that “ [ T]he following ha[d ] been established during the court examination ” and went on to describe the circumstances in which the applicant had shot serviceman H. ORG then stated :

“ For these actions [ the applicant ] was charged [ with premeditated murder ] .

During ... questioning on DATE [ the applicant ] admitted to the investigating authority that [ serviceman PERSON ] had died from a bullet accidentally shot from [ the applicant ’s ] machine gun .

On DATE during questioning as an accused he again admitted that [ serviceman PERSON ] had died from a bullet which had been shot by [ the applicant ] as a result of a violation of the rules for the handling of weapons .

[ The applicant ] confirmed this statement during the re - enactment of the circumstances of the incident [ on DATE ] , the video recording of which has been examined during the court proceedings .

[ The applicant ] later revoked this confession .

During the court proceedings [ the applicant ] pleaded not guilty and stated that he had not killed [ serviceman H. ] ; they had not had an argument on DATE of the incident , they had not sworn at each other , he was unaware of the circumstances of [ serviceman PERSON ] death , and his confession had been made under the influence of the violence and threats inflicted on him by the [ police officers ] .

Such arguments [ by the applicant ] are unfounded , contradict the evidence obtained during the court examination and can not serve as a basis for avoiding criminal liability and punishment .

[ The applicant ’s ] ... arguments have been rebutted and his commission of the offence has been proven by the following evidence obtained during the court examination : ... ”

As an example of such evidence , ORG went on to cite the statement made by witness T. on DATE . It further stated :

“ [ Witness T. ] made the same statement before ORG at [ the hearing of DATE ] .

During the investigation [ witness T. ] confirmed this statement at a confrontation with [ the applicant on DATE ] . Thereafter [ witness T. ] revoked this statement and submitted that he had not witnessed the circumstances in which [ serviceman PERSON ] had been killed . He also made a similar statement during this court examination , indicating that his statement about witnessing the killing of [ serviceman PERSON by the applicant ] had been made under the influence of the violence inflicted on him by the [ police officers ] .

A similar statement was also made by [ witness A. ] . ”

ORG went on to cite a number of circumstantial and hearsay witness statements and an expert opinion to the effect that the shot had been fired at close range , and concluded that :

“ Having evaluated the contradictory statements made by [ witnesses DATE ] during the investigation and the court examination , the court finds that in reality the coercion was applied by [ the police officers ] at the military police station for the purpose of ensuring disclosure of the truth .

... The revocation at a later stage by [ witness T. ] of his [ statements made during the investigation ] was aimed at helping [ the applicant ] to avoid criminal liability . The fact that [ witness T. ] was aware of the circumstances of [ serviceman PERSON ] death was confirmed by the unconstrained submissions he made at the [ court hearing of CARDINAL DATE ] , without being subjected to any ill - treatment or threats , and the stories he told to [ CARDINAL fellow villagers ] following his demobilisation . ”

ORG concluded by citing other evidence substantiating the applicant ’s guilt , such as ( i ) a forensic examination of the victim ’s tissue samples and a medical examination of his corpse , according to which he had died from a shot fired at close range ; ( ii ) a ballistic examination , to the effect that the shell found at the crime scene had been fired from NORP type machine gun no . CARDINAL , which had been issued to the applicant ; ( iii ) the record of examination of the crime scene , drawn up on DATE , and a number of other materials .

On DATE the PERSON and Nor ORG of GPE ( ORG քաղաքի CARDINAL և GPE համայնքների առաջին ատյանի դատարան ) found military police officer PERSON and CARDINAL other police officers guilty of abuse of power and imposed sentences ranging from CARDINAL and a half years’ imprisonment . ORG found :

“ On DATE , in connection with the murder of [ serviceman H. ] , ... [ police officer PERSON ] brought [ servicemen A. and T. ] and others to the military police station . On DATE [ the applicant was also brought to the station ] . There [ the police officers ] beat them for DATE , delivered numerous blows to [ the applicant ] and others with a rubber club and squeezed their fingertips with pliers , causing injuries of various degrees . Then [ the police officers ] forced them to take off their shoes , put their hands on the backs of their heads and get down on their knees , and started to club their soles . By threatening to continue the ill - treatment , [ the police officers ] forced [ the applicant ] to confess that he had murdered [ serviceman H. ] , [ serviceman T. ] to state that he had witnessed that murder , and [ serviceman A. ] to state that he was aware of the murder . [ The police officers ] also threatened the victims with retaliation if they informed any higher authority about the ill - treatment ...

On DATE , in his office in the military police department in GPE , [ police officer PERSON ] forced [ serviceman A. ] to state in relation to the ill - treatment that he was not familiar with [ police officer PERSON ] , that nobody had beaten him and that the injuries on his fingers had been sustained as a result of his hand being squashed by a car door ...

The systematic , unprecedented , essentially cruel and degrading actions inflicted by [ the police officers on the applicant and others ] , which had the attributes of torture , entailed grave consequences in that such actions violated the legally guaranteed rights and interests of [ the ] servicemen ... ”

This judgment was based on various witness statements , including those of the applicant and servicemen T. and A. , and the results of the medical examinations .

In his witness statement , the applicant submitted , inter alia , that he had been detained until DATE in the military police station , where he was regularly beaten . At DATE he was transferred to a military prosecutor ’s office but then brought back to the police station on DATE . On his return journey , police officer PERSON threatened him with retaliation if he refused to confess . On DATE another police officer also threatened him , but promised to qualify the offence as accidental if the applicant agreed to confess ; after this the applicant made his confession statement .

In his witness statement , serviceman PERSON submitted , inter alia , that after testifying to the investigator , he and serviceman T. were kept in the canteen of the police station for DATE . At DATE , police officer PERSON called him and serviceman PERSON and demanded that , when questioned by the investigator , they tell him that they had not been beaten or ill - treated in the police station , and that the injuries on their fingers had been sustained as a result of their fingers being squashed by a car door . On CARDINAL DATE police officer PERSON threatened to kill him if he informed the investigator about the ill - treatment .

In his witness statement , serviceman ORG submitted , inter alia , that on DATE , under pressure from police officer PERSON , he had testified to the investigator that nobody had beaten him .

On an unspecified date the applicant ’s lawyer lodged an appeal against this judgment .

On DATE the Criminal and Military Court of Appeal refused to examine the appeal since , according to the domestic law , a victim in criminal proceedings had the right to appeal only if the proceedings had been instituted on the basis of his or her complaint .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) upheld this decision .

On an unspecified date the applicant lodged an appeal against his conviction of DATE .

In the proceedings before the Criminal and Military Court of Appeal , the applicant submitted that he was not aware of the circumstances of serviceman PERSON ’s death and that he had been coerced into making his confession statement .

Witness T. submitted that he had not seen who had killed serviceman ORG , since he and witness A. had been absent at the material time . He further submitted that the statement made by him during the preliminary investigation , to the effect that he had witnessed the murder , was untrue and that he had been forced to make it . Immediately after the incident all CARDINAL servicemen had agreed to say that serviceman PERSON had been killed by an NORP sniper , but in reality he knew nothing about the circumstances of PERSON ’s death . PERSON made similar submissions .

On DATE the Criminal and Military Court of Appeal decided to uphold the applicant ’s conviction . In doing so , ORG found that the above submissions were made as a result of collusion between the applicant and the witnesses , aimed at helping him to avoid criminal liability . These submissions were rebutted by the evidence obtained in the case , such as :

( a ) The applicant ’s confession of DATE to the investigator . Later and in court the applicant had revoked this statement , as having been made under coercion , but had failed to indicate the details of any coercion applied to him in the investigator ’s office .

( b ) Submissions by witnesses T. and A. to ORG at the hearing of DATE , to the effect that CARDINAL of them had witnessed and the other was aware of the murder . Witnesses ORG had later revoked these submissions but accepted that no coercion had been applied to them in court and that these submissions , albeit untrue , had been made voluntarily .

( c ) Other circumstantial and hearsay witness statements , the relevant expert opinions , various records and the video recording .

ORG concluded by statfor the charges and had not been used as evidence .

On DATE the applicant ’s lawyer lodged an appeal . He argued , inter alia , that the applicant ’s confession statement of DATE , and the record and the video recording prepared at the crime scene on DATE , had been made as a result of the beatings , ill - treatment and threats inflicted on the applicant , and could not therefore be used as evidence against him . Furthermore , ORG should not have relied on the submissions made by witness T. at the very early stage of the proceedings , including the hearing of DATE , to justify the credibility of his first accusatory statement , made under torture . These submissions had been the result of the fear experienced by witness ORG following the unprecedented violence inflicted on him . He had been under constant pressure from the investigators , having been detained on several occasions , and at the time of the above - mentioned hearing he had not yet been demobilised and was afraid of being taken back into custody and subjected to ill - treatment again . As an example of witness ORG ’s fear of telling the truth , the applicant ’s lawyer referred to T. ’s testimony of CARDINAL DATE , in which he had submitted that the injuries to his fingers had been sustained as a result of his fingers being squashed by a car door . For DATE , however , since he had revoked his earlier statements , witness ORG had been insisting that he was not aware of the circumstances of serviceman PERSON ’s death . Finally , the applicant ’s lawyer argued that , contrary to what had been indicated in ORG judgment , witness ORG had never made any accusatory submissions against the applicant during the court examination of the case . On the contrary , he had always insisted that witness ORG could not have witnessed the murder since they had been together at the material time .

On DATE ORG dismissed the lawyer ’s appeal and upheld ORG judgment . In doing so , ORG found , inter alia , that :

“ The conclusions in the judgment are corroborated by the evidence examined in court , in particular , statements by [ witnesses DATE and others , and the results of various expert opinions ] .

... It has been established that after the incident [ servicemen T. and A. , the applicant and others ] agreed ... to testify that [ serviceman PERSON ] had been killed by [ the NORP ] , nevertheless , [ serviceman T. ] testified in the first - instance court on DATE that [ serviceman PERSON ] had been killed ... by [ the applicant ] .

The arguments of [ the applicant ’s ] lawyer that the judgment was based on statements by [ witnesses T. and A. ] which had been obtained under torture are groundless , contradict the materials of the case and are rebutted by the following evidence .

[ The applicant and witnesses T. and A. were beaten for DATE by the police officers ] who demanded that they make honest statements concerning the murder of [ serviceman H. ] . The police officers did not take any statements from them . The statements were taken by the relevant investigator from the military prosecutor ’s office , who did not ill - treat them ...

[ The relevant police officers were convicted ] . No criminal proceedings were brought against any of the investigators dealing with the case .

... On DATE a confrontation was held between [ the applicant and serviceman T. in the presence of the applicant ’s lawyer ] , during which [ serviceman T. ] contended that [ serviceman PERSON ] had been killed with a machine gun [ by the applicant ] . It has been established that no ill - treatment was inflicted on him at that time .

At a later stage [ serviceman T. ] revoked the above statements and submitted that he had not seen who had killed [ serviceman H. ] , although he did not deny that on several previous occasions he had submitted that it was [ the applicant ] who had killed [ serviceman H. ] . ORG rightly considered [ T. ’s ] confession statement as reliable and regarded it as proof of [ the applicant ’s ] guilt .

During the preliminary investigation [ the applicant ] testified to the investigator from the military prosecutor ’s office that it was he who had killed [ serviceman H. ] , albeit accidentally .

Thus , irrespective of the fact that during the preliminary investigation the military police officers ill - treated [ the applicant and witnesses DATE , the evidence obtained in the case , if evaluated from the perspective of relativity and admissibility , is sufficient in its entirety to convict [ the applicant ] of the incriminated crime . ”

On DATE the applicant was released on parole .

The relevant provisions of LAW ( ՀՀ քրեական դատավարության օրենսգիրք ) read as follows :

“ In the course of criminal proceedings no one shall be subjected to torture and to unlawful physical or mental violence , including such treatment inflicted through the administration of medication , hunger , exhaustion , hypnosis , denial of medical assistance and other cruel treatment . It is prohibited to coerce testimony from a suspect , accused , defendant , victim , witness and other parties to the proceedings by means of violence , threat , trickery , violation of their rights , and through other unlawful actions . ”

“ No one shall be obliged to testify against himself ... ”

“ The following materials can not constitute the basis for charges and be used as evidence in criminal proceedings : ( CARDINAL ) materials obtained under violence , threat , trickery , humiliation of a person , and through other unlawful actions ... ”

“ The inadmissibility of factual data as evidence , and the possibility of their limited use in the proceedings , shall be established by the examining authority of its own motion or upon the request of a party . ”

“ Evidence obtained in the case must be thoroughly and objectively examined : it must be analysed , compared with other evidence , new evidence must be collected , and its sources must be verified . ”

“ A judgment shall be composed of introductory , descriptive - motivational and concluding parts . ”

“ The descriptive - motivational part of a judgment shall contain : ( CARDINAL ) the content of the accusation ; ( CARDINAL ) the court ’s conclusions with regard to tested and the defendant ’s guilt ; ( CARDINAL ) the evidence on which the court ’s conclusions are based ; and ( CARDINAL ) the legal provisions on which the court relied in reaching its decision . ”

The Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment , as adopted by ORG on DATE ( resolution CARDINAL ) , provides :

“ ORG shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings , except against a person accused of torture as evidence that the statement was made . ”


Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

It appears that in an unrelated incident on DATE the applicant broke his spine . He underwent surgery to have a metal implant inserted into his back for support . It appears that following the operation he could move unaided . He was certified as being Category CARDINAL disabled .

On DATE a note was made for the first time in the applicant ’s medical records that he could not move without a wheelchair .

On DATE the applicant was certified as being Category CARDINAL disabled ( the most severe level of disability ) . His disability was reassessed on CARDINAL further occasions , CARDINAL DATE and CARDINAL DATE .

On DATE at QUANTITY , CARDINAL traffic police officers , GPE and GPE , attempted to stop the applicant , who had exceeded the speed limit in Rīga and appeared to be driving under the influence of alcohol . He failed to stop on their instructions and continued driving . The police officers set out to follow him out of the city onto the Rīga - Jelgava motorway . They eventually overtook the applicant ’s car and pulled it over to the side of the road until it came to a halt . Both vehicles were by then next to an apartment building on a residential street in GPE .

According to the Government , both police officers then saw a firearm in the applicant ’s inner left jacket pocket , and proceeded to push him to the ground using unspecified restraint techniques ( speciālie cīņas paņēmieni ) and handcuffed him . They then called the local police to the scene to collect evidence . The applicant was breathalysed on the spot and then taken to a police station in ORG .

The applicant did not agree with the ORG ’s version of events concerning his possession of a firearm . He submitted that the police officers had kicked him in the back several times , hurting him badly , before finding out that he was disabled . He alleged that when he had invited them to verify his documents , which were in his wallet in his car , the officers had planted a firearm on him in an attempt to evade criminal liability for having assaulted a disabled person . The applicant denied having had the firearm . He maintained that if he had been keeping a firearm , he would have disposed of it during the car chase .

On DATE the applicant was taken to a public hospital in GPE ( PERSON . slimnīca ) , where an X - ray of his spine was carried out . His state of health was described as being “ post - spinal fixation ” . The fixing screws that held the metal implant supporting his spine in place had been broken . He also suffered from a spinal contusion and lower back pain . Lastly , it was noted that a consultation with a specialist was necessary .

On DATE at CARDINAL p.m. , the applicant was transferred to a specialist traumatology and orthopaedics hospital in GPE ( GPE un ortopēdijas slimnīca ) . He told a specialist that DATE before he had been fleeing from the police . Some officers had stopped him , had pulled him out of the car and had pushed him to the ground , which had led to his back making a hyperextensive movement , in other words , it had bent too far backwards . The applicant complained of lower back pain on his right side and said that he was unable to move his right leg because of the pain . Following an examination by a specialist , the applicant was diagnosed with the following : i ) a hyperextension injury and contusion to the lower back ; ii ) a transverse process fracture ( resulting from rotation or extreme lateral bending ) to the LCARDINAL vertebra , iii ) a compression fracture ( flexion fracture pattern ) to the LCARDINAL vertebra , previously fused by transperpendicular fixation surgery , the metal implant having become dislodged and screws in the ThCARDINAL and LCARDINAL vertebrae having been broken , and iv ) intoxication . An ORG revealed that the fracture to the applicant ’s LCARDINAL vertebra had been fused and fixated with rods and CARDINAL screws . CARDINAL screws in the applicant ’s ThCARDINAL and LCARDINAL vertebrae had been broken . The metal implant had become dislodged . While at the hospital , the applicant received various types of medication .

On DATE the applicant was discharged from the hospital for outpatient treatment with recommendations to continue taking medication and to wear a fixating belt .

On DATE at TIME , the applicant was transferred to FAC . Upon admission , he was examined by a doctor , who noted the diagnosis of the specialist hospital and placed the applicant in the surgical ward of FAC located within the grounds of the prison . The applicant ’s overall state of heath was described as satisfactory .

On DATE the applicant complained of severe lower back pain and said that he could not lift his right leg or walk . His state of health was described as moderately severe . A procaine blockade ( an anaesthetic which affects the peripheral nervous system ) was administered to him .

On DATE a further procaine blockade was administered to the applicant .

On DATE his pain lessened and he could stand up and walk . On DATE an X - ray was carried out and no injuries other than those noted by the specialist hospital ( see paragraph CARDINAL above ) were found . An X - ray of his lungs was also carried out , the results of which were clear .

On DATE the applicant had cold - like symptoms and complained of lower back pain . He also said that he could not feel his right thigh . Treatment was prescribed to him for an acute respiratory illness .

On DATE an infiltration in the applicant ’s right hip was detected . His fever had been caused by the post - injection infiltration . Over the following DATE , the applicant was consulted by a neurologist and a psychiatrist .

On DATE a surgical procedure was carried out to relieve the applicant ’s pain , which continued to persist after that date and until DATE . On the latter date the applicant ’s overall state of health was described as satisfactory and he could walk again .

On DATE the applicant was discharged from ORG , but remained in custody .

On DATE , after the applicant was taken to the police station in ORG , both traffic officers were questioned by an inspector of the NORP police within the criminal proceedings concerning the firearm charge ( see paragraph CARDINAL below ) .

E.Š. was the first to make a statement , on DATE His version of events was as follows . In a residential area in GPE , he had taken the applicant by the hand and had made him step out of the car . Both he and his colleague had seen a firearm in the applicant ’s inner left jacket pocket . They had both proceeded to push him to the ground and to handcuff him . His colleague , GPE , had taken the firearm out of the jacket pocket . They had then called the local NORP police , who had arrived and had confiscated the firearm . The local police had also found a bullet in the car the applicant had been driving . Lastly , the police officers breathalysed the applicant and found that he had been under the influence of alcohol .

In addition , in a report to his superior , which was drafted on DATE , ORG noted that restraint techniques had been used on the applicant because a firearm and bullets had been found in his inner left jacket pocket .

O.Ž. made his statement on DATE , CARDINAL p.m. His evidence was very similar to that of his colleague . He also stated that they had both seen the firearm in the applicant ’s jacket and had pushed the applicant to the ground and had handcuffed him . GPE had then taken the firearm and the local police had confiscated it . He also noted that the applicant had been under the influence of alcohol . He had found out later that the local police had also found a bullet in the car .

In addition , in a report to his superior , which was drafted on DATE , GPE noted that when he had seen the firearm , he had taken it out of the applicant ’s jacket . He added that the applicant had been handcuffed for TIME as he had been behaving aggressively . Lastly , he mentioned that the applicant had agreed to be breathalysed on the spot .

The applicant was first questioned by the inspector of the NORP police on DATE at CARDINAL TIME He submitted that he had been illtreated upon his arrest and said that he was not in a position to make a statement because he felt severe back pain . He mentioned the fact that he had previously undergone spinal surgery . At CARDINAL a.m. the interview was terminated and the applicant was then taken to hospital ( see paragraphs CARDINAL et seq . ) .

During his subsequent questioning by prosecutor PERSON , on DATE ( see paragraph CARDINAL below ) , the applicant maintained his allegation that he had been ill - treated upon arrest .

On DATE an expert commenced the forensic medical examination , which had been ordered on DATE by prosecutor PERSON It appears that it was completed on DATE , when report no . DATE was issued . The examination was based on the applicant ’s medical records from the public and specialist hospitals , as well as his records from ORG ( see paragraphs CARDINAL above ) . It appears that the applicant was not examined in person . The expert concluded that the applicant had not sustained any injuries . In reaching that conclusion , the expert noted that she had not taken into account the first diagnosis made by the specialist hospital that the applicant had “ a hyperextension injury and contusion to the lower back ” ( see paragraph CARDINAL above ) because :

“ [ I]t [ was ] not confirmed by objective clinical symptoms or by visible bodily injuries , but rather was based on the applicant ’s complaints relating to the dislodging of the metal implant following osteosynthesis surgery and [ the dislodging ] can not be regarded as bodily injuries on the grounds of instructions concerning the forensic medical examination . ”

She had also not taken into account the second diagnosis made by the specialist hospital that the applicant had “ a fracture to the LCARDINAL vertebra ” ( see paragraph CARDINAL above ) as it had been an old fracture and had not been connected to the events of DATE , a fact confirmed by a specialist ’s opinion of DATE . It appears that the results of the opinion were not made available to the applicant .

On DATE prosecutor PERSON decided to refuse the institution of criminal proceedings . Her decision was worded as follows :

“ The materials regarding [ the applicant ’s ] complaint that officers GPE and ORG had assaulted him during his arrest on DATE have been separated from the criminal case file .

In their witness statements , GPE and ORG categorically denied that they had assaulted the applicant . None of the officers had assaulted him .

Furthermore , according to forensic report no . DATE , dated DATE , no injuries were found on the applicant ’s body . The fracture to the applicant ’s LCARDINAL vertebra was not taken into account for the purposes of the forensic report , because it was old and was not connected to the injuries of DATE .

In the circumstances , the actions of ORG and GPE do not contain the elements of a criminal offence and there is no basis on which to institute criminal proceedings .

Considering the above , and in accordance with LAW , it is decided :

NORP to refuse to institute criminal proceedings into the applicant ’s allegations of assault on DATE ;

NORP to notify the applicant of this decision . ”

On DATE the ORG police instituted criminal proceedings against the applicant in connection with the illegal acquisition and storage of a firearm . It appears that while at the police station , the applicant was breathalysed for a second time .

On DATE an initial forensic examination of the firearm took place , which had been ordered by the ORG police . CARDINAL further forensic examinations followed in DATE . The examination reports included a note stating that the firearm and a bullet had been confiscated from the car the applicant had been driving . The examinations revealed that there had been no fingerprints on the firearm and that the applicant ’s jacket had not contained any traces of firearm oil , which had been found on the firearm .

On DATE ORG ( PERSON apgabaltiesa ) remanded the applicant in custody . He appealed against the order to no avail .

On DATE the case file was sent to the relevant prosecutor ’s office in GPE ( PERSON rajona prokuratūra ) .

On DATE prosecutor PERSON charged the applicant with the illegal acquisition and storage of a firearm . He denied the charge , saying that the police officers had ill - treated him and had then planted the firearm on him .

On DATE a confrontation took place in which prosecutor PERSON cross - examined the applicant and both traffic police officers ; the applicant ’s counsel was present . ORG maintained statements he had previously made on DATE ( see paragraph CARDINAL above ) . The applicant submitted that during his arrest , GPE had pulled him out of the car by his hand , had pulled his hands behind his back and had pushed him to the ground . When he had tried to turn around , an officer had started kicking him in his shoulders and arms . CARDINAL of the officers had put his feet on his back . He alleged that he had been kicked CARDINAL times . He had told the officers about his disability and had invited them to verify his documents , which had been in his car . CARDINAL of the officers had gone to his car and had found his disability certificate . The other officer , who had remained with his feet on his back , had then kicked him again . Afterwards , he had been ordered to stand up and put on his jacket , which had prior to that been in his car . He had been ordered to empty his pockets and had then felt an object similar to a firearm in his inner left pocket , which he had taken out and immediately dropped on the ground . The officers had then asked him if he had found everything , and he had noticed another object of a rectangular shape in the same pocket , which he had also dropped on the ground , which had turned out to be an ammunition clip ( aptvere ) . He had then been handcuffed , breathalysed and handed over to the ORG police .

On DATE prosecutor PERSON cross - examined the applicant and PERSON , who maintained statements he had made on DATE ( see paragraph CARDINAL above ) ; the applicant ’s counsel was present . The applicant submitted that during his arrest , he had been kicked CARDINAL times in his back and arms , and that CARDINAL of the officers had been standing or kneeling on his back while the other officer had handcuffed him . While in this position , he had made them aware of his disability and CARDINAL of the officers had proceeded to verify his documents . After some time , they had made him stand up and put on his jacket , which had prior to that been in his car . The officers had searched him and he had felt an object similar to a firearm in his inner left pocket , which he had taken out and immediately dropped on the ground . The officers had then asked him if he had found everything and he had noticed another object of a rectangular shape in the same pocket , which he had also dropped on the ground .

On DATE prosecutor PERSON decided to order a forensic medical examination to determine the injuries sustained by the applicant . In her decision , she noted that the applicant ’s statements suggested that the police officers had pulled him out of the car , had pushed him to the ground and had kicked him CARDINAL times in the back , shoulders and arms . In addition , she noted that the applicant had submitted that one of the officers had been standing on the exact spot where he had had his injury . She also noted that the applicant had been CARDINAL disabled and at the time of the arrest had been under the influence of alcohol . The decision to order the forensic examination was received by the competent forensic authority on DATE .

On DATE the applicant was released pending trial in connection with the firearm charge , but was remanded in custody in relation to other charges ( see paragraph CARDINAL below ) .

On DATE prosecutor PERSON decided to separate the applicant ’s allegations of ill - treatment from his criminal case file ( see , as concerns the investigation , paragraphs CARDINAL et seq . above ) . In her decision , she noted that the applicant had been arrested on DATE for a traffic offence , and that the police officers had found a firearm in his jacket pocket . She also noted the applicant ’s submissions about his alleged illtreatment and the fact that the traffic officers had denied the allegations . Lastly , she noted that although a forensic medical examination had been ordered , it had not yet been carried out . As it was her view that the results of the examination would not affect the qualification of the applicant ’s offence , she separated the materials concerning the alleged ill - treatment from the case file and sent them to the NORP police for additional review .

There is no information available as to whether any review was carried out by the ORG police .

On DATE prosecutor PERSON sought the advice of an expert to answer the question “ Would the driver of a ORG CARDINAL driven on wet tarmac at a speed of QUANTITY lose control , if a window is opened , either manually or electronically , to throw something out ? ” The expert concluded that it was possible in both situations , but that it would be more difficult if the window was opened manually , which was less likely to be the case for the model of car mentioned .

On DATE prosecutor PERSON issued the final bill of indictment concerning the firearm charge against the applicant .

On DATE and DATE prosecutor PERSON examined the applicant ’s request for the criminal proceedings against him to be terminated on the grounds that he was innocent , his guilt not having been proven , and because the firearm did not belong to him . She rejected the request on the basis that the applicant ’s guilt had been proven by the case materials in their entirety . There were therefore no grounds to terminate the criminal proceedings .

Meanwhile , on DATE , the LOC police instituted criminal proceedings against the applicant in connection with the bodily injury and rape of a minor girl that had taken place on DATE .

It appears that on DATE the applicant was remanded in custody in connection with those charges .

DATE . On an unspecified date the case was sent to the relevant prosecutor ’s office in GPE ( PERSON pilsētas prokuratūra ) .

On DATE the final bill of indictment was issued concerning the bodily injury and rape charge against the applicant .

A trial took place from DATE to DATE , and on the latter date ORG ( PERSON tiesa ) found the applicant guilty of both ( the firearm and the bodily injury and rape ) charges and , taking into account his state of his health , sentenced him to DATE and CARDINAL months’ imprisonment , into which a previous suspended prison sentence was also incorporated .

As concerns his arrest on DATE , the applicant told the court that he had been fleeing from the police . He submitted that QUANTITY police officers had pulled him out of the car in GPE , had pushed him to the ground and had handcuffed him . While lying down on the ground , he had been kicked hard several times in his back . He then had felt a sharp pain in his back , had told the officers about his disability and had invited them to verify his documents , which they had done . The officers had then made him stand up and put on his jacket , which until then had been lying on the passenger seat . Afterwards , CARDINAL of the officers had ordered him to empty his pockets . He had felt a gun in his pocket and had immediately dropped it on the ground . The officers had then requested all the contents of his pockets to be emptied . When he had felt another object in his pocket , which had turned out to be an ammunition clip , he had dropped that on the ground as well .

As concerns the firearm , the applicant submitted that it had not been his . It had either been planted on him by the police officers in an attempt to evade criminal liability for having assaulted a disabled person , or by someone who had put it in his pocket DATE before ( during the events surrounding the bodily injury and rape charge ) .

The trial court did not give credence to the applicant ’s allegations of ill - treatment by the police officers on the grounds that the forensic examination had concluded that the applicant had not sustained any bodily injuries ( see paragraph CARDINAL above ) .

GPE was the only traffic police officer to give evidence before the trial court and relied on his cross - examination with the applicant ( see paragraph CARDINAL above ) . GPE testified that on pulling the applicant out of the car in PERSON , his jacket had opened and GPE had seen an object similar to a firearm in the applicant ’s inner pocket . For that reason he had been pushed to the ground using force and handcuffs had been put on him . GPE had then taken the firearm out of the applicant ’s inner pocket and had put it on the bonnet of the car . The local police had then been called .

NORP In examining the officer ’s evidence , the trial court found it consistent and unvaried throughout the preliminary investigation and the trial . They further relied on evidence given by an officer of the NORP police during the pre - trial investigation , who stated that when he had arrived at the scene the firearm had been on the bonnet of the car and a bullet had been found inside .

On DATE , following an appeal by the applicant , ORG ( PERSON apgabaltiesa ) upheld the judgment of the trial court .

The applicant subsequently lodged an appeal on points of law , but on DATE this was dismissed by the ORG of ORG ( PERSON tiesas PERSON ) in a preparatory meeting .

From DATE to DATE the applicant was held in FAC located within the grounds of FAC . His medical care during that period is described above ( see paragraphs CARDINAL above ) .

In addition , he was also held in FAC during the following periods :

from DATE ;

from DATE ;

from CARDINAL to DATE ;

from DATE to CARDINAL DATE ;

from DATE to DATE ; and

from DATE .

It appears that between the periods of hospitalisation prior to his conviction , he was detained in the prison itself .

In the meantime , on DATE the applicant ’s lawyer applied to a prosecutor seeking permission for the applicant to be transported from the prison to ORG ( Veselības un darbaspēju ekspertīzes komisija ) . On DATE that prosecutor informed the lawyer that under Regulation of the Cabinet of Ministers no . CARDINAL ( DATE ) , transport to the ORG was only permitted for convicted prisoners . Its doctors were not permitted to visit detainees awaiting trial in FAC .

On DATE the applicant was transferred to FAC to serve his sentence , where he remained until DATE . Upon admission , he requested that he be provided with mobility assistance . He immediately received crutches . By DATE , with the help of a donation by the local ORG , he received a wheelchair .

On DATE the applicant was transferred to ORG to continue serving his sentence . He was held in that prison until DATE , save for a period of DATE when he was in FAC ( see paragraph CARDINAL above ) .

On DATE the local social services in GPE ( MONEY lietu pārvalde ) informed the applicant that a wheelchair had been ordered for him and would be delivered accordingly .

On DATE the applicant was transferred to FAC to continue serving his sentence . He was held in that prison until DATE , save for CARDINAL periods of CARDINAL and DATE respectively when he was in FAC ( see paragraph CARDINAL above ) .

In the prison the applicant was placed in “ the open living area ” ( atklātā dzīvojamā zona ) in a unit for convicted prisoners with health problems . The applicant shared his cell with another inmate .

DATE . The facilities in FAC were adapted for the applicant ’s needs to the following extent :

he was allowed to have his meals delivered to his cell instead of having to go to the canteen ;

he was allowed to attend sauna once DATE at special times ;

DATE from TIME to CARDINAL p.m. he could stay in the open area in his unit and have access to fresh air ;

a ramp was installed so that he could access the outdoor yard ;

toilets were adapted for his needs ;

he was exempted from social work and from DATE checkups ;

the staff of the medical unit visited him in his cell so that he did not need to go to the unit himself .

On DATE a computerised tomography ( GPE ) scan of the applicant ’s spine was carried out at a specialist clinic in Rīga . On CARDINAL further occasions the applicant was examined at a public hospital in GPE .

On DATE the applicant complained to ORG ( NORP cilvēktiesību birojs ) about the conditions of his detention in FAC and the adequacy of his medical support . As he had become paraplegic , he could not access the sanitation facilities ( including the toilets and shower ) , library , shop or meeting and telephone rooms . He was also unable to go outside for walks . The applicant complained that he needed CARDINAL operations , CARDINAL so that he could walk again and the other to remove the metal implant supporting his spine . On DATE his complaint was forwarded to ORG ( PERSON vietu pārvalde ) .

On DATE ORG replied to the applicant and ORG that his complaints concerning the medical unit of ORG were unsubstantiated . The Category CARDINAL disability certificate had been granted to the applicant from CARDINAL DATE to DATE . He had correctly noted himself in his complaint that such surgery could not be performed in GPE . Furthermore , the medication necessary for acute conditions was available in the medical unit of FAC .

On DATE ORG sent ORG a repeated request seeking a comprehensive review of the applicant ’s complaints as it had not been done . In particular , answers were required concerning the applicant ’s medical and social care and social integration in the prison .

On DATE ORG replied , adding to its previous letter that the applicant had failed to approach the medical staff in ORG as concerns the surgery he allegedly needed . It stated that only doctors could ascertain if , where and when the applicant needed surgery and under which circumstances . According to the information in its possession , at that time no real possibility had existed for such surgery to be performed in GPE . At the same time , it had been aware that the operations requested had not been urgent . The applicant had also been advised to actively engage in therapeutic / remedial gymnastics ( ārstnieciskā fizkultūra ) . As concerns his social care , under domestic law there was no such care in prisons for the disabled and , accordingly , the administration of FAC could not appoint someone to assist the applicant . The prison staff did not include social workers . Lastly , it was noted that as far as possible the administration of ORG had facilitated the applicant ’s life in prison , for example , by exempting him from participating in DATE checkups .

On DATE and DATE ORG requested further information from ORG and ORG concerning social care for disabled prisoners .

On DATE ORG informed the applicant that , according to the information provided by ORG , domestic law did not contain any provisions for social care for prisoners with disabilities . However , new regulations concerning the issue were in the process of being drafted .

DATE . On DATE ORG ( Valmieras rajona tiesa ) conditionally released the applicant prior to completion of his sentence ( atbrīvot nosacīti pirms termiņa ) DATE and DATE , on the grounds that he had served DATE of his sentence , had not breached the prison regime ( his disciplinary punishments had been removed ) , had a Category CARDINAL disability and had received a satisfactory reference from the administration of the prison .

It appears that the applicant ’s medical records contain information received from ORG in GPE suggesting that after his release , the applicant had been seen walking around the city of PERSON on his own legs and drinking .

The Convention entered into force on DATE , was signed by GPE on DATE and ratified on DATE . The relevant parts provide :

“ For the purposes of the present Convention :

‘ Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden , where needed in a particular case , to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms ; ... ”

“ CARDINAL . States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process , they are , on an equal basis with others , entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention , including by provision of reasonable accommodation . ”

In Interim Report of DATE ( ORG ) , the then UN Special Rapporteur on torture and other cruel , inhuman or degrading treatment or punishment , Mr PERSON , noted as follows :

“ CARDINAL . ... Persons with disabilities often find themselves in [ situations of powerlessness ] , for instance when they are deprived of their liberty in prisons or other places ... In a given context , the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...

States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities . If such discriminatory treatment inflicts severe pain or suffering , it may constitute torture or other form of ill - treatment . ...

The Special Rapporteur notes that under LAW , paragraph CARDINAL , of the CRPD , GPE have the obligation to ensure that persons deprived of their liberty are entitled to ‘ provision of reasonable ORG . This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others , when such adjustments do not impose disproportionate or undue burden . The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill - treatment and torture . ”

The relevant extracts from ORG ( ORG ( CARDINAL ) CARDINAL ; DATE ) by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) read as follows :

e. Humanitarian assistance

“ CARDINAL . Certain specific categories of particularly vulnerable prisoners can be identified . Prison health care services should pay especial attention to their needs . ”

iv ) prisoners unsuited for continued detention

“ DATE . Typical examples of this kind of prisoner are those who are the subject of a shortterm fatal prognosis , who are suffering from a serious disease which can not be properly treated in prison conditions , who are severely handicapped or of advanced age . The continued detention of such persons in a prison environment can create an intolerable situation . In cases of this type , it lies with the prison doctor to draw up a report for the responsible authority , with a view to suitable alternative arrangements being made . ”

g. Professional competence

“ DATE . To ensure the presence of an adequate number of staff , nurses are frequently assisted by medical orderlies , some of whom are recruited from among the prison officers . At the various levels , the necessary experience should be passed on by the qualified staff and periodically updated .

Sometimes prisoners themselves are allowed to act as medical orderlies . No doubt , such an approach can have the advantage of providing a certain number of prisoners with a useful job . Nevertheless , it should be seen as a last resort . Further , prisoners should never be involved in the distribution of medicines .

Finally , the ORG would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality , both for doctors and for nurses , on the basis of postgraduate training and regular in - service training . ”

Recommendation no . R ( CARDINAL ) CARDINAL of ORG concerning the ethical and organisational aspects of health care in prison , provides , in so far as relevant :

C. Persons unsuited to continued detention : serious physical handicap , advanced age , short term fatal prognosis

“ CARDINAL . Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population . Structural alterations should be effected to assist the wheelchair - bound and handicapped on lines similar to those in the outside environment . ... ”

Recommendation CM / Rec ( DATE ) CARDINAL of ORG on LAW , provides , in particular :

D. Care and assistance

“ CARDINAL . Prison staff shall be sensitive to the special needs of individuals , such as juveniles , women , minorities , foreign nationals , elderly and disabled prisoners , and any prisoner who might be vulnerable for other reasons , and make every effort to provide for their needs .

Prison staff shall ensure the full protection of the health of persons in their custody and , in particular , shall take immediate action to secure medical attention whenever required .

Prison staff shall provide for the safety , hygiene and appropriate nourishment of persons in the course of their custody . They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards , in particular ORG .

Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities , individual interaction and assistance . ”

ORG , adopted on DATE , are recommendations of ORG to member ORG as to the minimum standards to be applied in prisons . States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates . The relevant parts read as follows :

Hygiene

“ CARDINAL.CARDINAL All parts of every prison shall be properly maintained and kept clean at all times .

CARDINAL.CARDINAL When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean .

CARDINAL Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy .

CARDINAL ORG facilities shall be provided so that every prisoner may have a bath or shower , at a temperature suitable to the climate , if possible DATE but at least twice DATE ( or more frequently if necessary ) in the interest of general hygiene .

CARDINAL ORG shall keep their persons , clothing and sleeping accommodation clean and tidy .

CARDINAL The prison authorities shall provide them with the means for doing so , including toiletries and general cleaning implements and materials . ”

The relevant provisions of the former Code of Criminal Procedure ( GPE kodekss ) , in force until DATE , read as follows :

“ A court , prosecutor or investigating authority , in so far as it is within its powers , shall institute criminal proceedings whenever signs of a criminal offence ( noziedzīga nodarījuma pazīmes ) are discovered , using all means laid down in law with a view to discovering any incidence of a criminal offence and the persons responsible for the criminal offence in order to punish them . ”

“ Criminal proceedings may not be instituted , but instituted proceedings shall be terminated : ...

CARDINAL ) NORP if there are no elements of a criminal offence . ... ”

“ An investigating authority , prosecutor , judge or court shall accept material , applications and declarations concerning a criminal offence that has been committed or planned , including in cases which do not fall under its jurisdiction .

In response to the material , applications or declarations received , CARDINAL of the following decisions shall be adopted :

CARDINAL ) NORP to institute criminal proceedings ,

CARDINAL ) NORP to refuse to institute criminal proceedings ,

CARDINAL ) NORP to forward the application or declaration to the competent authority .

Applications and declarations concerning crimes shall be examined immediately , but at the latest within DATE of their receipt . If an expert or audit report or specialist ’s consultation is necessary for such examination , applications and declarations shall be examined at the latest within DATE . ”

“ A copy of the decision to refuse to institute criminal proceedings ... shall be sent to the applicant and those concerned with an explanation of their right to complain about the decision : a decision adopted by an investigating authority to a corresponding prosecutor , by a prosecutor to a higher - ranking prosecutor , by a prosecutor of ORG to ORG , and by a judge to a higher - instance court . ”

“ An individual , the criminal proceedings against whom have been terminated , a victim and his or her representative , as well as an applicant or an institution upon which application the criminal proceedings had been instituted , shall immediately be informed of the termination of the criminal proceedings by a prosecutor or an investigating authority ( izziņas izdarītājs ) , with an explanation of their rights to be acquainted with the decision and with the case materials . ...

Those concerned may lodge an appeal to a higher - ranking prosecutor or , if a decision has been taken by a prosecutor of ORG , to ORG , within DATE of being notified . ”

“ A suspected or an accused individual and their counsel or legal representatives , witnesses , experts , translators , guarantors , as well as a victim , a civil party , a civil respondent , their representatives and other individuals may lodge complaints with a prosecutor about the actions of an investigating authority . The complaints shall be submitted to a prosecutor directly or through the intermediary of the authority against whom the complaint was brought . Complaints may be made either in writing or verbally . In the latter case , the prosecutor or the investigating authority shall write the complaints down in TIME to be signed by the complainant . The complaint submitted to the investigating authority shall be forwarded , together with written explanations by the latter to the prosecutor . ... ”

“ The prosecutor supervising the investigation shall review a complaint within DATE of receipt . A higher - ranking prosecutor shall review a complaint within DATE of receipt , or if further investigation is necessary or additional information has to be requested , within DATE . The complainant shall be informed of the outcome . If the complaint is rejected as unsubstantiated , the prosecutor shall provide reasons and explain the procedure for appeal . An appeal against the decision made by the prosecutor in reviewing the complaint , may be made by the complainant or the investigating authority to a higher - ranking prosecutor . ”

“ Complaints about the actions of a prosecutor shall be submitted to a higher - ranking prosecutor and reviewed in accordance with the procedure laid down in sections CARDINAL and CARDINAL of this Code . ”

Regulation of the Cabinet of Ministers no . CARDINAL ( DATE ) , in force at the material time and effective until DATE , provided as follows :

“ CARDINAL . Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by ORG . In addition , ORG , within its budgetary means , shall provide the convicted persons with :

NORP primary , secondary and tertiary ( in part ) medical care ;

emergency dental care ;

examination of health conditions ;

NORP preventive and anti - epidemic measures ;

medication and injections prescribed by a doctor of the institution ;

medical accessories .

NORP Detained persons shall receive medical care in accordance with LAW , excluding planned inpatient treatment ... Detained persons shall be sent to receive inpatient treatment only in acute circumstances . ”


Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

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

On DATE the GPE am ORG convicted the applicant , inter alia , of repeated rape and of CARDINAL counts of attempted rape , together with dangerous assault respectively , committed against CARDINAL young women he did not previously know and whom he had seriously beaten or injured with weapons , and sentenced him to CARDINAL GPE imprisonment . The court found that owing to a sadistic sexual deviation , the applicant had acted with diminished criminal responsibility .

On DATE the GPE am ORG convicted the applicant of dangerous assault and sentenced him to DATE and CARDINAL months’ imprisonment . It found that the applicant had caused a knife injury to a prostitute who had resisted sexual intercourse with him . It considered that the sadistic sexual deviation the applicant suffered from had not diminished his criminal responsibility .

On DATE the GPE am ORG convicted the applicant , in particular , of CARDINAL counts of rape , sexual assault and assault and of CARDINAL count of attempted rape , attempted sexual assault and assault , committed against CARDINAL drug - addicted prostitutes in DATE . It found that the applicant had raped or attempted to rape the CARDINAL women , had beaten and mistreated them in a torture - like manner and had partly urinated on them or forced them to have obscene photographs taken of them . It sentenced him to DATE and CARDINAL months’ imprisonment and ordered his placement in a psychiatric hospital ( LAW , see paragraph CARDINAL below ) . It considered that the applicant suffered from a serious personality disorder and from a sadistic sexual deviation and had committed his offences with diminished criminal responsibility .

ORG further found that the applicant was liable to reoffend and was therefore dangerous to the public as long as he was not undergoing therapy . The therapy in question was only possible in a psychiatric hospital . The court considered that the conditions for the applicant ’s preventive detention under LAW ( see paragraphs CARDINAL below ) were also met . However , owing to the fact that preventive detention only entailed a person ’s safe custody , without offering any specific medical and psychological treatment , this measure was clearly less suitable in the applicant ’s case than his placement in a psychiatric hospital . Therefore , the court did not order the applicant ’s preventive detention in addition to his placement in a psychiatric hospital .

The judgment became final in DATE and from DATE the applicant was initially detained in a psychiatric hospital in GPE .

On DATE ORG ordered that the applicant serve his prison sentence prior to his continued placement in a psychiatric hospital . It argued that the applicant denied the offences he had been found guilty of and refused to undergo therapy . Furthermore , doubts had arisen as to whether he had actually acted with diminished criminal responsibility .

NORP The applicant was retransferred to prison on DATE and then served his full sentence mainly in FAC .

In DATE an expert , C. , confirmed that the applicant , who suffered from a borderline personality disorder , had originally been wrongly placed in a psychiatric hospital from a present - day perspective .

From DATE the applicant , having served his full sentence , was again detained in a psychiatric hospital , initially in GPE and subsequently in GPE , on an order of the GPE am ORG , based on ORG judgment of CARDINAL DATE . In these proceedings , expert PERSON , who had already examined the applicant prior to ORG judgment in DATE , confirmed that the applicant , an autistic psychopath , had acted with diminished criminal responsibility and that his placement in a psychiatric hospital had therefore been justified .

On DATE ORG terminated the applicant ’s detention in a psychiatric hospital ( Article QUANTITY of LAW , see paragraph DATE below ) . Having heard evidence from another expert , PERSON , it found that the applicant did not suffer from a serious personality disorder or from a sadistic sexual deviation which diminished his criminal responsibility . It further ordered the applicant ’s provisional detention pending the competent court ’s decision whether or not he was to be placed in preventive detention retrospectively as the applicant still had a propensity to commit serious offences . The applicant was accordingly detained in FAC since DATE .

On DATE the GPE am ORG quashed ORG order for the applicant ’s detention . The applicant was released on DATE . Shortly afterwards , he harassed a young woman and threatened her presumed partner .

Following the applicant ’s failure to appear at the hearing before the GPE am ORG on DATE in the proceedings at issue , that court ordered the applicant ’s arrest in order to secure the conduct of the proceedings . The applicant has been in detention since that date , first in FAC and subsequently , since DATE , in FAC .

On DATE the GPE am ORG , relying on Article CARDINAL of LAW ( see paragraph CARDINAL below ) , ordered the applicant ’s preventive detention retrospectively ( nachträgliche GPE ) .

The GPE am ORG found that , in accordance with LAW of LAW , ORG had terminated the applicant ’s placement in a psychiatric hospital on DATE pursuant to Article CARDINAL of LAW as the requirements for placing him in such a hospital had not been met at the time of that court ’s decision . The court further noted that the requirements of LAW ( CARDINAL ) of LAW were met . The order for the applicant ’s placement in a psychiatric hospital had been made in the judgment of the GPE am ORG of CARDINAL DATE convicting him , inter alia , of CARDINAL counts of rape and CARDINAL count of attempted rape and sentencing him to DATE and CARDINAL months’ imprisonment . Moreover , the applicant had already been convicted of rape and sentenced to CARDINAL years’ imprisonment by a judgment of the GPE am ORG of DATE .

ORG further found that a comprehensive assessment of the applicant , his offences and his development during his placement in a psychiatric hospital revealed that it was very likely that , if released , he would again commit serious sexual offences resulting in considerable psychological or physical harm to the victims ( Article CARDINALb § CARDINAL ( CARDINAL ) of LAW ) . It based its findings on the reports submitted by a psychological expert , GPE , and a psychiatric external expert , S. Both experts had considered that the applicant was a psychopath suffering from a serious dissocial personality disorder and from a sexual deviation , sadism . There was a high risk that the applicant would commit further violent sexual offences if released . The experts and all the witnesses confirmed that the applicant had not changed throughout his detention and placement in a psychiatric hospital and had not made any serious effort to reflect on his offences .

On DATE ORG dismissed the applicant ’s appeal on points of law as ill - founded . It found that Article CARDINAL of LAW was compatible with LAW and applied also to cases in which a person ’s placement in a psychiatric hospital was terminated because the person concerned had not been suffering from a disorder warranting his or her placement from the outset .

On DATE the applicant lodged a constitutional complaint with ORG . He complained , in particular , that the retrospective order for his preventive detention had violated the prohibition of retrospective punishment under LAW ( LAW ) . He argued that LAW had been applied with retrospective effect to him as , at the time of his conviction , ordering preventive detention retrospectively had not been authorised . In view of the manner in which preventive detention orders were executed in practice , there was no material difference compared to the execution of a prison sentence . Preventive detention therefore had to be treated as a penalty to which the prohibition of retrospective punishment applied .

The applicant further submitted that the retrospective order for his preventive detention amounted to the correction of a final judgment of a criminal court without any new facts having emerged . Even though the GPE am ORG had considered , in its judgment of DATE , that the requirements of LAW had been met , it had not ordered his preventive detention .

On DATE a chamber of CARDINAL judges of ORG declined to consider the applicant ’s constitutional complaint – as well as that of another applicant , PERSON , who lodged application no . CARDINAL before this Court – on the grounds that it was ill - founded ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

ORG noted that Article CARDINAL § CARDINAL and Article CARDINALb § CARDINAL had been inserted into LAW because , under ORG well - established case - law , a person could no longer be detained in a psychiatric hospital under LAW and had to be released if that person no longer suffered from a condition excluding or diminishing his criminal responsibility . This was considered problematic in cases in which the person concerned , without suffering from the said condition , was still dangerous to the public .

The Federal Constitutional Court found that Article CARDINAL of LAW and the ORG decision to order the applicant ’s placement in preventive detention retrospectively were compatible with LAW . Article CARDINAL of LAW did not breach the ban on the retrospective application of criminal laws imposed by LAW . That Article applied only to ORG measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a sanction to compensate for guilt . Unlike such a penalty , preventive detention was not aimed at punishing criminal guilt , but was a purely preventive measure aimed at protecting the public from a dangerous offender . For the same reason , Article CARDINAL of LAW did not breach the right not to be punished twice for the same offence under LAW .

The Federal Constitutional Court further took the view that LAW was in conformity with the protection of legitimate expectations guaranteed in a ORG governed by the rule of law , even if applied to a case such as that of the applicant , who had committed his offences and had been convicted and sentenced prior to the entry into force of the said provision . It considered as compatible with LAW the legislator ’s decision whereby the effective protection of the public from very dangerous offenders who were liable to commit serious offences resulting in considerable psychological or physical harm to the victims – which was a paramount public interest – outweighed the offender ’s interest in protection of his legitimate expectations .

ORG noted that the impugned provisions allowed the courts in a case like that of the applicant to amend retrospectively a sanction fixed in a previous final judgment in the light of new evidence ( in particular new expert reports ) , without new facts having come up . It emphasised that the sentencing criminal courts’ decision not to order preventive detention became final even if it later emerged that the courts had erred in considering the offender not to be dangerous . Nevertheless , the retrospective preventive detention order under LAW of LAW , read in conjunction with Article CARDINAL of LAW , entailed only very limited disadvantages of constitutional relevance . In substance , the ordering of a measure of indefinite duration depriving the person concerned of his or her liberty DATE namely , placement in a psychiatric hospital DATE was merely replaced , under certain qualified conditions , by the ordering of a different such measure of indefinite duration , namely preventive detention . Any remaining disadvantages for the offender in the protection of his legitimate expectations were outweighed by the paramount interest of the public pursued by the provisions in question .

The Federal Constitutional Court further found that Article CARDINAL of LAW was compatible with the applicant ’s right to liberty under LAW ( LAW ) . In order to protect the right to life , physical integrity and liberty of citizens the legislator was authorised , within the limits set by the principle of proportionality , to deprive of his liberty a person who could be expected to violate the ORG said rights .

In FAC , persons in preventive detention are placed in a separate building from prisoners serving their sentence . They have certain minor privileges compared with convicted offenders serving their sentence ( see , for instance , PERSON GPE , no . CARDINAL , § CARDINAL , ORG DATE ) . As regards therapeutic measures , persons held in preventive detention in PERSON are offered a DATE discussion group proposing ideas for recreational activities and for structuring DATE life . They are further offered discussions with an external psychiatrist once per DATE as well as psychological or psychotherapeutic measures and social training considered suitable for them .

When placed in preventive detention , the applicant was not motivated to undergo therapy . He denied the offences he had been convicted of and considered himself to be detained unlawfully . Therefore , he had not been transferred to a social therapeutic department of another prison . He worked in prison in DATE and has been out of work since then . In DATE he participated in a social training course .

On DATE ORG dismissed the applicant ’s request to suspend the execution of his preventive detention and to grant probation .

On DATE the GPE am ORG dismissed the applicant ’s appeal against that decision . It found that there was a risk that the applicant would commit further violent sexual offences if released ( Article CARDINAL § CARDINAL of LAW ; see paragraph CARDINAL below ) . Having regard to this ORG ’s judgment in the case of PERSON GPE ( cited above ) , ORG took the view that the question of whether the applicant ’s preventive detention breached the prohibition of retrospective punishment could not be examined in the present proceedings concerning the execution of the applicant ’s preventive detention . That issue could only be dealt with following a reopening of the proceedings in which that detention had been ordered .

Following ORG judgment of CARDINAL DATE ( see paragraphs CARDINAL below ) , the applicant again requested ORG to order his release . On DATE ORG refused to suspend the applicant ’s preventive detention , ordered retrospectively on DATE , and to grant probation . Having regard to the expert reports obtained in those proceedings , it found that it could not be expected that the applicant would not commit any further unlawful acts on his release ( Article CARDINAL § CARDINAL of LAW ) . There was , on the contrary , a risk that the applicant , owing to specific circumstances relating to his person and his conduct in prison , would commit the most serious crimes of violence or sexual offences soon after his release from prison . The stricter standards for a prolongation of his preventive detention set up by ORG in its judgment of CARDINAL DATE were therefore met .

ORG considered , in particular , that according to the pertinent findings of ORG in the said judgment , a retrospective order of preventive detention following the termination of a person ’s placement in a psychiatric hospital did not breach the protection of legitimate expectations guaranteed in a ORG governed by the rule of law or the prohibition of retrospective punishment . As the judgments of ORG only had the force of Federal legislation in GPE , the fact that that ORG had considered , in its judgment of CARDINAL DATE , that retrospective preventive detention was in breach of human rights , did not alter that conclusion .

On DATE the GPE am ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal .

On DATE ORG dismissed the applicant ’s request of DATE for a reopening of the proceedings in which his preventive detention had been ordered as inadmissible as there was currently no ground for reopening . In particular , a reopening on the ground that ORG had found a domestic court ’s judgment to be in breach of the LAW applied only to applicants who had themselves obtained a judgment of that ORG in their favour .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , ECHR DATE ) . A summary of the provisions of LAW the right to liberty ( LAW ) and the ban on retrospective application of criminal laws ( LAW ) can also be found in that judgment ( ibid . , LAW and DATE ) . The provisions referred to in the present case provide as follows :

Measures of correction and prevention ( see Articles CARDINAL et seq . of LAW ) cover , in particular , placement in a psychiatric hospital ( LAW ) or in preventive detention ( LAW ) .

Article CARDINAL of the Criminal Code governs orders for a person ’s preventive detention made by the sentencing court when finding the person guilty of an offence . That court may , at the time of the offender ’s conviction , order his preventive detention ( a so - called measure of correction and prevention ) under certain circumstances in addition to his prison sentence ( a penalty ) , if the offender has been shown to be a danger to the public .

NORP In particular , under LAW , in its version in force at the relevant time , the sentencing court had to order preventive detention in addition to the penalty if someone was sentenced for an intentional offence to PERCENT two years’ imprisonment and if the following further conditions were satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence ( LAW ( CARDINAL ) ) . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE ( LAW ( CARDINAL ) ) . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( LAW ( CARDINAL ) ) .

Under LAW , first sentence , of LAW , preventive detention may further be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences , including murder , rape and dangerous assault , to DATE imprisonment , if he has previously been convicted ( only ) once of CARDINAL or more such offences to CARDINAL GPE imprisonment and if the remaining requirements laid down in LAW ( CARDINAL ) and ( CARDINAL ) are met .

Article CARDINAL of the Criminal Code governs the combination of different measures of correction and prevention . If the conditions for several such measures are met , yet the desired objective may be attained by one or a part of these measures , then only those latter measures shall be ordered ( see Article CARDINAL § CARDINAL ) . Otherwise , such measures shall be ordered cumulatively unless the law provides otherwise ( Article CARDINAL § CARDINAL ) .

The Retrospective Preventive Detention Act ( Gesetz zur Einführung der nachträglichen GPE ) of DATE , which entered into force on DATE , inserted Articles CARDINALb and QUANTITY into LAW ; the latter provision was amended by LAW of DATE . The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under LAW were no longer met , but who were still dangerous to the public ( see ORG documents ( ORG ) , no . CARDINAL , pp . CARDINAL , CARDINAL ) .

In fact , under the case - law previously established by the courts dealing with the execution of sentences , a person ’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered from a condition excluding or diminishing his criminal responsibility , even if that person was still dangerous to the public ( see ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of CARDINAL DATE , ORG für ORG ( ORG ) DATE , p. CARDINAL ; ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of DATE , ORG für PERSON ( ORG ) DATE , p. CARDINAL ; ORG , no . CARDINAL StR CARDINAL/CARDINAL , judgment of DATE , Collection of decisions of ORG in ORG ( BGHSt ) no . CARDINAL , p. CARDINAL ; see also ORG , CARDINAL . CARDINAL BvR CARDINAL/CARDINAL and DATE , decision of DATE , ORG ( ORG ) DATE , p. CARDINAL ; and ORG , no . CARDINAL StR CARDINAL/CARDINAL , decision of CARDINAL DATE , LAW with further references ) .

Article CARDINALb § CARDINAL of LAW , in its version in force at the relevant time , provided :

“ ( CARDINAL ) NORP If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article CARDINAL § CARDINAL because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement , the court may order preventive detention retrospectively if

NORP the placement of the person concerned under LAW was ordered on the basis of several of the offences listed in LAW , first sentence , or if the person concerned had either already been sentenced to CARDINAL years’ imprisonment or had been placed in a psychiatric hospital because of CARDINAL or more such offences , committed prior to the offence having led to that person ’s placement under LAW , and

a comprehensive assessment of the person concerned , his offences and , in addition , his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims . ”

Article CARDINAL CARDINAL of LAW provides :

“ ( CARDINAL ) NORP If , after enforcement of an order for placement in a psychiatric hospital has started , the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate , it shall declare the measure terminated . The release of the person concerned from the psychiatric hospital shall entail supervision of his or her conduct . ... ”

The said CARDINAL provisions remained valid also under LAW ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of DATE , which entered into force on DATE , for offences committed after the entry into force of that LAW . As a result of the abolition of paragraphs CARDINAL and CARDINAL of Article CARDINALb of LAW , the former paragraph CARDINAL , slightly amended , became the only provision of that Article .

Article GPE of the Criminal Code governs the duration of preventive detention . Paragraph CARDINAL , first sentence , of that LAW provides that if there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release .

Article CARDINAL of the Criminal Code governs the detention of mentally ill persons as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned . It provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility , the court shall order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that , as a result of his condition , he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public .

On CARDINAL DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period and also concerning the retrospective order for a complainant ’s preventive detention under LAW of LAW ( file FAC . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) . Reversing its previous position , ORG held that all provisions concerned , both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention , were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .

The Federal Constitutional Court further held that all the relevant provisions of LAW on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention . It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE and LAW in its version of DATE .

ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the latest . In relation to detainees whose preventive detention had been prolonged or ordered retrospectively under LAW of LAW ( but not preventive detention ordered LAW ) , the courts dealing with the execution of sentences had to examine without delay whether the persons concerned , owing to specific circumstances relating to their person or their conduct , were highly likely to commit the most serious crimes of violence or sexual offences and if , additionally , they suffered from a mental disorder within the meaning of section CARDINAL § CARDINAL of the newly enacted Therapy Detention Act . As regards the notion of mental disorder , ORG explicitly referred to the interpretation of the notion of “ persons of unsound mind ” in LAW sub - paragraph ( e ) of the LAW made in this ORG ’s case - law ( see § § CARDINAL and CARDINAL - CARDINAL of ORG judgment ) . If the above pre - conditions were not met , those detainees had to be released DATE . The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality ; as a general rule , proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released .

In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ; see § § CARDINAL ss . of ORG judgment ) . It stressed , in particular , that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in LAW required an individualised and intensified offer of therapy and care to the persons concerned . In line with the ORG ’s findings in the case of PERSON GPE ( cited above , § CARDINAL ) , it was necessary to provide a high level of care by a team of multi - disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success ( see § CARDINAL of ORG judgment ) .