The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She is represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , Mr PERSON of ORG .

The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .

On DATE ORG ( kuntien eläkelautakunta , kommunernas pensionsnämnd ) dismissed the applicant ’s application for a disability pension from DATE .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) quashed the decision and remitted the case for fresh examination .

On DATE ORG ( kuntien eläkevakuutus , kommunernas pensionsförsäkring ) issued a new decision granting the applicant a disability pension from DATE based on her inability to work since DATE , i.e. it did not grant her a pension for the period DATE to CARDINAL DATE .

The applicant appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) , which upheld the decision on DATE .

On DATE the applicant applied again for a disability pension from DATE to DATE . On DATE ORG upheld its previous provisional decision of DATE , according to which the applicant was granted a disability pension only from CARDINAL DATE .

The applicant appealed to ORG , maintaining that she had been unfit to work from DATE and requesting a disability pension from DATE with interest . She relied on a medical doctor ’s statement of CARDINAL DATE ( according to which she had been unfit to work from DATE ) and an ORG - report of DATE . ORG submitted its observations and the applicant submitted her observations in reply . On DATE ORG dismissed the appeal , maintaining that the applicant ’s working capacity prior to DATE had not been reduced to an extent entitling her to a disability pension .

The applicant appealed further to ORG , repeating her contention about the date of her inability to work and appending , inter alia , a medical doctor ’s statement of DATE ( in which she was regarded as unfit to work from DATE , and which , inter alia , described her finger problems ) . ORG submitted its observations and the applicant submitted her observations in reply . On DATE ORG dismissed the appeal , giving the following reasons :

“ The reasons are mentioned in ORG decision . The presented evidence doest not warrant a different conclusion as regards the assessment of [ the applicant ’s ] capacity for work . ”

On DATE the applicant applied again for a disability pension from DATE maintaining her unfitness to work from CARDINAL DATE . She appended a medical doctor ’s report of DATE . On DATE ORG , having examined the application in the light of the fresh medical report , dismissed it , maintaining that there was no new evidence which justified any different conclusion as regards the date of her incapacity to work .

The applicant appealed to ORG , repeating her previous requests and claiming interest , reimbursement of her appeal costs and an oral hearing and also relying on LAW . She identified herself and CARDINAL medical doctors ( PERSON and PERSON , or alternatively PERSON ) as witnesses and specified the topics for their proposed testimony . She relied on CARDINAL medical ORG statements of DATE and DATE respectively , a copy of a scientific article and CARDINAL copies of a doctoral thesis . ORG submitted its observations and the applicant submitted her observations in reply . On DATE ORG dismissed the appeal . It held :

“ On DATE ORG found that your working capacity has been reduced to an extent entitling you to a disability pension from DATE . Based on the newly presented medical evidence your disability to work can not be regarded as having begun earlier than CARDINAL DATE . Your request for a disability pension from DATE with interest has consequently been dismissed .

As regards an oral hearing , ORG finds , based on the presented medical and other evidence , that it is not necessary to hold one . ”

The applicant appealed further to ORG claiming a disability pension from DATE with interest , reimbursement of her appeal costs and an oral hearing . She complained that ORG had taken into account the medical doctor ’s statement of DATE although she had expressly stated in her observations in reply that she would not submit the statement in question . She complained that ORG had apparently invited the statement of its own motion and that she had not been given an opportunity to present her observations on that statement . She also complained about the allegedly inadequate reasoning of ORG , in particular as regarded the problem with her fingers , so - called limited joint mobility . She further pointed out that there had been a typing error as regards the date of her disability to work . She proposed herself and CARDINAL medical doctors ( PERSON and PERSON ) as witnesses for an oral hearing and specified that she would testify about her illnesses and inability to work from DATE or DATE and the effect of her finger problems on her working capacity , and that the doctors were to be heard concerning the date of the applicant ’s incapacity to work and , in particular , the effects of her finger problems .

ORG received medical ORG statements of DATE , DATE , DATE and DATE respectively . ORG submitted its observations and the applicant submitted her observations in reply . On DATE the court dismissed the appeal without an oral hearing . It reasoned , inter alia :

“ Based on the available documents , [ the medical doctor ’s ] statement of DATE arrived at ORG from ORG on DATE together with the applicant ’s appeal . Consequently , ORG did not invite the statement in question and has therefore not acted erroneously as claimed by the applicant . ”

As regards the requested oral hearing it reasoned :

“ ... Proceedings before ORG are normally in writing . ORG must hold an oral hearing if requested by a private party . A case may however be examined without an oral hearing if ... it is manifestly unnecessary due to the nature of the matter or other reasons . If a party requests an oral hearing he or she must indicate the reasons why it would be necessary and what kind of evidence he or she would present at the hearing . The lack of necessity for an oral hearing is assessed on the basis of these grounds and a hearing may be dispensed with if it is highly likely that it would not be useful . An oral hearing concerning subjective medical hardships is usually unnecessary provided that there is proper and adequate written medical evidence at hand .

The case concerns the question whether [ the applicant ] was ... unfit to work before DATE . The same issue has been examined in written proceedings before . ORG finds that [ the applicant ’s ] subjective views have already been adequately established in the prior examinations , and that hearing her for this reason is therefore unnecessary , taking into account in particular the lapse of time .

It appears from the documents that ... PERSON has personally attended to [ the applicant ] from DATE . ... L. met [ the applicant ] for the first time on DATE . The heading of L. ’s medical statement of CARDINAL DATE reads : ‘ A specialist ’s statement and summary for ORG , based on documents and CARDINAL meeting with the patient.’ Both medical ORG opinions are therefore based on what [ the applicant ] had told them and on an assessment of documents , which means that they can not give a valuation based on their personal examination about the applicant ’s state of health at the relevant time . ORG has apparently had at its disposal similar documentary evidence as they did . In these circumstances written evidence is regarded as sufficient . There is a medical doctor in the composition of ORG , which guarantees sufficient expertise on medical questions .

ORG finds that the hearing of PERSON and L. about their conclusions concerning [ the applicant ’s ] working capacity based on written material is unnecessary , taking into account the ORG composition and the fact that their observations are apparent from their written statements . ... ”

As regards the subject - matter of the appeal , the court held :

“ The reasons are mentioned in ORG decision . ORG however corrects the date of CARDINAL DATE to CARDINAL DATE . The presented new evidence does not give rise to different conclusions about the applicant ’s working capacity . In addition , ORG notes the following : In the previous proceedings in the matter , which have taken place closer in time to the disputed events , the alleged finger problem has not been raised in the pension applications , appeals or other documents , and its importance to the applicant ’s working capacity has not been identified as significant in the previous medical ORG statements . The newly presented evidence ... does not warrant a conclusion that the applicant was unfit to work during the time mentioned in the application either . ”

At the time of the first CARDINAL sets of proceedings the procedure in ORG and ORG was written . When there were exceptional reasons , the court could however decide to hold an oral hearing . As to the third set of proceedings , ORG and ORG were under a Convention obligation to hold a public hearing . If not otherwise provided by an LAW , the Administrative Judicial Procedure Act ( hallintolainkäyttölaki , förvaltningsprocesslagen ; Act no . ORG ) applies to proceedings before ORG and ORG . They must hold an oral hearing when necessary for the purposes of establishing the facts of the case . The parties , witnesses and experts may be heard and other evidence received in an oral hearing . ORG must hold an oral hearing if a private party so requests , unless a hearing is manifestly unnecessary in view of the nature of the matter or for another reason ( sections CARDINAL and DATE ) .

The compositions of ORG and ORG include a medical doctor in cases where medical assessment is necessary ( section CARDINAL of the then ORG ( kunnallisten viranhaltijain ja työntekijäin eläkelaki , lagen om pension för kommunala tjänsteinnehavare och arbetstagare ) and section CARDINAL of the then LAW ) .

Everyone is entitled to have his or her case examined before a public authority without undue delay ( section CARDINAL of LAW ( perustuslaki , grundlag ; Act no . CARDINAL/CARDINAL ) . A decision must be reasoned ( section CARDINAL(CARDINAL ) of LAW ( NORP perustuslaki , PERSON grundlag ; GPE ) . At the relevant time LAW , LAW ( PERSON ) of LAW ( oikeudenkäymiskaari , rättegångsbalken ) provided that a judgment must be reasoned , indicating the facts and the legal argumentation on which it was based and the grounds which have led the court to hold a disputed issue established or unsubstantiated .


András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Riza Türmen;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in LOC . At the time of the events he was employed by GPE and GPE

In DATE the applicant was injured in an occupational accident and lost the third and fourth fingers of his left hand .

On DATE the applicant filed an action for compensation before ORG of First Instance against GPE , ORG and CARDINAL other individuals who were allegedly responsible for the accident .

On DATE , an expert report assessing the extent of the damage suffered by the applicant was submitted to the court .

On DATE the applicant lodged another case with the same court , claiming further damages . These CARDINAL procedures were later joined .

On DATE ORG of First Instance decided that it did not have jurisdiction to examine the applicant 's case .

On DATE the defendants appealed against this decision .

On DATE ORG upheld the decision .

NORP On DATE the case was resumed before ORG .

The first hearing was held on DATE . The court requested a report regarding the applicant 's disability .

On DATE and DATE , the court postponed the scheduled hearings as the report requested on DATE had not yet been submitted .

On DATE the report was submitted to the court . At the same hearing the court requested all the medical reports regarding the applicant . Furthermore , it requested that the applicant be re - examined by ORG .

The court held QUANTITY hearings after DATE , the last of which was on DATE .

According to the information in the case file , as submitted by the parties , the proceedings are apparently still pending before ORG .


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG by Ms PERSON and PERSON , lawyers practising in GPE .

On DATE the applicant ’s DATE daughter went into labour after a normal pregnancy . At TIME she was admitted to the maternity ward of FAC in GPE and , following an episiotomy , gave birth to a healthy baby boy at TIME

Following the delivery , she repeatedly complained to her parents and the hospital staff about intense pain in the perineum . She was unable to care for the baby . It appears that she behaved unusually as she lost interest in the baby and attempted to leave the hospital .

According to the applicant , TIME following the delivery the level of his daughter ’s white blood cells considerably decreased and she suffered from low blood pressure , low temperature , intense pain , incoherent speech and temporary loss of consciousness . The applicant submits that the hospital staff did not react to those symptoms and did not administer any treatment .

On DATE the applicant ’s daughter was transferred to the intensive care unit . On the following day the hospital contacted her parents to inform them that her condition was very serious . On DATE she died .

On DATE the applicant filed a criminal complaint with ORG . The prosecutor instituted an investigation into the case of unintentional homicide of the applicant ’s daughter ( LAW ) .

On DATE an autopsy was carried out . It established the presence of streptococcus A bacteria in the body of the applicant ’s daughter . No such bacteria had been found at the hospital following the examination of the medical personnel and the hospital premises .

Upon the applicant ’s request , ORG carried out a control of the hospital on CARDINAL , DATE and DATE . It established that the bacteria at issue had not been found in any of the patients who had shared the room with the applicant ’s daughter , or in any of the hospital staff who assisted at the delivery , nor on the hospital LOC . The inspectors identified a number of shortcomings at the hospital , such as overcrowding of the maternity ward , but concluded that none of these shortcomings could have led to the applicant ’s daughter being infected with the bacteria .

On DATE ORG ordered that an expert in hospital infections prepare a report for the purposes of the investigation . The report , which took into account the medical notes of the applicant ’s daughter , the results of the control carried out by ORG and the records of witnesses’ interviews , was submitted on DATE .

The expert found that the death had almost certainly resulted from sepsis and the related Multiple organ dysfunction syndrome ( MODS ) caused by a streptococcus A. That bacterium , which had been identified in the body of the applicant ’s daughter on DATE , created very dangerous toxins which led to sepsis carrying a particular risk of fatality . The infection most likely originated from the perineum and the bacteria had already been present there before the delivery . The probability that the bacteria was transmitted from the hospital environment had been lower that PERCENT . All factors pointed to the probability that the applicant ’s daughter had been infected prior to her admission to the hospital . In particular , no other patients had been infected and the bacteria had not been present in the hospital environment . The expert excluded the possibility that the infection had resulted from medical negligence of the hospital staff .

As regards the medical treatment , the expert established that the actions of the doctors had been adequate with respect to the condition of the patient and compatible with medical science . They could be reproached for their lack of reaction during the first TIME ; however the sepsis had developed in a particular manner , namely without any accompanying fever . There were no other symptoms suggesting a developing infection and the applicant ’s daughter had complained about pain in the perineum , which was typical following a delivery . Furthermore , the applicant ’s daughter took – without consulting the doctors – excessive doses of paracetamol which could have disguised the infection and caused paracetamol toxicity . Following the diagnosis of infection , the medical treatment administered was comprehensive and adequate and the hospital staff had acted with the requisite diligence .

NORP In the course of the investigation the prosecutor also heard members of the medical personnel , fellow patients and friends who had visited the applicant ’s daughter .

On DATE the Warsaw - Praga Północ District Prosecutor discontinued the investigation , finding that the offence of unintentional homicide had not been committed . Having regard to all the evidence and , in particular , the expert report , the prosecutor found that the death of the applicant ’s daughter had not resulted from medical negligence . The hospital staff had administered adequate and appropriate treatment for her condition and had not , in any degree , contributed to her death .

On DATE the applicant ’s lawyer appealed . She pointed out that CARDINAL important witnesses , namely the head of the obstetrics department and the doctor who had supervised the applicant ’s daughter , had not been heard . The prosecutor failed to establish whether other women had been infected with the same bacteria in the hospital despite the fact that the applicant had provided him with details of a woman who had been so infected . The applicant ’s lawyer also contested the findings of the expert . In particular , she averred that the response of the medical personnel to the deteriorating condition of the applicant ’s daughter within TIME had been inadequate and limited to administering pain killers . Furthermore , the expert had not addressed the fact that not all of the doctors , midwives and nurses working at the obstetrics department had been tested for the bacteria . The expert had wrongly assessed the evidence and had erred in concluding that there had been no medical error on the part of the hospital staff . Consequently , the prosecutor ’s decision that the death of the applicant ’s daughter had not resulted from the actions of the medical personnel had been erroneous and needed to be revisited . The applicant filed his own appeal .

On DATE the GPE ORG upheld ORG decision of DATE . It held that the prosecutor had obtained sufficient and relevant evidence and had assessed it correctly . Similarly , there were no grounds to contest the prosecutor ’s factual findings or his legal assessment of the case .

The court found that the appeals had not put forward any arguments which could have resulted in the quashing of the decision . More specifically , it held that the allegations of the ORG ’s decision was based on the ample evidence obtained from the hospital staff ( doctors and nurses ) and the fellow patients , and , in particular , on the results of the autopsy and the expert report . The expert concluded , with the probability nearing on certainty , that the death had resulted from sepsis and the related MODS caused by a streptococcus A bacteria . The infection had not originated from the hospital environment and had not been caused by medical negligence . As regards the treatment administered to the applicant ’s daughter both during and following her labour , the expert considered it adequate and appropriate . The court , despite the applicant ’s misgivings , found no grounds to contest the reliability of the expert report . Furthermore , it considered that the alleged prosecutor ’s failures to obtain additional evidence proposed by the applicant would not in any event change the conclusion of the investigation .

LAW provides that a person who unintentionally causes the death of a human being shall be sentenced to a term of imprisonment DATE .


Violation of Art. 5-1;Violation of Art. 8;Remainder inadmissible

Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE . He is the head of ORG .

It transpires from a certificate issued by an official of the Volgo - Vyatskiy Interior Department of Transport on DATE that on DATE the applicant ’s name was registered in a so - called “ Surveillance Database ” ( “ GPE контроль ” ) . An extract from the list of persons registered in that database shows that the applicant ’s name is mentioned in the section entitled “ FAC ” .

The Surveillance Database contains information about skinheads , human rights activists and other persons allegedly involved in extremist activities . Whenever a person mentioned in the database purchases a train or aeroplane ticket ORG receives an automatic notification .

An GPE - Russia Summit was scheduled for CARDINAL and CARDINAL DATE in PERSON .

On DATE the ORG sent a telex to its local branches informing them that protest rallies by several opposition organisations were planned for CARDINAL DATE . To prevent unlawful and extremist acts it was necessary , in accordance with LAW and Order no . CARDINAL , On certain measures intended to strengthen the fight against extremism , issued by ORG on DATE , to detect and stop all members of those organisations travelling to PERSON DATE . In particular , it was necessary to separate the travellers and dissuade them from going to PERSON .

On an unspecified date the applicant bought a train ticket to PERSON for CARDINAL DATE and a return ticket for CARDINAL DATE .

On CARDINAL DATE the ORG sent a telex to its local branches informing them that the applicant intended to travel to PERSON in connection with the GPE - Russia Summit . It also communicated his train reservation details . Another telex sent on DATE by ORG indicated that the applicant was travelling to PERSON to take part in the opposition rally “ DATE of dissent ” and might be carrying extremist literature .

On DATE , as soon as the applicant mounted the train at GPE station , CARDINAL policemen entered his compartment , checked his identity documents and asked him questions about the purpose of his trip .

At GPE station ( GPE ) another identity check was conducted and the applicant was again questioned about the purpose of his trip . The policemen ordered the applicant to leave the train and follow them to the police station , but the applicant refused to comply . In DATE of CARDINAL DATE , immediately after the train entered the GPE region , the applicant ’s identity documents were checked for a third time .

When the applicant got off the train in PERSON he was stopped by the police . The policemen checked his identity documents and took him to the police station , saying that it was necessary to look up his name in the police databases . They threatened to use force if the applicant refused to comply with their order .

The police drew up an attendance report , using a standard template entitled “ Attendance report in respect of a person who has committed an administrative offence ” . The phrase “ who has committed an administrative offence ” was struck through by the police officer who filled in the template . The report indicated that the applicant was brought to the police station on DATE at TIME It was mentioned that he had been stopped on account of information received in telexes nos . TP CARDINAL and CARDINAL/CARDINALTCARDINAL of CARDINAL DATE . He was questioned about the purpose of his trip and his acquaintances in PERSON . He was released on DATE at TIME

It follows from the submissions by the police officer who escorted the applicant to the police station that he had received information from his superiors that the applicant intended to participate in an opposition rally and might be carrying extremist literature . He had stopped the applicant and escorted him to the police station in order to prevent him from committing administrative and criminal offences . He had warned the applicant that if he refused to comply , force would be used . He had asked the applicant questions about the purpose of his visit to PERSON . The applicant had denied involvement in any extremist activities . He had not been searched because he had no luggage and it was clear that he was not carrying any extremist materials .

The applicant lodged complaints with the prosecutor ’s offices of ORG GPE , GPE and GPE .

On DATE ORG refused to initiate criminal proceeding against the policemen who had questioned the applicant in PERSON , finding that the applicant had voluntarily submitted to the identity check and questioning .

On DATE ORG ( GPE ) refused to initiate criminal proceedings against the policemen who had allegedly questioned the applicant at GPE station . It found that on CARDINAL DATE the NORP police station had received telex no . CARDINAL from the Volgo - Vyatskiy Interior Department of Transport , containing information that the applicant was going to PERSON by train with the intention of taking part in an opposition rally and that he was suspected of carrying extremist literature . The police had searched the train but could not find the applicant .

On DATE ORG refused to open criminal proceedings against the policemen who had stopped the applicant in PERSON . The prosecutor ’s office found that the policemen had acted lawfully , in accordance with sections CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below ) . In particular , they had received information ( telex no . CARDINAL ) about the applicant ’s intention to participate in an opposition rally . There had therefore been reasons to believe that he might be involved in the commission of administrative offences , and it had been necessary to stop him and bring him to the police station .

On DATE the applicant brought an action against the ORG before LOC of PERSON . He claimed that the telexes sent by the Volgo - Vyatskiy Interior Department of Transport to the local offices , requiring them to stop the applicant , check his identity documents and question him , had been unlawful for the following reasons :

- There had been no reason to check his documents or question him , as the police already had information about his identity , and the date and time of his arrival in and departure from PERSON ;

- There could be no suspicion of his intention to engage in any unlawful activities as , firstly , the rallies in PERSON had been duly authorised by the town council and , secondly , he had planned to leave PERSON before the date scheduled for the rallies ;

- His name had been entered in the police database unlawfully , without prior judicial authorisation .

He further complained about his allegedly unlawful arrest and TIME detention at the police station in PERSON . He claimed that all the above actions had violated his right to respect for private life and his right to liberty and security , and had interfered with his human rights activities .

The Kanavinskiy District Court declared the application inadmissible , finding that the applicant had failed to submit supporting documents . This decision was subsequently quashed by ORG and the case was remitted to ORG .

At the hearing the representative of the Volgo - Vyatskiy Interior Department of Transport testified that the applicant ’s name had been registered in ORG following an order from ORG of ORG . The police had therefore been entitled to take measures against him as specified in LAW and LAW . As to the identity checks in GPE and PERSON , the Volgo - Vyatskiy Interior Department of Transport had no territorial jurisdiction over these local police offices .

At the applicant ’s request ORG of ORG was joined as a co - respondent to the proceedings . Its representative informed the court that commission of criminal or administrative offences by a person was not a prerequisite for inclusion of his name in ORG . The applicant ’s name had been registered in that database on the basis of confidential information .

On CARDINAL DATE ORG dismissed the application . It found that LAW § CARDINAL of LAW and sections DATE , CARDINAL and QUANTITY ( b ) and CARDINAL of ORG ( see paragraphs CARDINAL to CARDINAL below ) gave the police powers to check documents and question citizens in certain cases . In the applicant ’s case the identity checks and the questioning had been justified by the fact that his name was registered in ORG . The applicant had voluntarily replied to the questions asked by the police officers . No force or coercion had been used against him by the police officers in GPE . The Volgo - Vyatskiy Interior Department of Transport was not liable for the measures taken against the applicant by the police officers in GPE and GPE [ the domestic court apparently meant PERSON region ] , as it had no territorial jurisdiction over those regions . Finally , the court rejected the applicant ’s request for an injunction to the ORG to delete his personal data from the police databases . The court found that the applicant ’s personal data had been collected by ORG of ORG rather than by the ORG .

The applicant appealed , complaining in particular about insufficient reasoning . He submitted that ORG had failed to give detailed answers to all his arguments .

On DATE the ORG upheld the judgment on appeal , endorsing the reasoning of ORG .

On DATE the applicant challenged the decision to register his name in ORG before LOC of PERSON . He alleged , in particular , that that decision interfered with his right to respect for private life because it permitted the police to collect information about his trips . He was also regularly questioned by the police about the purpose of his trips , his income , his acquaintances and his political opinions . That interference was not necessary in a NORP society . Firstly , ORG orders governing the creation and functioning of ORG had not been published . Society did not know the procedures for its operation . According to the media , the database contained the names of CARDINAL persons , the majority of whom were members of human rights and opposition groups . Secondly , the decision to register his name in the database had been arbitrary . He had never been suspected of any criminal or administrative offences , had never been involved in extremist activities and had never supported or called for violence . The registration of his name in the database was apparently connected with his human rights activities and his participation in opposition rallies . He also complained of a violation of his right to liberty . He had been unlawfully stopped by the police several times on the sole ground that his name was registered in FAC .

On DATE the ORG dismissed the applicant ’s claims . It noted that the applicant ’s name had been deleted from the database in DATE . It continued as follows :

“ The court considers that ORG of ORG had grounds for registering [ the applicant ’s ] name in ORG . It follows from [ the ] letter by a deputy head of ORG of ORG of GPE that ORG pursues the aim of collecting information about the purchase by the persons listed in it of travel tickets to places [ where ] mass events [ are planned ] . Thus , ORG does not interfere with the private lives of those listed as [ the database ] contains only data on their trips in connection with their professional or public activities . The registration of a person ’s name in the Surveillance Database can not be considered as breaching his / her rights or freedoms or hindering the exercise of such rights and freedoms or imposing an unlawful obligation or liability .

... [ the applicant ] is the representative of ORG , a public activist and the head of ORG . He organises round tables and seminars for human rights activists . In connection with his public activities he travels to many NORP towns . Thus , in DATE he travelled to PERSON with the aim of investigating the restrictions on public assemblies during the GCARDINAL summit in the LOC region . The court considers that , taking into account [ the applicant ’s ] public activities , ORG of ORG was entitled to register his name in ORG because , in accordance with section CARDINAL § CARDINAL of LAW , when discharging their duties the police may require citizens and officials to provide explanations , information or documents ... ”

The Administrative Offences Code provides that a police officer may escort an individual to the police station by force for the purpose of drawing up a report on the administrative offence provided that it is impossible to do it at the place where that offence has been detected . The individual must be released as soon as possible . The police officer must draw up an “ attendance report ” or refer to the fact of escorting the individual to the station in the report on the administrative offence . The individual concerned must be given a copy of that report ( section QUANTITY ) , CARDINAL and CARDINAL ) .

In exceptional cases a police officer may arrest an individual for a short period if it is necessary to ensure a correct and prompt examination of the administrative case and secure enforcement of the eventual penalty ( Article CARDINAL.CARDINAL § CARDINAL of the Code ) . The duration of such administrative arrest must not normally exceed TIME ( Article QUANTITY of the Code ) . The arresting officer must draw up “ an administrative arrest report ” ( Article CARDINAL of the Code ) .

LAW of DATE ( No . CARDINAL-I ) provides that the tasks of the police are , inter alia , the prevention and suppression of criminal and administrative offences and protection of public order and public safety ( section CARDINAL ) . Their duties include the prevention and suppression of criminal and administrative offences , detection of circumstances conducive to commission of offences and taking measures to obviate such circumstances ( section CARDINAL § CARDINAL ) .

Section CARDINAL of LAW provides that when discharging their duties the police may , in particular :

§ CARDINAL . check ORG identity documents if there are sufficient grounds to suspect that they have committed a criminal or administrative offence or have fled from justice ; and search citizens and their belongings if there are sufficient reasons to believe that they possess weapons , ammunition , explosives or drugs ;

§ CARDINAL . require citizens and officials to provide explanations , information or documents ;

§ CARDINAL . arrest persons suspected of administrative offences or persons who have unlawfully entered or attempted to enter a secure area ;

§ CARDINAL . arrest persons suspected of a criminal offence or persons who have been remanded in custody by a judicial order ;

§ CARDINAL . arrest persons who have fled from justice ;

§ CARDINAL . NORP arrest persons who have evaded compulsory medical treatment or educational supervision ;

§ CARDINAL . arrest minors suspected of criminal or administrative offences ;

§ CARDINAL . NORP arrest persons in a state of alcoholic intoxication if they have lost their ability to walk unaided or could cause harm to others or to themselves ( section CARDINAL ) .

The Operational - Search Activities Act of CARDINAL DATE ( no . CARDINALFZ ) provides that the aims of operative search activities are : ( CARDINAL ) the detection , prevention , suppression and investigation of criminal offences and identification of persons conspiring to commit , or committing , or having committed a criminal offence ; ( CARDINAL ) finding fugitives from justice and missing persons ; ( CARDINAL ) obtaining information about events or activities endangering the ORG , military , economical or ecological security of GPE ( section CARDINAL ) .

State officials and organs performing operational - search activities are to show respect for the private and family life , home and correspondence of citizens . It is prohibited to perform operational - search activities to attain aims or objectives other than those specified in this LAW ( section CARDINAL ) .

Operational - search activities include , inter alia , questioning and identity check ( section CARDINAL ) .

Section CARDINAL of the Operational - Search Activities Act provides that operational - search activities may be conducted , inter alia , on the following grounds :

( CARDINAL ) pending criminal proceedings ;

( CARDINAL ) receipt by the police of information

( a ) that a criminal offence has been committed or is ongoing , or is being conspired , and about persons conspiring to commit , or committing , or having committed a criminal offence , if this information is insufficient to open criminal proceedings ; ( b ) about events or activities endangering the ORG , military , economical or ecological security of GPE ;

( c ) about fugitives from justice ;

( d ) about missing persons or unidentified bodies ;

( CARDINAL ) receipt of a request from another ORG agency which is performing operational - search activities on the grounds specified in this section ( section CARDINAL ) .

The Suppression of Extremism Act ( Federal Law no . CARDINAL-FZ of DATE ) requires ORG agencies to take preventive measures against extremism to detect and eliminate causes of , and conditions for , extremist activities , as well as measures to detect , prevent and suppress extremist activities conducted by non - profit and religious organisations and persons ( section CARDINAL ) .

Order no . CARDINAL , On measures for enhancement of the automatic information system used by the interior departments of transport , issued by ORG on DATE ( unpublished , a copy was submitted by the Government ) , directed that a software database code - named “ Search - Highway ” ( “ Розыск-Магистраль ” ) be created and installed . Its purpose was to facilitate discovery of those suspected of criminal offences whose names were on the wanted ORG list . It was to be linked to the databases of the railway and airline companies , so that whenever any of the persons listed bought a train or airplane ticket an automatic notification was sent to the police , thereby allowing the police to arrest that person .

Order No . ORG , On installing the software database “ Search - Highway ” in the interior departments of transport , issued by ORG on DATE ( unpublished , a copy was submitted by the Government ) provided that the database be installed in DATE . The appendix to that Order established the procedure for its operation . In particular , it established that the following persons should be included in the database : ( CARDINAL ) persons on the ORG list ; ( CARDINAL ) foreign nationals or stateless persons whose names were put on the wanted ORG list in connection with criminal offence committed on the territory of GPE ; ( CARDINAL ) foreign nationals whose entry into GPE was prohibited or restricted ; ( CARDINAL ) persons suspected of the following serious or especially serious offences : unlawful transportation of arms , ammunition or explosives ; criminal explosions ; unlawful traffic of antiques or their smuggling out of GPE ; premeditated murders ; terrorist acts ; drug trafficking ; financial crimes ; ( CARDINAL ) leaders of ethnic communities ; leaders and active members of organised criminal groups .

Order no . CARDINAL , On certain measures intended to strengthen the fight against extremism , issued by ORG on DATE ( unpublished ) , directed that a database of potential extremists be created as a part of the “ Search - Highway ” database . It was code - named “ FAC ” ( “ GPE контроль ” ) .

According to PERSON . , an officer from the ORG whose affidavit was submitted by the Government , the decision to register a person ’s name in the “ FAC ” is taken by ORG or its regional departments on the basis of confidential information .


LANG v. THE UNITED KINGDOM AND HASTIE v. THE UNITED KINGDOM

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

NORP These cases concern CARDINAL applicants who in DATE were convicted in separate , unrelated criminal proceedings in GPE . The common complaint in the applications is that each applicant was interviewed by the police without access to a lawyer and the evidence obtained from that interviewed was relied on by the prosecution at trial .

The first applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently detained at ORG . He is represented before the ORG by PERSON , a lawyer practising in GPE with ORG .

The second applicant , PERSON , is also a NORP national . She was born in DATE and is currently detained at FAC . She is represented by PERSON , a lawyer practising in GPE with ORG .

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

In TIME of Saturday DATE , the first applicant had a sexual encounter with a woman who was spending TIME at his flat . TIME the woman attended a police station where she made an allegation of rape against him . The first applicant was then detained by the police and interviewed by them without the presence of a lawyer . In the interview he made a statement that he and the woman had had consensual sex . He was subsequently charged with rape and tried on indictment at ORG of Justiciary sitting at GPE DATE . At trial the prosecution relied on the statement the first applicant had given to the police . On DATE , he was convicted by a majority verdict of the jury . He did not appeal against his conviction .

On DATE , DATE before the delivery of the judgment of ORG in GPE v. HM Advocate [ DATE ] ORG CARDINAL ( see paragraphs CARDINAL–CARDINAL below ) , the first applicant applied to ORG of Justiciary sitting as a court of criminal appeal ( “ the Appeal Court ” ) for an extension of time in which to lodge an appeal against conviction and sentence . In the Note of Appeal which accompanied the application for an extension of time , the first applicant submitted inter alia that his trial had been unfair because he had not been give access to a lawyer while in police custody and the prosecution had relied on the contents of his police interview at trial .

The application for an extension of time was initially refused by a Single Judge and then , following an oral hearing on CARDINAL DATE , by a bench of CARDINAL judges .

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

On DATE , after a trial at ORG of Justiciary sitting at GPE , the second applicant was convicted of murder . In the course of the trial , the prosecution had relied on statements given by the second applicant in the course of a police interview , which took place on DATE without the presence of a lawyer .

The second applicant was advised by her then legal representatives that she had no grounds for appealing against her conviction and accordingly did not do so within the statutory time - limit . However , it appears that , in DATE and again in DATE and DATE , she was granted extensions of time in which to lodge a ORG , but failed to do so .

On DATE , on the basis of advice from new legal representatives , the second applicant lodged an application for extension of time in which to lodge an appeal against conviction . The application and an accompanying devolution minute alleged inter alia that the second applicant ’s trial had been unfair as a result of the admission of the statements she had given in her police interview .

The application was refused by a Single Judge on CARDINAL DATE . The second applicant appealed against that decision and a hearing was convened before CARDINAL judges of ORG on DATE . Before the hearing senior counsel advised the second applicant that none of her grounds of appeal were arguable : in particular , he advised that ORG finding in GPE that its ruling should not apply to “ closed cases ” ( see paragraph CARDINAL below ) meant that the second applicant ’s ground of appeal relating to the admission of her statements to the police could not succeed . Consequently , at the hearing on DATE , the second applicant sought to withdraw her application for an extension of time . ORG allowed the application to be withdrawn on DATE .

At the time of the above judgment ( and the time of the present applicants’ trial ) , sections DATE and CARDINAL of the Criminal Procedure ( GPE ) Act DATE ( “ the DATE LAW ) provided that a person detained at a police station had the right to have the fact and place of his detention intimated to a solicitor , but did not have the automatic right of access to a solicitor either prior to or during a police interview .

The compatibility of sections DATE and CARDINAL of the DATE Act with this ORG ’s judgment in GPE v. GPE [ ORG ] , no . DATE was considered by ORG of Justiciary sitting as a court of criminal appeal ( “ the Appeal Court ” ) in ORG v. PERSON , judgment of CARDINAL DATE . ORG considered that it was not necessary to give effect to the PERSON judgment in GPE , finding instead that the guarantees available under the NORP system were sufficient to secure a fair trial of someone who was interviewed without access to a lawyer and whose responses were relied on by the prosecution .

PERSON was detained in DATE following an incident in which CARDINAL men had been attacked by a group of youths . He was taken to a police station and interviewed , under caution but without the presence of a lawyer , by QUANTITY police officers . During the interview he made a number of admissions with regard to the offences with which he was later charged . He was then arrested , cautioned and charged with assault and breach of the peace . At trial the audio tape recording of his police interview was played in full to the jury and they were given copies of the transcript . On CARDINAL DATE he was convicted on all charges . He appealed against conviction inter alia on the ground that his interview had been relied on at trial . His appeals to ORG were refused on the papers at the first and second sift stages . He then submitted an application for special leave to appeal to ORG .

On DATE the ORG unanimously found that : ( i ) PERSON had been incorrectly decided by ORG ; ( ii ) ORG ’s case should be remitted to ORG for further consideration ; ( iii ) and its ruling should not apply retroactively .

On the third issue , both Lord Hope and Lord PERSON ( with whom the other Justices agreed ) held that , in the interests of legal certainty , the ruling should not permit the re - opening of closed cases , but rather only apply to cases which had not yet gone to trial , to cases where the trial was still in progress and to appeals that had been brought timeously . For all closed cases it was a matter for ORG to decide whether the cases should be referred back to ORG and for that court to decide what course it ought to take if a reference were to be made to it by the Commission .

Immediately after the ORG ruling , LAW ( “ LAW ) was passed by ORG . It amends PERSON ( GPE ) Act DATE to allow a suspect the right to have intimation sent to a solicitor inter alia that the solicitor ’s professional assistance is required by the suspect . It also provides for the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning . Consultation includes , for example , consultation by means of telephone . The CARDINAL Act also provides that a suspect must be informed of these rights .

ORG is a public body with the task of reviewing and investigating cases where it is alleged a miscarriage of justice has occurred . LAW amends the provisions of LAW which give the Commission the power to refer cases to ORG . LAW directs the Commission , in determining whether or not it is in the interests of justice that a reference should be made , to have regard to the need for finality and certainty in the determination of criminal proceedings . LAW also gives ORG the power to reject a case which has been referred to it by the Commission if the court considers that it is not in the interests of justice that any appeal arising from the reference should proceed . The LAW provides that , in determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed , ORG must have regard to the need for finality and certainty in the determination of criminal proceedings .


Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

ORG On DATE Mr PERSON was stopped by the police while driving his car . He was not wearing his safety - belt . In a " sentence order " ( PERSON ) of DATE the federal police authority ( Bundespolizeidirektion ) in GPE imposed on him a fine of MONEY ( ORG ) with TIME ' imprisonment in default of payment , for an offence under section III(CARDINAL ) and ( QUANTITY ) of the third amendment to LAW ( GPE - see paragraph CARDINAL below ) .

ORG The applicant appealed against that decision to the GPE regional government ( Amt der Landesregierung ) , which upheld the decision on DATE but reduced the fine to ORG CARDINAL and the penalty in default to TIME imprisonment .

ORG On DATE the applicant applied to ORG ) . He complained of an infringement of the principle that all citizens are equal before the law and alleged that his being sentenced to imprisonment in default by an administrative authority that was not an " independent and impartial " tribunal breached ORG and CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW . He also argued that the requirement to wear a safety - belt was an interference in his private life , contrary to LAW .

On DATE , at the conclusion of a consideration of the case in private , ORG declined to accept the appeal for adjudication ( Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) - see paragraph CARDINAL below ) , since , in view of its case - law on LAW , it did not have sufficient prospects of success ; moreover , the case did not lie outside the jurisdiction of ORG ( Verwaltungsgerichtshof ) .

At Mr PERSON 's request , it also decided to refer the application to ORG .

ORG On DATE ORG stayed the proceedings before it as Mr PERSON 's application did not satisfy the substantive and formal requirements of section CARDINAL(CARDINAL ) of LAW ( Verwaltungsgerichtshofsgesetz - see paragraph CARDINAL below ) .

Section III of the CARDINAL Act as amended in DATE , which amended LAW CARDINAL ( ORG ) , provides :

" CARDINAL . ORG Where a seat in a motor vehicle is equipped with asafety - belt as required by LAW , the driver andpassengers occupying such a seat must wear the safety - belt in theconventional manner ( bestimmungsgemäß ) ...

ORG It shall be an administrative offence ... punishable , in a sentence order without a hearing ( PERSON ) pursuant to LAW a fine of ORG CARDINAL for

( a ) the driver of a motor vehicle or

( b ) a passenger in a motor vehicle

not to comply with the requirement in subsection ( CARDINAL ) , first sentence . In the event of refusal to pay the ... fine , the authority may impose a fine of up to ORG CARDINAL , with CARDINAL ' imprisonment in default of payment .

ORG Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) provides :

" Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . "

ORG By Article CARDINAL para . CARDINAL of LAW , when an application ( Beschwerde ) is made to it , has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the LAW or has applied regulations ( Verordnung ) contrary to the law , a law contrary to LAW or an international treaty incompatible with NORP law .

Article CARDINAL para . CARDINAL provides :

" Up to the time of the hearing ORG may by means of a decision ( ORG ) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The court may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . "

ORG By LAW para . CARDINAL of LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .

Section CARDINAL(CARDINAL ) of LAW ( Verwaltungsgerichtshofsgesetz ) provides :

" Applications which are not barred by any of the circumstances set out in subsection ( CARDINAL ) , but fail to satisfy the conditions as to form and content laid down in DATE , must be adjourned for a brief period to enable their defects to be remedied ( Behebung der Mängel ) ; applications not rectified within the time - limit shall be deemed to have been withdrawn . "

Section CARDINAL(CARDINAL ) provides , in particular , that at the end of the preliminary proceedings ( PERSON ) ORG must hold a hearing where the applicant makes a request to that effect .

Section CARDINAL(CARDINAL ) reads as follows :

" Notwithstanding a party 's application under subsection ( CARDINAL ) , ORG may decide not to hold a hearing where

ORG the proceedings must be stayed ( section CARDINAL ) or the application dismissed ( section CARDINAL ) ;

ORG the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;

ORG the impugned decision must be quashed as unlawful on account of a breach of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;

ORG the impugned decision must be quashed because its content is unlawful according to the established case - law of ORG ;

ORG neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed ;

ORG it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further . "

ORG - paragraphs CARDINAL of section CARDINAL ) were in force in DATE ; sub - paragraphs CARDINAL and CARDINAL were inserted in DATE and sub - paragraph CARDINAL in DATE .

Section CARDINAL(CARDINAL ) of LAW provides :

" In so far as ORG does not find any unlawfulness deriving from the respondent authority 's lack of jurisdiction or from breaches of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) ) ... , it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to CARDINAL of the parties might be decisive for ruling on [ CARDINAL of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . "

Section CARDINAL(CARDINAL ) of the same LAW states that , save as otherwise provided , ORG must either dismiss an application as ill - founded or quash the impugned decision .

By section ORG ) ,

" The Administrative Court shall quash the impugned decision if it is unlawful

ORG by reason of its content , [ or ]

ORG because the respondent authority lacked jurisdiction , [ or ]

ORG on account of a breach of procedural rules , in that

( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or

( b ) the facts require further investigation on an important point , or

( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . "

ORG If ORG quashes the impugned decision , " the administrative authorities [ are ] under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( PERSON ) " ( section CARDINAL(CARDINAL ) ) .

ORG In a judgment of CARDINAL DATE ( G CARDINAL/CARDINAL ) ORG held :

" From the fact that it has been necessary to extend the reservation in respect of LAW to cover the procedural safeguards of LAW , because of the connection between those CARDINAL provisions ( article CARDINAL , article CARDINAL ) , it follows that , conversely , the limited review ( die ( bloß ) nachprüfende PERSON ) carried out by ORG or ORG is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation . "

ORG Pursuant to LAW , administrative courts called " independent administrative tribunals " ( ORG ) were set up in the Länder with effect from DATE . The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences ( ORG ) .

ORG The instrument of ratification of the Convention deposited by ORG on DATE contains , inter alia , a reservation worded as follows :

" The provisions of LAW shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure , BGBl [ ORG ] No . CARDINAL , subject to review by ORG or ORG as provided for in LAW . "


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

The respondent Government were represented by their Agent , Ms M. Karadjova , of ORG .

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

On DATE the applicant and CARDINAL of his relatives initiated rei vindicatio proceedings against the GPE municipality . They sought to recover possession of a property , which had been nationalised by the ORG in DATE from one of their ancestors . They considered that the said property had been restituted to them ex lege following the entry into force on DATE of ORG ( the “ LAW ” ) .

It is unclear how many hearings were held before ORG . CARDINAL expert ’s opinion was obtained in the course of the proceedings and there was difficulty in obtaining various official documents regarding the status of the property .

On DATE ORG dismissed the claimants’ action as it found that they had failed to prove their ownership rights to the property . The claimants appealed against the judgment on an unspecified date .

On DATE ORG upheld the judgment of the lower court . The claimants filed a petition for review ( cassation ) against the aforementioned judgements on an unspecified date .

In a judgment of DATE ORG quashed the lower NORP judgments and remitted the case to ORG as it considered that there had been procedural violations by the lower courts due to the fact that they had based their findings on insufficient evidence .

It is unclear how many hearings were held before ORG at the retrial stage of the proceedings . During this period the court commissioned CARDINAL expert reports , dated DATE and DATE , CARDINAL DATE and DATE , sometime at DATE and DATE .

In a judgment of DATE ORG once again found against the claimants as it considered that they had failed to prove their ownership rights to the property and dismissed their rei vindicatio action . The claimants filed a petition for review ( cassation ) against the aforementioned judgement on an unspecified date .

In a final judgment of CARDINAL DATE ORG upheld the lower court ’s judgment on similar grounds .

The mother of the applicant filed a request on DATE with ORG seeking the restitution of a plot of land . It is unclear whether the property subject of this request was the same one as that in rei vindicatio proceedings .

ORG apparently did not respond to the request filed by the applicant ’s mother , so on an unspecified date she appealed against the tacit refusal of the GPE Mayor . On an unspecified date , CARDINAL of her relatives joined the proceedings .

On DATE the claimants were served with a decision of the Deputy - Mayor of GPE refusing to restitute the claimed property . The claimants appealed against the decision on DATE .

It is unclear how many hearings were conducted before ORG .

In a judgment of DATE ORG dismissed the PERSON appeal and upheld the decision of the Deputy - Mayor of GPE . The court found that the property was not subject to restitution under LAW because it had been nationalised for municipal projects which had been completed , which precluded such restitution .

The claimants filed a petition for review ( cassation ) against the aforementioned judgment on DATE .

ORG , in a judgment of DATE , quashed the judgment of DATE and remitted the case as it found that there had been procedural deficiencies in the proceedings before the lower court . In particular , it considered that the lower court had failed to examine evidence which unequivocally proved that the municipal projects for which the property had been nationalised had in fact been completed .

It is unclear how many hearings were conducted before ORG at the retrial . On this occasion , the relatives of the applicant ’s mother did not join the proceedings . During the period , CARDINAL or CARDINAL technical and accounting expert reports were commissioned and obtained by the court on DATE , CARDINAL June , CARDINAL DATE and CARDINAL DATE , CARDINAL DATE , and , CARDINAL DATE and DATE . In addition , CARDINAL hearings were postponed at the request of the applicant and the lawyer of his mother . As a result of the applicant ’s mother passing away , on DATE he and his sister continued the proceedings instituted by her .

In a judgment of CARDINAL DATE ORG found against the applicant and his sister , dismissed their appeal and upheld the refusal of the Deputy - Mayor of GPE . The court noted their failure to comply with an instruction of DATE to present a certificate that they were the heirs of the ancestor whose property they sought to restitute . Regarding the restitution claim , the court found , inter alia , that it was not possible to identify the property previously owned by the PERSON ancestor and that the prerequisites for restitution under LAW had not been met .

The applicant and his sister appealed against the judgment on DATE .

In a final judgment of DATE ORG quashed the lower court ’s judgment in respect of part of the disputed property and ruled on the merits of the appeal against the refusal of the Deputy - Mayor of GPE as regards that part of the property . In contrast to the lower court , ORG considered that all the prerequisites for restitution of the said part of the property were present , found in favour of the applicant and his sister , and restituted it to them .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)

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

The applicant was born in DATE . He lives in GPE .

On DATE ORG found the applicant guilty of robbery and CARDINAL traffic offences and sentenced him to CARDINAL years’ imprisonment .

He started serving his sentence in PERSON , where he was detained from DATE to DATE ; from DATE to DATE ; from DATE ; and from DATE to DATE . He also served a part of his sentence in GPE prison from DATE to CARDINAL DATE ; from DATE to CARDINAL DATE ; and from DATE to DATE .

The further circumstances on the applicant ’s conditions of detention are in dispute between the parties .

The applicant complained about the conditions of his detention , summarised below , in both PERSON and PERSON prisons .

He regularly complained thereof and about the disciplinary measures taken against him to the delegate judge , who dismissed most of his complaints .

For instance , in a decision of DATE , the delegate judge to PERSON rejected the applicant ’s complaints that he did not fully benefit from the rights granted to him by the LAW implementing Law no . CARDINAL/CARDINAL , adopted by Decree no . DATE , on the ground , inter alia , that the legal force of the regulations was inferior to that of the law , and that therefore the prison administration was under no obligation to grant detainees rights which were not provided for by PERSON no . QUANTITY itself .

The cell lacked basic hygiene , it was infested with lice , bugs and rats , the blankets were in a poor condition and the mattresses were dirty . Although the cell was very small and it was only big enough for CARDINAL people , there were CARDINAL beds and QUANTITY inmates in the cell ( sometimes even CARDINAL ) .

The cell window was very small and the cell lacked natural light . Due to the size of the window , the cell was not properly ventilated . The air was even more difficult to breathe as his cellmates were smokers , and the applicant was thus exposed to smoke almost all day long .

As the sanitary facilities were separated from the rest of the cell only by a makeshift partition , the smell was unbearable .

The water was undrinkable .

In addition , the applicant alleges that his DATE walk schedule was not observed and that his access to cultural and educational activities was limited .

The conditions were similar to those in PERSON : the cell was overcrowded and lacked basic hygiene ; also , there were no educational and cultural activities and the walk schedule was not observed .

He was detained alone in a cell for DATE , from DATE to DATE . During that period he had no contact with the outside world , his rights to receive visits or parcels and to make phone calls were heavily restricted , the window could not be opened and he could only go out for walks on the roof of the prison building , handcuffed , and in a group of CARDINAL or CARDINAL prisoners .

On DATE the applicant was categorised as “ dangerous ” and treated as such , including during his transfer from PERSON to FAC . This measure was regularly renewed . However , the applicant considered that the decisions to categorise him as dangerous had lacked any factual basis and pointed out that since DATE he had not committed any act of indiscipline and had integrated very well into prison life .

Being categorised as a dangerous prisoner had serious consequences . His rights to receive visits , parcels and correspondence were restricted , and sometimes even withdrawn .

The applicant frequently had to file actions with the courts each time there was a restriction of his right to receive parcels and correspondence ; most of his complaints about that were allowed by the domestic courts . However , the decision to categorise him as dangerous had other consequences : it prevented him from participating in a number of activities in the prison , and even restricted his movement ; for instance , his hands were handcuffed behind his back whenever he was moved , which proved very painful .

Generally , the prison staff had a hostile attitude towards him .

On DATE he was taken from PERSON to ORG for a hearing . He did not receive any food or water until he was taken back to FAC .

The Government submitted in their observations that in general , the conditions in PERSON were adequate . In DATE and DATE there had been a problem with the overcrowding of the cells , but as of DATE the situation had improved , and in each cell the number of detainees corresponded to the number of beds at the most . Each cell had power supply , natural light and natural ventilation through the windows . In DATE time , the cell doors remained open , being closed off only by grids for better ventilation .

Each cell was equipped with tables , chairs , benches and a hallstand . The cells were cleaned by the prisoners , the necessary materials being provided by the prison administration . Disinfestation services were provided by professionals at least once DATE . The sanitary facilities were cleaned TIME with disinfectants . Whenever necessary , the cells were cleaned with disinfectants . DATE , upon request , the clothing of the detainees was washed .

Drinking water was permanently available . The quality of the water was checked DATE by a company under contract with the prison administration ; according to the reports of that company , the water was drinkable .

NORP The applicant was detained in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL .

During DATE the applicant was entitled to a DATE TIME walk ; after PERSON no . CARDINAL/CARDINAL entered into force in DATE , he was entitled to a TIME walk . In DATE and DATE the applicant also took part in educative programmes .

The fact that the applicant was registered as a detainee with an increased degree of risk did not restrict his right to receive packages , visits , or correspondence ; however , appropriate security measures were taken when granting these rights .

Moreover , the applicant complained CARDINAL of times both about the security measures and the way they interfered with his rights , as well as about the improper conditions of his detention . The delegated judge often granted the applicant ’s appeals concerning disciplinary sanctions against him . The appeals concerning his registration as dangerous and the material conditions of detention were dismissed , on the ground that no breach of law could be found . For instance , on CARDINAL DATE , the applicant ’s complaints about the improper material conditions in his cell and about the lack of medical treatment by a dentist were dismissed by the delegate judge . He found , upon examination of the information submitted to him by ORG administration , that the conditions of the applicant ’s detention did not amount to inhuman or degrading treatment and that , although there was no dentist in PERSON , a competition for hiring a dentist in that prison was being organised by ORG . The delegated judge concluded that no breach of PERSON no . CARDINAL/CARDINAL could be found .

The cells in the prison had CARDINAL or six beds , and were equipped in compliance with the law . Each detainee had an individual bed and a bedroll .

The CARDINAL - bed detention cells measured QUANTITY , access to natural light and ventilation through CARDINAL windows , and were equipped with CARDINAL sink with utensils , CARDINAL television stand , CARDINAL table , CARDINAL lamp and TIME watch light .

The CARDINAL - bed detention rooms measured QUANTITY , access to natural light and ventilation through CARDINAL windows , and were equipped with CARDINAL sink with utensils , CARDINAL television stand , CARDINAL tables , CARDINAL bench , a hallstand , CARDINAL lamp and TIME watch lamp .

The sanitary facility was separated from the detention room and conformed to hygiene standards and privacy requirements . The detention rooms and water for twice DATE baths were heated by the prison ’s own power station . Drinking and non - drinking water was provided by the GPE city supply network and was checked periodically .

The applicant was registered as a detainee with an increased degree of risk , and therefore security measures were taken when according his rights . For instance , his DATE walk took place in CARDINAL of the CARDINAL courtyards specially designed for very dangerous detainees , located on block C.

DATE the applicant was detained alone in a cell equipped in a similar way to the other cells . After DATE the applicant shared his cell with another detainee . The DATE programme was respected by the prison administration , his rights to visits and packages were observed , and he was even able to participate in the football games organised by the penitentiary authorities .

The applicant ’s registration as a detainee with an increased degree of risk was well - founded and repeatedly prolonged throughout his detention in FAC . The applicant complained CARDINAL of times about his conditions of detention , including material conditions , lack of medical treatment and restrictions to his rights as a result of his registration as dangerous .

The circumstances surrounding the events on CARDINAL November DATE are in dispute between the parties .

The applicant alleged that on CARDINAL and CARDINAL DATE , while in PERSON , he had been beaten by members of FAC intervention squad wearing balaclavas . His requests to be examined by a forensic doctor immediately after the violent incidents had been ignored . He further alleged that he had immediately duly informed the prison authorities about the violent behaviour of the members of the intervention squad .

The Government submitted in their observations that on DATE , upon his return from a court hearing , the applicant had asked to be taken to the prison store room to pick up some personal effects . The officers had informed him that his request would be granted only after all the formalities applicable to detainees returning from court to their cells had been complied with . Unhappy that his request had not been granted immediately , the applicant had become violent , and while he was being taken to the detention room , he had managed to undo his handcuffs and hit ORG , CARDINAL of the members of the intervention unit , in the face . The incident was settled calmly and the applicant was placed in his cell without further difficulty . The DATE ORG had been taken to a doctor , who had established that he had “ a minor head injury of level CARDINAL ” , which required DATE of medical treatment .

The applicant also alleged that on DATE , during the morning call , he had been hit and insulted by a supervising officer , GPE , and CARDINAL members of the intervention unit .

After the incidents on CARDINAL , DATE and DATE , the applicant lodged with ORG attached to ORG a criminal complaint against the following prison officers :

a ) ORG and other members of the intervention unit , for hitting him on TIME of CARDINAL DATE upon his return from a court hearing ;

b ) GPE , GPE , ORG and other members of the intervention unit for allegedly beating , threatening and insulting him on DATE ;

c ) prison warden ORG for allegedly insulting and hitting him during TIME call on DATE .

On DATE the applicant was brought before ORG concerning his request that the prison administration ’s decision to grade him as a “ dangerous detainee ” be revoked ( see paragraph CARDINAL above ) . During the hearing , he complained that he had been repeatedly beaten in FAC by ORG agents and that his body still bore bruises , and that he suffered pain in the right rib cage . He also indicated that he had filed complaints with the prosecutor and the prison administration , asking to see a doctor , but that he had received no answer .

The court took note of the criminal complaints lodged by the applicant and forwarded them to the prosecutor for further investigation . It also ordered FAC administration to allow a doctor to see the applicant in order to have a medical certificate drawn up in relation to his allegations of ill - treatment .

Following ORG order , the applicant was examined by a doctor DATE , on DATE . A forensic medical report was drawn up , indicating multiple bruises in the area of the applicant ’s thighs and lower legs , which were deemed to still require CARDINAL days’ medical treatment . The report also stated that the bruises could have been caused on CARDINAL or DATE by impact with hard objects .

On DATE ORG indicted the applicant for assault on a ORG agent , for having hit ORG on DATE ( see paragraphs CARDINAL et seq . below ) .

On DATE ORG decided not to open criminal proceedings against ORG in relation to the alleged incident on DATE , on the ground that the complaint had not been substantiated . The prosecution established that the only witness who had supported the applicant ’s version of events , PERSON , had not been an eyewitness ; he had only heard screams and shouting involving the applicant and I.N from his cell . The other witnesses , who had been sharing the cell with the applicant , had not seen anything .

The decision not to open criminal proceedings against ORG was upheld by the higher prosecutor on DATE .

On DATE ORG upheld the decision not to open proceedings . The court reached this decision upon examination of the file produced by the prosecution , without any evidence being administered or any witnesses being heard .

On DATE ORG decided not to open criminal proceedings in relation to the alleged incidents of CARDINAL and DATE . The prosecutor established that on DATE , due to the fact that the applicant had been denied a particular request , he had succeeded in freeing one hand from his handcuffs and hitting CARDINAL of the agents of the special intervention unit , ORG , in the face . The intervention squad had managed to immobilize the applicant . The prosecutor considered that the forensic certificate drawn up on DATE could not constitute evidence showing that the injuries had been inflicted by ORG and ORG , since there was a possibility that those injuries had been inflicted during the immobilization of the applicant . The prosecutor further indicated that the statements made by those witnesses who were also detainees were subjective , due to the fact that they had been the applicant ’s fellow inmates ; moreover , they had presented the facts differently .

The decision not to open criminal proceedings in relation to the alleged incidents of CARDINAL and DATE was upheld by the higher prosecutor on DATE .

On DATE ORG upheld the decision of DATE . The court reached its decision upon examination of the file produced by the prosecution , without administering evidence or hearing witnesses .

The court found that the witnesses did not confirm the applicant ’s allegations . In particular , those witnesses in FAC who had seen the applicant being hit by agents wearing balaclavas were unable to provide the names of those agents , while other witnesses had no knowledge at all of the said events . The court found the statement by an inmate , PERSON , to the effect that CARDINAL of the CARDINAL agents wearing balaclavas who had beaten the applicant had been ORG , unconvincing on the ground that the agents’ faces had been covered by the balaclavas . The court further found , with respect to the forensic medical certificate , that “ the mere existence of those bruises does not indicate the respondents’ guilt . ”

On DATE ORG upheld the decision of DATE , finding that the applicant ’s allegations had not been fully substantiated . The court reached its decision upon examination of the file produced by the prosecution . It concluded that despite a number of witnesses confirming the occurrence of incidents between the applicant and the prison wardens in FAC , none of those witnesses had identified the applicant ’s aggressors as the defendants indicated by the applicant .

On DATE ORG indicted the applicant for assault on a ORG agent , for having hit ORG on DATE . After questioning witnesses to the incident on DATE and in the light of the medical certificate issued on DATE , indicating that ORG had needed DATE of medical care , the prosecutor established that the applicant had voluntarily hit ORG on DATE .

Before ORG the applicant claimed that he had not hit ORG on DATE . He contended that while he had been vehemently protesting against the PERSON refusal to take him to the store room , CARDINAL members of the intervention squad had approached him and hit him . During his attempts to defend himself from the blows , CARDINAL of the agents might have accidentally been hurt . He claimed , however , that he had not behaved aggressively and had not resisted the immobilisation manoeuvres . He relied on the statements of all the witnesses to the incident , which had shown that he had not acted violently when the agents had attempted to immobilize him . He further stressed that numerous witnesses had stated that the ORG agents had assaulted him , and pointed to the incoherency of the statements of the agents who claimed that he had voluntarily hit ORG

He finally asked the court to hear evidence from all witnesses to the incident , inmates and ORG agents .

On CARDINAL DATE ORG convicted the applicant of assault on a ORG agent , ORG , sentenced him to CARDINAL years’ imprisonment and , as required by LAW read in conjunction with LAW a ) of LAW , deprived him of his right to vote as an additional penalty .

The court firstly noted that the inmates who had witnessed the incident of DATE had withdrawn the statements they had made to the prosecutor in which they had indicated that the applicant had hit ORG Before the court , they had stated that those statements had been made under duress . They submitted to the court that it was the applicant who had been assaulted by the ORG agents .

The court found those statements irrelevant , on the ground that they merely proved an alleged provocation by the ORG agents , and did not exculpate the applicant from the injuries he had caused to ORG The court further found that those injuries had been caused with intent , as the statements given by the ORG agents questioned in the court showed .

Following an amendment of LAW on certain sentences , an appeal by the applicant was allowed on DATE by ORG , with regard to the prison sentence only , which was reduced to DATE . The decision was upheld by ORG on DATE .

On DATE the PERSON prison administration informed the applicant that his common - law wife , ORG , was not allowed to visit him , since the prison records indicated that he was married to another woman . Her name was therefore not put on the list of people allowed to visit the applicant .

On DATE , relying on Government Ordinance no . CARDINAL , the applicant challenged the refusal of the Giurgiu Prison administration to allow him visits from ORG with ORG . By a decision of DATE the court found for the applicant and ordered the decision in question to be quashed and the applicant to be entitled to visits from ORG The decision became final .

NORP The prison records do not indicate that there were visits from ORG after the judgment of DATE . They do , however , indicate that he was visited by members of his family on a regular basis .

Whether the decision of DATE was enforced or not is in dispute between the parties .

The applicant claimed that the decision of DATE had not been enforced and that ORG had not been put on the list of people allowed to visit him . He did not provide , however , specific information as to any attempts by ORG to visit him after DATE .

In their observations , the Government claimed that , on the contrary , after the decision of DATE , ORG did not ask to visit the applicant .

NORP The domestic legislation on the execution of sentences , in particular PERSON no . TIME and Emergency Ordinance no . CARDINAL ( “ Ordinance no . CARDINAL ” ) are described in GPE v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .

On DATE Law no . CARDINAL/CARDINAL on the execution of sentences entered into force , which replaced PERSON no . CARDINAL and Ordinance no . CARDINAL .

LAW no . CARDINAL/CARDINAL provides the right of a detainee to complain to the delegate judge about any measure taken by the prison administration which infringes the rights granted to him by that PERSON . The decision taken by the delegate judge is subject to appeal before ORG .

No provision of PERSON no . CARDINAL/CARDINAL deals with the structural quality of the place of detention or the space provided to detainees .

The relevant provisions of LAW concerning complaints about decisions by the prosecutor are set out in PERSON GPE ( no . CARDINAL ) , no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .

The relevant provisions of LAW providing the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence , read as follows :

“ Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty :

( a ) the right to vote and to be elected to bodies of a public authority or to public elective office ;

“ The secondary penalty shall consist in disqualification from exercising all the rights listed in LAW .

( CARDINAL ) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ... ”

In a decision of CARDINAL DATE ( following an appeal in the interests of the law ) which became mandatory on the date of its publication in ORG on DATE , ORG and ORG advised the domestic courts to interpret LAW in the light of the LAW , and thus assess in each case the necessity of the withdrawal of the right to vote .

The Government submitted copies of various decisions given by the domestic courts applying Ordinance no . CARDINAL/CARDINAL and PERSON no . CARDINAL/CARDINAL . These decisions deal mainly with complaints by detainees which challenged before the national courts various disciplinary measures , or related to the regime of imprisonment , the right to correspondence or medical care .

The Government also submitted CARDINAL cases , CARDINAL concerning a complaint about poor sanitary installation and lack of observance of a shower schedule , and CARDINAL concerning a complaint regarding overcrowding , lack of air , and the presence of ill inmates . Both of them were dismissed by the domestic courts on the ground , inter alia , that they “ did not regard any of the rights provided by PERSON no . CARDINAL ” .

Following a visit to GPE by the Commissioner for Human Rights from DATE , a report was published on DATE , providing information on GPE - Jilava Prison . The report describes the conditions of detention in this facility as “ particularly difficult ” and the situation as “ alarming ” . It further described the facilities as “ outdated , windows unable to filter the cold and furniture from another era ” .

The relevant findings and recommendation of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) are described in the cases ORG v. GPE , no . CARDINAL , § § DATE , DATE , and GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .

With regard to PERSON , excerpts from the ORG ’s findings following the visits of DATE and DATE are given in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) . In particular , the ORG expressed concern about the restricted living space , as the number of detainees exceeded more than twice the prison ’s capacity , the shortage of beds , the lack of adequate separation between the toilets and the living space in the cells , and qualified the conditions as “ lacking privacy ” and “ an affront to human dignity ” .

Following visits in DATE to several prisons in GPE , the ORG published a report on DATE , in which it stated , inter alia :

“ DATE . ( ... ) the ORG is gravely concerned that the lack of beds remains an ongoing problem not only in the establishments visited , but also at the national level , and has been since the first visit to GPE in DATE . It is high time that major steps are taken to put an end to this unacceptable situation . The ORG calls upon the NORP authorities to take decisive priority action to ensure that that each inmate housed in a prison has a bed .

However , ORG welcomes the fact that shortly after the visit in DATE , the official standard of living space per inmate in the cell was increased from CARDINAL FAC ( which amounted to an area of QUANTITY per detainee ) to QUANTITY . The ORG recommends that the NORP authorities take the necessary steps to meet the standard of CARDINAL m² of living space per inmate in shared cells in all prisons in GPE ” .

With respect to the practice of prison administrations employing special intervention units , in its report of DATE the ORG found that special intervention units wearing masks were dispatched to surveillance departments in order to control violent and/or unmanageable and rebellious detainees . According to the ORG , the presence of such units creates an oppressive atmosphere , whereas the wearing of masks makes it difficult to identify a potential suspect if and when an allegation of ill - treatment is made . The ORG recommended that members of the special intervention units should be forbidden from wearing masks in the exercise of their duties in a prison environment , irrespective of the circumstances . The ORG further recommended that the NORP authorities remind the members of the special intervention units that all forms of ill - treatment against detainees ( including verbal provocation and insults ) are unacceptable and are to be severely sanctioned , and that the use of force in order to control violent and/or recalcitrant prisoners must be limited to occasions when it is strictly necessary .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the town of GPE . He is represented before the Court by PERSON , a lawyer practising in GPE . The respondent Government are represented by PERSON , Representative of GPE at ORG .

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

The applicant worked as a doctor in a ORG medical institution . On an unspecified date the applicant was accused of bribery and corruption . By first instance judgment of DATE ORG fully acquitted the applicant . On DATE the judgment was upheld by ORG of GPE and came into force .

Thereafter the applicant brought CARDINAL sets of proceedings against the ORG , claiming damages for the wrongful prosecution .

On DATE ORG of the town of GPE ( “ the ORG ” ) examined and granted his action for non - pecuniary damages . The applicant was awarded RUR CARDINAL,CARDINAL to be paid by ORG . This judgment came into force on CARDINAL DATE .

By judgment of DATE ORG granted the applicant ’s claim for pecuniary damages and ordered ORG to pay him ORG . The judgment came into force on DATE .

On DATE ORG issued the applicant with the writ of execution in the respect of the judgment of DATE . On DATE he forwarded this writ and supporting documents to a local department of ORG of ORG ( ORG Министерства финансов LOC по Воронежской области , “ the ORG ” ) .

On DATE the applicant obtained the writ of execution in respect of the judgment of DATE and on DATE he forwarded the writ and supporting documents to ORG .

In DATE ORG returned both writs and the documents to the applicant without enforcement . They stated , in particular , that under the legislation in force execution writs issued against the ORG should be submitted directly to ORG ( see the relevant domestic law section below ) .

The applicant followed the instruction and on DATE he applied to the said Ministry for enforcement . The writs and supporting documents reached ORG .

It appears that the applicant also unsuccessfully applied for enforcement of the judgments in his favour to the bailiffs .

In DATE the money due pursuant to the judgments of CARDINAL DATE and DATE were transferred to the applicant ’s bank account .

Section CARDINAL of LAW for DATE and LAW of LAW for DATE provides that writs of execution in respect of the claims arising out of unlawful actions or inactions of ORG bodies should be submitted directly to ORG and that the bailiffs are not authorised to carry out the enforcement of such writs .