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

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively and live in GPE , GPE . At the material time the first applicant , a police officer , and the second applicant , a former police officer , were the chairman and the deputy chairman of a local police trade union .

On DATE , in connection with the discovery of CARDINAL explosive devices and cartridges at the home of a third person , PERSON , the department of the interior of the Primorskiy region and ORG of GPE ( “ the ORG ” ) initiated criminal proceedings under LAW of GPE ( “ unlawful acquisition , transfer , sale , storage , transportation and carrying of firearms , basic parts of firearms , ammunition , explosives and explosive devices ” ) .

On DATE the applicants were arrested . On DATE the prosecutor ’s office of the Primorskiy region extended the applicants’ detention , referring to the gravity of the charges against them and the risk of their absconding from the authorities or obstructing the course of justice .

On DATE the applicants were transferred to detention centre IZ-CARDINAL/CARDINAL ( “ the detention centre ” – in some of the documents submitted also referred to as ORG ) in GPE .

On DATE the prosecutor ’s office of the Primorskiy region extended the applicants’ detention until DATE , referring to the same reasons , namely the risk of their absconding from the authorities or obstructing the course of justice .

On DATE the prosecutor ’s office of the Primorskiy region extended the applicants’ detention until DATE . The first applicant ’s lawyer appealed against the extension order . On DATE ORG of GPE dismissed the appeal and stated that the applicant had the right to appeal against that decision to ORG . The first applicant did not appeal to the second - instance court .

On DATE the prosecutor ’s office of the Primorskiy region extended the applicants’ detention until DATE , referring to the gravity of the charges against them and the risk of their absconding from the authorities or obstructing the course of justice .

On DATE the investigation forwarded the criminal case against the applicants to the Primorskiy Regional Court for the determination of the jurisdiction for the trial . On DATE ORG decided that the case should be examined by ORG of GPE ( “ the ORG ” ) and forwarded the case file to ORG .

On DATE ORG held a directions hearing and decided to examine the criminal case on DATE . The court also decided to extend the applicants’ detention on remand , using a summary formula in respect of both applicants and stating that “ the preventive measure in respect of [ the applicants ] should remain the same – detention on remand ” . No reasons for the extension of the applicants’ detention on remand were provided .

On DATE , during the examination of the applicants’ case , the court allowed an application by them for an additional expert assessment of fingerprints . The court forwarded the case file to GPE for the expert assessment and adjourned the hearing of the criminal case . During the hearing the applicants complained under LAW ( lodging applications before the court ) to ORG about the length of their detention on remand and requested to be released pending trial . The applicants stated that they had permanent places of residence ; that they had the necessary communication equipment to ensure constant contact with the authorities ; that they had always been given positive assessments ; that they had received State military awards ; that they had minor children ; and that they both had kidney diseases , treatment for which was not available at the detention centre . Their complaint was included in the case file ( pages CARDINAL - CARDINAL ) , but was not examined by the court .

On DATE the first applicant complained to ORG , stating , among other things , that he had spent DATE in detention and requesting release pending trial . This complaint was not examined by the court .

On DATE the second applicant complained to ORG and requested to be released pending trial . He stated that he had CARDINAL minor children , that he had never been prosecuted , that he had a permanent place of residence and that he had no intention of absconding from the authorities . This complaint was not examined by the court .

On DATE the first applicant complained to ORG . In his letter he stated , among other things , that he had been detained for DATE and that his requests for release pending trial had not been examined . This complaint was not examined by the authorities .

On DATE and DATE the second applicant complained to ORG that his detention was unlawful and requested to be released pending trial . In his letter he pointed out that he had problems with his teeth and that adequate dental treatment was not available in the detention centre ; that he had a permanent place of residence ; that he had CARDINAL children and an elderly mother to take care of ; and that he had no intention of absconding from the authorities . These complaints were not examined by the court .

On DATE the first applicant complained to ORG , requesting it to examine the lawfulness of his detention on remand . Referring to the poor conditions of his detention , the general deterioration of his health and the lack of medical assistance in the centre , the applicant requested to be released pending trial . In his complaint the applicant stated that he had family and a child to take care of ; that he had a permanent place of residence ; that he had been working as a police officer for DATE ; that he had been given positive assessments ; and that he had no intention of absconding from the authorities . This complaint was not examined by the court .

On DATE the second applicant complained to ORG that his detention on remand was unlawful and requested to be released pending trial . In his letter he pointed out that he had lost several teeth and had other problems with his health , and that no medical assistance had been provided to him in the detention centre .

On DATE ORG responded to the second applicant . The letter was very brief and did not contain any judicial decisions . It stated : “ DATE the court sees no reasons for changing the preventive measure ” .

On DATE and DATE the second applicant complained to ORG that his detention on remand was unlawful and requested to be released pending trial . In his letters he stated , among other things , that he had lost CARDINAL teeth ; that he had problems with his kidneys ; that no treatment was available in the detention centre ; that he had a permanent place of residence ; that he had CARDINAL children and an elderly mother to take care of ; and that he had no intention of absconding from the authorities . These complaints were not examined by the court .

On DATE , upon completion of the expert assessment , the case file was returned to ORG and the hearing of the case was scheduled for DATE .

On DATE ORG resumed the hearing of the criminal case . It completed its examination on DATE , imposing suspended sentences on the applicants and ordering their immediate release .

From DATE until their release on DATE the applicants were detained in cells no . CARDINAL , DATE , DATE , CARDINAL and CARDINAL in the detention centre .

All the cells in which the applicants were detained were of identical size , measuring QUANTITY m by QUANTITY m with CARDINAL bunks . Both applicants shared their cells with CARDINAL other detainees ; therefore , they had to take turns to sleep and were allowed to sleep TIME and TIME The applicants and their cellmates were not provided with bedding or linen ; they had to acquire these items from their relatives and wash and dry them in the cells .

The cells were damp ; there was mould on the walls and the ceiling . The air was stale and musty . As there was no air ventilation , the cells were hot in DATE and cold in DATE ; the temperature in the cells depended on DATE and varied from + CARDINALºC to + CARDINALºC. The windows of the cells were covered with metal grilles supplemented with “ eyelashes ” , that is , metal strips covering the grille , which let no daylight in . The size of the air vents above the doors was QUANTITY m ; therefore they could not provide fresh air . The cells were constantly lit with a single CARDINAL-watt bulb . Unprotected electric wiring hung from the ceiling and along the walls . The cells were overrun with cockroaches , blood - sucking insects and mice , but the authorities made no attempt to exterminate them , refusing even to give the inmates chloride for disinfection . The cells were not equipped with a source of drinking water . The inmates had to drink water from the tap above the toilet , which was supposed to be used only for flushing .

The cells were equipped with toilets which were located QUANTITY away from the dining table and were not isolated from the living area as the centre ’s administration forbade putting up curtains .

NORP Despite numerous requests by the applicants , they were never provided with bedding , crockery or kitchenware . They were also denied any toiletries , such as soap , toothbrushes , a shaving set or toilet paper , to maintain personal hygiene . In the applicants’ submission , they were able to have a shower only once DATE for TIME , and to take a walk of TIME . The duration of walks was sometimes reduced to TIME . On several occasions , the warders made the applicants choose between having a bath and taking a walk . If the applicants were in a meeting with their lawyers or in court , then they did not get to take the walk . The scarce meals were of very poor quality .

The applicants , who suffered from toothache and urolithiasis , were denied proper medical treatment , reference being made to “ the absence of specialists and necessary medicine ” . In response to the first applicant ’s complaints of renal colic , a medical officer supplied him with medicine which was unfit for use , as its shelf life had expired DATE . With regard to the second applicant ’s complaint of acute colic , the medical officer refused to give him an injection with the medicine and syringes that had been delivered earlier by the applicant ’s family . The officer stated that he only used syringes for treatment of seriously ill patients , but he could see no such patients at the moment . The available dental care was provided by a doctor who saw patients DATE . In response to the ORG complaints of acute toothache he suggested that the teeth be extracted without an anaesthetic owing to the lack of medication and necessary equipment for the treatment of cavities .

The applicants supported their submission with a number of documents , including CARDINAL responses by the administration of detention centre IZ-CARDINAL/CARDINAL to their requests for information lodged in DATE : CARDINAL responses dated DATE ( CARDINAL responses concerning the ventilation of the cells , CARDINAL response concerning the metal bars on the ORG windows , CARDINAL response concerning the control over the sanitary conditions in the cells and CARDINAL response concerning the absence of the licence to practice medicine by the medical unit of the detention centre at the material time ) , CARDINAL response dated DATE ( the refusal to provide the information concerning the provision of the applicants with individual toiletry kits owing to the absence of the archives ) , CARDINAL response dated DATE ( the refusal to provide information concerning the DATE number of inmates in cell no . CARDINAL and their transfers to other cells ) and CARDINAL response dated DATE ( the refusal to provide information concerning the DATE number of inmates in cell no . CARDINAL and their transfers to other cells ) ; the Recommendations of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) concerning its visit to the detention facility from DATE ; CARDINAL witness statements concerning the conditions of the applicants’ detention in the detention centre provided by Mr GPE on DATE , Mr GPE on DATE and PERSON ORG on DATE ; and CARDINAL statements describing the conditions of detention and the lack of medical assistance in IZ-CARDINAL/CARDINAL , drawn up by the applicants and their cellmates , dated CARDINAL and DATE , CARDINAL , DATE and DATE and DATE . The applicants did not submit any medical documents concerning their respective conditions , whether produced during their detention in NORP or after their release .

Referring to the information provided by ORG , the Government submitted that the applicants had been detained in cells used for the detention of former employees of law - enforcement agencies .

Referring to the information provided by ORG , the Government submitted that the first applicant had been detained in cell no . CARDINAL , and the second applicant in cells FAC . CARDINAL , CARDINAL and CARDINAL at the detention centre .

The surface area and the height of the ceilings in all the cells were identical and amounted to QUANTITY m and QUANTITY respectively . Each cell was equipped with CARDINAL bunks . The applicants shared their cells with CARDINAL other persons . At the same time , in the same submission the Government further stated that in DATE the detention centre had been overcrowded owing to the high level of criminal activity in the area and the limited capacity of the centre . For these reasons the number of persons detained with the applicants had exceeded the required standard . In spite of these difficulties , each detainee in the applicants’ cells had been provided with a sleeping berth . However , the Government did not specify the exact number of persons detained with the applicants and the nature of the sleeping berth .

The size of the windows was in accordance with the relevant regulations and comprised CARDINAL of the ORG floor space , providing the applicants with the possibility of reading and working under natural light . Each window was equipped with an air vent for additional ventilation ; another source of ventilation was installed above the door . The temperature in the cells varied from + CARDINAL to + CARDINALºC. The window air vents and doors were opened for ventilation when the inmates were taken for a walk . All cells were equipped with running water . The levels of temperature and the humidity in the cells , as well as the quality of water , complied with the relevant hygiene and sanitary regulations . No outbreaks of infectious or parasitogenic diseases were registered at the centre at the material time .

Each cell in the centre was equipped with bulbs for DATE and night lighting . TIME lighting was on from TIME The toilet was separated from the living area by a curtain , which ensured privacy . There were no rodents or insects in the cells as the administration conducted a DATE disinfection ; in addition , the staff of the medical centre regularly inspected the cells for insects and rodents .

The applicants and other inmates of the detention centre were allowed to take a shower once DATE ; their bed linen was changed at the same time . The applicants were provided with individual bunks , bed linen , crockery and cutlery . They were given individual toiletry kits ( containing soap , a toothbrush , a shaving kit and toilet paper ) . Additional toiletry items could have been provided to the applicants had they submitted a written request , but they had failed to do so .

Open - air walks were permitted for TIME a day and there had been no instances of substituting a walk for a bath .

The Government submitted that the applicants had been provided with medical assistance in accordance with the relevant regulations , although at the material time the medical unit had not had a licence to practise medicine . The applicants had undergone an initial medical examination on the date of their entry to the detention centre ; as a result it had been established that they had been healthy . The medical unit of the detention centre had been supplied with the necessary equipment and medicine . Referring to a number of documents , the ORG stated that during the entire period of their detention at the centre , the applicants had neither sought medical help nor complained to the administration about the failure of the medical services to provide them with requested treatment .

In support of their position the ORG submitted , among others , a number of information statements issued by the administration of IZ-CARDINAL/CARDINAL , witness statements of the personnel of the medical unit in NORP , records concerning the number of inmates in the cells ; and copies of some documents from the investigation file .

Until DATE criminal - law matters were governed by LAW of DATE “ the old CCrP ” ) .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) included an undertaking not to leave a town or region , personal security , bail and detention on remand ( LAW ORG ) .

LAW of DATE established that a judicial decision was required before a defendant could be detained or his or her detention extended ( Article CARDINAL ) . Under the old ORG , a decision ordering detention on remand could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .

When deciding whether to remand an accused in custody , the competent authority was required to consider whether there were “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( LAW CCrP ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW CCrP ) . Before DATE , detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) .

The old ORG distinguished CARDINAL types of detention on remand : the first being “ during the investigation ” , that is , while a competent agency – the police or a prosecutor ’s office – investigated the case , and the second “ before the court ” ( or “ during the judicial proceedings ” ) , that is , while the case was being tried in court . Although there was no difference in practice between them ( the detainee was held in the same detention facility ) , the calculation of the time - limits was different .

After arrest the suspect was placed in custody “ during the investigation ” . The maximum permitted period of detention “ during the investigation ” was DATE but it could be extended for DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels . No extension of detention “ during the investigation ” beyond DATE was possible ( LAW ORG ) .

From the date the prosecutor forwarded the case to the trial court , the defendant ’s detention was “ before the court ” ( or “ during the judicial proceedings ” ) . Before DATE the old CCrP set no time - limit for detention “ during the trial ” .

Under the old CCrP , the detainee or his or her counsel or representative could challenge before a court a detention order issued by a prosecutor , and any subsequent extension order . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee ’s counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee ’s release ( LAW ) . An appeal to a higher court lay against the judge ’s decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( Article CARDINAL in fine ) .

Upon receipt of the case - file , the judge was to determine , in particular , whether the defendant should remain in custody or be released pending trial ( LAW and LAW CCrP ) and to rule on any application by the defendant for release ( LAW CCrP ) . If the application was refused , a fresh application could be made once the trial had commenced ( LAW of the old ORG ) .

At any time during the trial the court could order , vary or revoke any preventive measure , including detention on remand ( LAW CCrP ) . An appeal against such a decision lay to a higher court . It was to be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP ) .

Under the old ORG , the duration of the trial was not limited in time .

The DATE Law on the conditions of detention of suspects and accused ( закон « О содержании под стражей подозреваемых и обвиняемых в совершении преступлений DATE ) provided that inmates were entitled to medical assistance ( section CARDINAL ) . If an inmate ’s health deteriorated , the medical officers of the detention facility were obliged to conduct an immediate medical examination and inform him of its results in writing . If the inmate requested to be examined by staff of other medical institutions , the administration of the detention facility was to organise such an examination . If the administration refused , the refusal could be appealed against to a prosecutor or court . If an inmate suffered from a serious disease , the administration of the detention facility was obliged immediately to inform the prosecutor , who could carry out an inquiry into this matter ( section CARDINAL ) .


The applicants are CARDINAL individuals , whose names , nationalities , residences and DATE of birth are listed in the attached annex . They are represented before the ORG by Mr PERSON , a lawyer practicing in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON and later on by PERSON .

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

On DATE at a New Year ’s party in ORG , GPE , a certain ORG , a member of ORG , shot QUANTITY people to death and wounded CARDINAL others upon which he committed suicide .

On DATE each of the applicants instituted civil proceedings before ORG ( PERSON ) against the ORG seeking pecuniary and non - pecuniary damages sustained on account of the bodily injury of death of a close relative . They based their claim on LAW ( ORG o obveznim odnosima ) . The proceedings were subsequently joined .

On DATE ORG issued an interim judgment ( međupresuda ) whereby it found that the State held liability for the damages sustained by the applicants in CARDINAL , the other CARDINAL being ORG ’s personal liability .

Both parties appealed against the judgment .

On DATE the LAW to LAW ( “ the DATE LAW ) entered into force . The amended legislation provided that all proceedings instituted against the ORG for damage caused by members of ORG and police in the performance of their official duties during the Homeland War in GPE be stayed .

On DATE ORG stayed the proceedings pursuant to the above legislation .

On DATE the applicants filed a constitutional complaint concerning the length of the proceedings .

On DATE new legislation on the liability of the ORG for damage caused by members of ORG and police in the performance of their official duties during the Homeland War ( “ the DATE LAW ” ) entered into force .

On DATE ORG resumed the proceedings and the case - file was forwarded to ORG ( Županijski sud u GPE ) , being the appellate court . On DATE this court quashed the interim judgment of DATE and remitted the case to ORG .

ORG held a hearing on DATE .

On DATE ORG ( Ustavni sud PERSON ) found that the applicants’ right to a determination of their civil claim within a reasonable time and their right of access to a court had been violated and awarded each applicant CARDINAL NORP PERSON ( HRK ) as just satisfaction . Furthermore , it ordered ORG to adopt its decision in the shortest time possible but DATE from the publication of ORG decision in ORG .

On DATE ORG pronounced judgment rejecting the applicants’ claim .

On DATE the applicants appealed against the first instance judgment . The proceedings are currently pending before ORG .

Section CARDINAL ( a ) of the LAW to LAW ( Zakon o dopunama PERSON o obveznim odnosima , ORG no . CARDINAL of DATE ) provided that all proceedings instituted against the ORG for damage caused by members of ORG and police in the performance of their official duties during the Homeland War in GPE from CARDINAL DATE to DATE were to be stayed . The DATE Amendments also imposed an obligation on the Government to submit special legislation to ORG regulating liability for such damage within DATE of the Act entering into force .

The LAW on the liability of GPE for damage caused by members of the NORP army and police when acting in their official capacity during the Homeland war ( Zakon o odgovornosti PERSON štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata , ORG no . CARDINAL of DATE ) regulates the conditions under which the ORG is liable to pay compensation for damage caused by members of the army and the police during the Homeland War . It also provides that all proceedings stayed pursuant to the DATE Amendments are to be resumed .

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the court with jurisdiction must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”

LAW , ORG no . CARDINAL of DATE ) reads as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”