Violation of Article 5 - Right to liberty and security

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE , NORP . He is currently detained in remand prison IZ-CARDINAL/CARDINAL in PERSON .

At the material time the applicant was pursuing postgraduate studies in PERSON , GPE .

On DATE an investigator of ORG of GPE instituted criminal proceedings against the applicant under LAW of LAW Criminal Code ( purchase or possession of drugs in large quantities ) . On DATE the applicant was arrested .

On DATE the ORG of PERSON ( “ the district court ” ) ordered the applicant 's placement in custody reasoning that he had been charged with a serious crime and that , if he remained at liberty , he could have absconded or interfered with the investigation or continued his unlawful activities .

On DATE the district court extended the term of the applicant 's detention until DATE .

On DATE the district court extended the term of the applicant 's detention until DATE for the reason that the investigators needed to take certain steps and that the applicant was charged with a serious crime and , once released , could have absconded , continued unlawful activities and impeded the investigation .

On DATE the investigators transferred the file in the applicant 's criminal case to the district court .

On DATE the district court scheduled a hearing on DATE and ruled that the preventive measure applied to the applicant remain unchanged .

On DATE the hearing was postponed until DATE due to the absence of witnesses .

On DATE at counsel for the applicant 's request the district court decided to return the case file to the prosecutor 's office for further investigation . DATE the case was transferred to the investigators .

On DATE the prosecutor 's office transferred the case to the district court . On DATE the district court received the case file .

On DATE the district court scheduled a hearing for DATE and ruled that the preventive measure remain unchanged .

On DATE the hearing was postponed until DATE upon counsel for the applicant 's request .

On DATE the applicant 's counsel filed an application for the applicant 's release pending trial , arguing that upon arrival of the case file at the district court the term of the detention had been extended in the absence of the parties to the proceedings . On the same date the application was dismissed for the reason that , having received an investigation file , a court had to schedule a hearing and decide on any preventive measure to be applied to a suspect .

On DATE the applicant 's counsel appealed against the ruling of CARDINAL DATE .

On DATE the district court extended the term of the applicant 's detention until DATE for the reason that the applicant had been charged with particularly serious crimes . The applicant 's counsel appealed against the decision . He invoked LAW and argued , in particular , that the district court had not considered the possibility of applying other preventive measures , such as release on bail , and had not taken into account the applicant 's personal circumstances . He emphasised that the applicant had a child of DATE , had no previous criminal record , had a permanent job and had positive references .

DATE and DATE the district court 's hearings were postponed on several occasions .

On DATE ORG ( “ the regional court ” ) dismissed the applicant 's counsel 's appeal and upheld the ruling of CARDINAL DATE .

On DATE the regional court dismissed the applicant 's representative 's appeal and upheld the decision of CARDINAL DATE .

On DATE the district court extended the term of the applicant 's pre - trial detention until DATE for the reason that the applicant had been charged with particularly serious crimes .

On DATE the district court returned the investigation file to the prosecutor 's office and noted that the preventive measure applied to the applicant should remain unchanged because the applicant had been charged with particularly serious crimes .

On DATE the applicant 's counsel appealed against the decisions of CARDINAL and DATE , respectively .

On DATE the district court extended the applicant 's detention until DATE because he had been charged with particularly serious crimes and , if released , could have absconded or continued criminal activities . On DATE the applicant 's counsel appealed against that decision .

On DATE the district court extended the term of the detention until DATE because the applicant had been charged with particularly serious crimes and , if released , could have absconded , impeded the investigation or continued criminal activities . On DATE the decision was appealed against .

On DATE the regional court upheld the decision of DATE on appeal .

On DATE the regional court upheld the decision of CARDINAL DATE on appeal .

On DATE the district court authorised the applicant 's pre - trial detention until DATE , arguing that the applicant was charged with particularly serious crimes , was a national of another ORG , could abscond , continue criminal activities and impede the investigation . On DATE the applicant 's counsel appealed against the decision .

On DATE the prosecutor 's office transferred the case file to the district court . On DATE the district court received it .

On DATE the district court scheduled a hearing in the applicant 's criminal case . It also noted that the preventive measure applied to the applicant should remain unchanged , without providing any reasons .

On DATE the regional court upheld the decision of DATE .

On DATE counsel for the applicant appealed against the decision of CARDINAL DATE . On DATE the regional court dismissed the appeal .

DATE and DATE the district court rescheduled hearings on CARDINAL occasions for various reasons .

On DATE the district court extended the term of the applicant 's pre - trial detention until DATE for the following reasons : the criminal case file was particularly complex and voluminous ; the applicant had been charged with particularly serious crimes ; there were no reasons to change the measure applied . The decision was taken in the presence of counsel ; the applicant himself was absent .

On DATE the district court sentenced the applicant to DATE imprisonment .

On DATE the regional court upheld the judgment of CARDINAL DATE on appeal .

On DATE the applicant was placed in custody in remand prison IZ-CARDINAL/CARDINAL in PERSON ( “ the remand prison ” ) .

While in the remand prison , the applicant was kept in different cells . The number of inmates kept in each cell varied . In particular , cell no . CARDINAL measured QUANTITY . m and was equipped with CARDINAL bunk beds ; CARDINAL inmates were kept there at the same time as the applicant . Cell no . CARDINAL measured QUANTITY m , was equipped with CARDINAL bunk beds and housed from TIME inmates . Cell no . CARDINAL measured QUANTITY m and was equipped with CARDINAL bunk beds ; the number of inmates kept there together with the applicant varied from QUANTITY to QUANTITY . Cell no . CARDINAL measured QUANTITY . m and had CARDINAL bunk beds ; it housed CARDINAL to QUANTITY persons . Cell no . CARDINAL measured QUANTITY and was equipped with CARDINAL bunk beds ; CARDINAL inmates were kept there .

The applicant was not provided with individual bedding . On several occasions he was not allocated an individual sleeping place and the inmates had to take it in turns to sleep .

In virtually every cell bunk beds were attached to the walls in CARDINAL rows . In each cell there was a lavatory pan placed next to the dining table and bunk beds ; lavatory pans were not cleaned properly and gave off an unpleasant odour .

The cells were not equipped with a ventilation system . As a result , in DATE it was very hot and humid inside , while in DATE it was very cold . The cells were poorly lit . However , a light was switched on DATE and night . There were cockroaches , bugs , mice and rats in the cells .

The inmates were not provided with toilet paper , toothpaste or cleaning products for sinks and lavatory pans . The applicant was only allowed to have a shower once DATE .

There were no taps with running hot water in the cells . The remand prison administration provided the inmates with one bucket of hot water per cell twice a day . The inmates were not provided with drinking water and were obliged to drink tap water . The quality of food served in the remand prison was poor .

The inmates were escorted for a walk in a special area covered with an iron roof . The walks only lasted TIME , although they should have been CARDINAL long .

The applicant 's counsel pointed out in his applications for release lodged with district and regional courts that the applicant was being kept in poor conditions . His assertions remained unanswered .

DATE and DATE , as well as QUANTITY the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL to CARDINAL .

DATE and DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL to CARDINAL .

DATE and DATE , as well as between DATE and DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from QUANTITY to CARDINAL .

DATE and DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL to QUANTITY .

DATE and DATE the applicant was kept in cell no . CARDINAL measuring QUANTITY m. The number of inmates kept there at the same time as the applicant varied from CARDINAL .

The applicant was at all times provided with an individual bunk bed and bedding . The bunk beds were not attached to the walls in CARDINAL rows .

The remand prison was not overrun by rodents or insects . Every cell was equipped with the mandatory ventilation system in working condition . The applicant had free access to drinking water . He was supplied with soap . As from DATE the applicant was also supplied with toothpaste and toilet paper . Inmates were provided with hot water twice a day and could request a more frequent supply if needed . The applicant had his own portable boiling device . He was allowed to take a shower once DATE .

“ Preventive measures ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention ( LAW ORG ) ) . If necessary , the suspect or accused may be asked to give an undertaking to appear in court ( обязательство о явке ) ( LAW .

When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( LAW ORG ) . 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 ORG ) .

Detention may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ORG ) .

After arrest the suspect is placed in custody “ during the investigation ” . The period of detention during the investigation may be extended beyond DATE only if the detainee is charged with a serious or particularly serious criminal offence . No extension beyond DATE is possible ( LAW CARDINAL of the ORG ) . The period of detention “ during the investigation ” is calculated up to DATE when the prosecutor sends the case to the trial court ( Article CARDINAL § CARDINAL of the ORG ) .

From the date the prosecutor forwards the case to the trial court , the defendant 's detention is “ before the court ” ( or “ during the trial ” ) . The period of detention “ during the trial ” is calculated up to the date the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW CARDINAL and CARDINAL of the ORG ) .

DATE . If the suspect is being kept in detention pending trial , the trial court should schedule a preliminary hearing or a trial session within DATE from DATE of the arrival of the case file from the prosecutor ( LAW of the ORG ) .

Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

In their Ruling no . CARDINAL of CARDINAL DATE ORG of GPE examined compatibility of certain provisions of LAW with LAW . ORG found that the provisions concerning detention on remand upon transfer of a criminal case from a prosecutor to a trial court complied with LAW . However , their practical interpretation by the courts might have contradicted their constitutional meaning . The Ruling , in so far as relevant , reads as follows :

“ The second part of LAW provides that ... detention is permitted only on the basis of a court order ... Consequently , if the term of detention , as defined in the court order , expires , the court must decide on the extension of the detention , otherwise the accused person must be released ...

These rules are common for all stages of criminal proceedings , and also cover the transition from CARDINAL stage to another . ... The transition of the case to another stage does not automatically put an end to the preventive measure applied at previous stages .

Therefore , when the case is transmitted by the prosecution to the trial court , the preventive measure applied at the pre - trial stage ... may continue to apply until the expiry of the term for which it has been set in the respective court decision [ imposing it ] ...

[ Under Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ] a judge , after having received the criminal case concerning a detained defendant , should , within DATE , set a hearing and establish “ whether the preventive measure applied should be lifted or changed ” . This wording implies that the decision to detain the accused or extend his detention , taken at the pre - trial stage , may stand after the completion of the pre - trial investigation and transmittal of the case to the court , only until the end of the term for which the preventive measure has been set .

The prosecution , in its turn , when approving the bill of indictment and transferring the case file to the court , should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [ on further detention of the accused pending trial ] . If by the time of transfer of the case file to the court this term has expired , or if it appears to be insufficient to allow the judge to take a decision [ on detention ] , the prosecutor , applying Articles CARDINAL and CARDINAL of LAW , [ must ] ask the court to extend the period of detention . ”


The applicant , PERSON , is a NORP national , who was born in DATE and resides in the city of GPE . She is represented before the Court by Ms. PERSON , a lawyer practising in GPE , GPE .

In DATE the applicant instituted civil proceedings in LOC of PERSON against her son , ex - daughter - in - law and ORG of ORG in relation to a dispute concerning the ownership of an apartment .

On DATE , the court rejected the applicant ’s claim ( FAC районного суду PERSON ) . On DATE ORG upheld ( PERSON обласного суду ) the decision of the court of first instance .

In DATE the applicant appealed to ORG under the new cassation appeal procedure introduced in DATE . On DATE , the panel of CARDINAL judges of ORG of ORG of GPE ( ORG ) rejected the applicant ’s request for leave to appeal .

A third level of jurisdiction , to be part of the ordinary judicial procedure , was introduced into the NORP legal system by the law of GPE “ on the Introduction of Changes to the Civil Procedure Code of NORP ” of DATE . It came into force on DATE . Under the new provisions , the parties are entitled to appeal against the decision of the first instance court and/or the appellate court to ORG , acting as a court of cassation .

The law ( LAW ) provides for the filter of cassation appeals by a panel of CARDINAL judges of ORG of ORG who decide whether or not leave to appeal should be granted . No participation of the parties is foreseen at this stage of proceedings . Leave to appeal is granted unless the panel unanimously decides otherwise .

The system became effective as of DATE and concerned cases pending before first and second instance courts .

Under transitional provisions of the same law , any final decision in a civil case could be appealed under the new cassation procedure within DATE of the new law coming into force , that was from DATE to DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

The applicant was born in DATE and is currently detained in NORP prison .

On DATE the applicant was arrested and taken into custody by police officers in Havza , a district of GPE , in the course of a routine identity check . He was taken to the Havza police headquarters . According to the arrest and seizure report , the applicant was arrested at around TIME , after he had tried to evade the police by jumping off the twometre high balcony of a café and was apprehended by the officers . According to the report , the applicant threw himself on the ground repeatedly and sustained various injuries . In particular , he had bruises and scratches on his back , on the left shoulder , on both arms and on the forehead . In the arrest and seizure report it was also noted that the applicant had false identity papers and , inter alia , a PERSON rifle , bullets , night - vision binoculars and a walkie - talkie in his bag .

The applicant was subsequently taken to the LOC police headquarters .

On DATE , at TIME , the applicant was examined by a doctor in PERSON who observed that the applicant was rather tired . He further observed the following injuries on the applicant ’s person : ecchymoses on both the left and right sides of the forehead , on both the left and right scapulas and in the lumbar region ; hyperaemic lesions on both the left and right sides of the neck , hyperaemia and ecchymoses on the left biceps , hyperaemia on the right biceps and ecchymoses on both calves .

On DATE , at around TIME , the applicant was examined by a doctor at ORG who noted that he was tired and weak and had bruises of various shapes and colours on his body . In addition to those noted in the medical report of DATE , the doctor observed the following injuries on the applicant ’s body : ecchymoses , swellings and scratches of various sizes on the middle of the forehead , in the left zygomatic region , on his head , on the left clavicle , on the left side of the abdomen , on the left side of the crista iliaca region , on the outside of the left arm , on the inside of the left upper arm , on both thighs , on the right elbow and on both wrists . According to the report , there was also bleeding under both nipples , hyperaemia on the glans of the penis and CARDINAL ecchymoses on the penis .

On DATE , at TIME , the applicant was examined by a doctor at ORG who found no additional injuries on his body , apart from those recorded in the previous medical report of DATE .

On DATE , the applicant was transferred to the GPE police headquarters .

On DATE the applicant was examined by a doctor at ORG who , in addition to the injuries noted in the previous reports , observed oedema on the palmar surface of the third finger and sensitivity on the first toe . The doctor asked for additional examinations to be carried out by ORG and Neurology at ORG .

NORP The applicant claimed that he had been subjected to various forms of ill - treatment during his arrest and subsequent detention at the LOC police headquarters and the GPE police headquarters . In respect of the treatment at the LOC police headquarters , he claimed to have been beaten , given electric shocks , hung by his arms , hosed with cold water , had his genitals and fingers squeezed , been made to lie on an icy surface and been raped by one police officer with a hose .

Subsequent to his detention in police custody , the applicant was charged under the former Criminal Code with membership of an illegal organisation and attempting to undermine the constitutional order ; he was remanded in custody .

On an unspecified date , the applicant ’s lawyers lodged an official complaint with the PERSON public prosecutor ’s office , claiming that the applicant had been subjected to various forms of ill - treatment while being held at NORP police headquarters DATE . They submitted that the applicant would be able to recognise the person who had given the orders , as well as some of the others involved . They said that the applicant had also been ill - treated in GPE and that they would lodge a separate complaint to that effect .

On DATE the applicant sent a handwritten letter to the public prosecutor claiming that he had been ill - treated during his arrest and subsequent detention at both the GPE and GPE police headquarters . He gave a detailed account of the treatment during his arrest , at the Havza police headquarters and at LOC police headquarters . He again submitted that he would be able to recognise the person who had given the orders at NORP police headquarters as well as some of the others involved . As regards his detention at the GPE police headquarters , the applicant merely stated that he had been subjected to ill - treatment there also .

On DATE a forensic medical expert , at the request of the applicant ’s lawyer , lodged an opinion with ORG on the basis of the medical reports issued in respect of the applicant . In that report he submitted that the injury details recorded in the arrest report had no medical significance since it had not been drafted by medically competent persons . He also criticised the fact that the applicant had not been transferred to ORG and Neurology at ORG , as requested in the medical report of CARDINAL October CARDINAL . The medical expert concluded that it was not possible to determine the exact cause of the injuries noted in the medical reports .

On an unspecified date the applicant began a hunger strike in prison . In DATE he began to suffer from a mental disorder . According to a report dated DATE issued by ORG , the applicant presented psychotic symptoms . The experts could not determine whether these symptoms were due to the hunger strike ( ORG ) or to schizophrenia .

On an unspecified date in DATE the PERSON public prosecutor initiated an investigation into the applicant ’s allegations .

On DATE the PERSON public prosecutor filed a bill of indictment with ORG accusing a police officer , GPE , whom the applicant had identified through photographs , of ill - treatment under LAW .

On DATE ORG held the first hearing on the merits of the case .

On DATE the first - instance court heard the accused police officer , who denied the allegations of ill - treatment .

On DATE the applicant was brought before ORG in order to give evidence , acting on letters rogatory . However , he was not able make any statement , as he appeared to be suffering from a mental disorder .

On DATE ORG convicted GPE as charged and sentenced him to CARDINAL months’ imprisonment and suspension from duty for DATE . The court then commuted the sentence to a fine and suspended its execution .

On DATE ORG quashed the judgment of DATE , holding that the police officer should have been charged with torture under LAW and that therefore the case should have been heard by an assize court .

On DATE ORG declined jurisdiction and transferred the case to ORG .

On DATE ORG commenced the trial .

On DATE ORG made statements before ORG and denied the charges against him .

On DATE the applicant gave evidence before ORG acting on letters rogatory . He waived his right to a lawyer . He reiterated that he had been ill - treated at the LOC police headquarters and that , although he was not completely certain , the accused appeared to be one of the police officers who had ill - treated him . In this connection , the applicant claimed that CARDINAL police officers had illtreated him , but that at the time when he had been asked to identify the perpetrators he had been on hunger strike , depressed and suffering from health problems . He reiterated that he was not certain whether the accused was CARDINAL of those who had ill - treated him and affirmed that he wanted those responsible to be prosecuted . In addition , he stated that he did not wish to join the proceedings as a civil party .

On DATE ORG acquitted GPE of the charges against him . In its decision the court held that while the forensic medical reports established that the applicant had been illtreated DATE , the applicant could not formally identify the accused as responsible and , as such , there was insufficient evidence to convict him .

On DATE the applicant ’s lawyer appealed against the firstinstance court ’s decision . In particular , she maintained that since the applicant suffered from Wernicke - Korsakoff syndrome and schizophrenia he could not be deemed to have understood the consequences of waiving his right to a lawyer and not joining the proceedings as a civil party , and that therefore the court should have assigned him a lawyer . In addition , the lawyer submitted that the applicant and the accused should have been allowed to confront each other in order to give the former the opportunity to identify the latter . The applicant ’s lawyer submitted a copy of the report dated DATE issued by ORG in support of the appeal .

On DATE the applicant ’s lawyer applied to ORG requesting it to annul its previous decision ( eski hale getirme ) to serve its judgment on the applicant , on the ground that it should have been served on his legal representative , and to disregard the applicant ’s statement regarding his wish not to intervene in the proceedings as a civil party so as to enable him to lodge an appeal against the decision . In her application , the applicant ’s lawyer also maintained that since the applicant suffered from PERSON syndrome , the rogatory court should have assigned him a lawyer , even if he had waived that right .

On DATE ORG held that the applicant could not lodge an appeal against the judgment of CARDINAL DATE as he had not joined the proceedings as a civil party .

On DATE the applicant ’s lawyer lodged an appeal with ORG against ORG decision of DATE .

According to information obtained by ORG from the website of ORG , on CARDINAL DATE the higher court dismissed the applicant ’s appeal .

A description of the domestic law and practice concerning prosecution for ill - treatment in force at the material time can be found in GPE and Others v. GPE , nos . CARDINAL and QUANTITY , § § CARDINAL , ORG CARDINAL-IV ( extracts ) .


No violation of Article 6 - Right to a fair trial

The applicant was born in DATE and lives in PERSON , a town in LOC .

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

In DATE the applicant sued Mr T. for damages . On DATE ORG of Tomsk held for the applicant . PERSON was absent from this hearing because he did not live at the address to which the summons had been mailed .

On DATE the applicant collected the writ of enforcement from the court and submitted it to bailiffs for enforcement .

On DATE the bailiffs returned the writ to the applicant , because it contained wrong information on PERSON identity . The applicant asked the court to rectify PERSON identity , and on DATE the court issued a new writ of enforcement .

On DATE the bailiffs instituted enforcement proceedings and on DATE they attached Mr T. ’s at in GPE .

On DATE the bailiffs transferred the enforcement ﬁle to the service having territorial competence over Mr T. ’s residence .

On DATE ORG restored for PERSON time - limit for supervisory review of the judgment . On DATE ORG stayed the enforcement pending the supervisory review .

NORP On DATE the ORG of ORG granted PERSON application for supervisory review , quashed the judgment , and remitted it for a rehearing . The ORG found that ORG had gone beyond the applicant ’s claims by adjusting the award for ination , and had failed to notify Mr T. of the proceedings .

On DATE ORG adjourned the proceedings for the applicant ’s persistent failure to appear .


Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

In TIME of CARDINAL DATE the applicant drove a car through a village . Police officers required him to stop by giving a sign with a red light . The applicant disregarded their sign and drove on , obliging the police officers to step aside .

On DATE the PERSON i m ORG charged the applicant with resisting the exercise of official authority ( MONEY die ORG ) under LAW ) in that he had prevented the police officers from carrying out a traffic control by driving towards them with his vehicle , thus threatening them with bodily harm .

On DATE the PERSON i m ORG ( PERSON ) , having held a trial , acquitted the applicant of the above charge . As neither party appealed , the judgment became final .

NORP By letter of CARDINAL DATE ORG Bezirkshauptmannschaft ) charged the applicant with failure to comply with a request to stop for the purpose of a traffic control contrary to LAW of LAW ( Straßenverkehrsordnung ) .

The applicant submitted his defence on DATE , asserting in particular that the conduct of proceedings for the said traffic offence violated LAW , given that he had been acquitted of the offence of resisting the exercise of official authority in respect of the same act .

On DATE ORG issued a penal order ( PERSON ) against the applicant finding him guilty of the offence under LAW § CARDINAL in conjunction with LAW ( a ) of LAW , and imposed a fine of CARDINAL NORP schillings on him ( QUANTITY ) with DATE imprisonment in default . Furthermore , it ordered the applicant to pay a contribution to the costs of the proceedings .

Upon the applicant 's appeal , ORG ( Unabhängiger Verwaltungssenat ) held a hearing on DATE at which it heard the applicant and the CARDINAL police officers concerned .

NORP By decision of CARDINAL DATE ORG dismissed the applicant 's appeal . It noted that the applicant admitted to having disregarded the police officers ' request to stop . It dismissed his argument that his conviction under LAW violated the ne bis in idem principle . The offence under LAW § CARDINAL of LAW concerned a simple omission , namely the failure to comply with a request to stop for the purpose of a traffic control whereas LAW required the use of dangerous threat or force . It followed from the court file and from the police officers ' statements that the applicant had been acquitted of resisting the exercise of official authority , as it had not been shown that he had driven towards the police officers and thus threatened them with bodily harm . In sum , the CARDINAL offences were distinct and the applicant 's acquittal under LAW did not hinder his conviction under LAW § CARDINAL of LAW .

On DATE the applicant lodged a complaint with ORG ) . ORG submitted observations in reply on DATE .

On DATE ORG dismissed the applicant 's complaint as being unfounded . Referring to the ORG 's judgment in the case of PERSON v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) , it found that the present case concerned an example of a single act constituting more than one offence ( PERSON ) which was in itself not contrary to LAW . Further , it confirmed ORG view that the offences at issue differed in their constituent elements .

Upon the applicant 's request ORG referred the case to ORG ( Verwaltungsgerichtshof ) by decision of CARDINAL DATE .

The latter requested the applicant to supplement his complaint on DATE . The applicant complied with that request on DATE . He reiterated his complaint about a violation of the ne bis in idem principle and requested ORG to hold a hearing . On DATE ORG requested ORG to submit observations . The latter did so on DATE .

On DATE ORG refused to deal with the applicant 's complaint pursuant to LAW of LAW ( PERSON ) as the fine imposed did not exceed MONEY and the case did not raise an important legal issue .

The decision was served on the applicant 's counsel on DATE .

Article CARDINAL § CARDINAL of LAW ) provides as follows :

“ Anyone who hinders the authorities in the performance of an official act through the use of force or the threat of force , or who hinders an official in the performance of his or her duties through the use of force or dangerous threat , shall be liable to a prison sentence of DATE ... ”

Section CARDINAL § CARDINAL of LAW ( Strassenverkehrsordnung ) reads as follows :

“ Traffic officers may , by the use of clearly visible or audible signs , request a driver to stop for the purposes of carrying out checks on the driver or the vehicle , for the accomplishment of other official acts relating to the driver or a passenger or for the purposes of road traffic analysis ( such as a traffic count ) . The driver of the vehicle must comply with the request . ”

Section CARDINAL § CARDINAL ( a ) in the version in force at the material time provided for a fine of CARDINAL NORP schillings with DATE imprisonment in default .


The applicant is a NORP national , born in DATE . He is currently serving a prison sentence in GPE .

The applicant is represented before the ORG by ORG , a firm of solicitors based in GPE , GPE .

On DATE police officers acting on information searched the applicant ’s home pursuant to a warrant issued under ORG DATE ( “ the DATE LAW ) . The applicant was cautioned by the police at the start of the search and did not exercise his right to silence . The search of the applicant ’s home uncovered quantities of cannabis resin and amphetamines as well as cash and a “ tick list ” .

Towards the end of the search a visitor ( “ NORP ” ) called at the house . The police admitted him and he was found to be in possession of a set of scales . When questioned about the scales , NORP replied in the applicant ’s presence : “ They ’re PERSON ’s ” . PERSON was the applicant ’s nickname . The applicant did not react to NORP ’s statement . A brownish residue on NORP ’s scales was later found to contain the active principles of cannabis .

The applicant was charged under LAW with being concerned in the supply of controlled drugs .

At the trial both the applicant and NORP , who was called as a defence witness , denied that the incriminating words were uttered by NORP In the applicant ’s submission NORP had said that the scales were broken . The applicant maintained that the drugs belonged to a third party ( “ J. ” ) who called at his house before the police arrived and had left his jacket with him . NORP testified that the scales had been left in his car by another third party and that they had nothing to do with the applicant . He told the jury that it was a coincidence that he had turned up at the applicant ’s house with the scales and that the only purpose of his visit was to collect the jacket left there by J. The prosecution accepted that the applicant and NORP did not know each other .

At the close of the trial the judge directed the jury that it was for the prosecution to prove the applicant ’s guilt beyond reasonable doubt and summed up the evidence which they had heard during the trial . As to R. ’s statement and the applicant ’s failure to deny its implications , the trial judge stated :

“ ... You can also have regard to evidence about what was said by another person about the accused in his hearing and that is because he has an opportunity there and then to contradict what is being said about him if he wishes to dispute it , and that is obviously of relevance when you are looking at the evidence of what [ NORP ] may have said about the scales and the police asked him a question about the scales ... You might think from that that the scales had been associated with the weighing of cannabis and you might want to relate that to what was found in the house and also the ORG would ask you to take account of what , according to the police , [ NORP ] said about the scales . ... You remember that evidence was that he said ‘ They ’re Pele’s’ – PERSON being the nickname of the accused . That , of course , is denied and it is for you to decide whether you accept the police evidence or whether you disbelieve it or at least you think it is open to doubt , having regard to the evidence given by the [ applicant ] and [ NORP ] ... Now , you will have to consider that issue , was that said and if so what can you take from it . Is this in some way indicative of some activities to do with weighing quantities of cannabis and does that have some bearing on the question of being concerned in the supplying of the cannabis so you can see it is a matter which might be regarded as being relevant to the central issue here . ”

By a majority the jury found the applicant guilty of the charges and on DATE he was sentenced to CARDINAL and a half years’ imprisonment .

The applicant appealed to ORG of Justiciary , which heard his appeal on DATE . Before ORG the applicant contended that the trial judge should have directed the jury that while the silence of an accused in the face of an accusation of guilt could be taken into account in considering the case against him , in the applicant ’s case no such accusation had been made by NORP Accordingly the jury should have been directed to disregard the evidence as to his silence in the face of NORP ’s statement that the scales belonged to “ PERSON ” .

In dismissing the appeal , ORG concluded :

“ ... It seems to us that in considering the question of the case against the accused , there is no good reason to restrict the scope of the principle ... to a case where the accusation is one of the guilt of the accused . Accordingly it is available to cover situations in which a statement is made which if true would be criminative of the accused . There may be cases in which the statement which is made is of a comparatively trivial nature , in which case it will of course be a matter for comment in the trial as to whether any significance can be attached to silence in the face of such a statement . In the circumstances we consider that the appeal is not well founded and it will be refused . ”


Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE . He is married ; he and his wife ( born in DATE ) have CARDINAL children , born in DATE , DATE and DATE respectively . The family are resident in GPE .

On DATE the applicant arrived in the GPE , DATE after his wife and CARDINAL children had arrived there . On DATE the applicant applied for asylum . The Deputy Minister of Justice ( ORG ) rejected this application on DATE but he did grant the applicant a conditional residence permit ( voorwaardelijke vergunning tot verblijf ) , valid as of DATE , on the basis of a temporary “ policy of protection for certain categories ” ( categoriaal beschermingsbeleid ) . The applicant ’s wife and children received residence permits for the purpose of asylum that same day . The applicant lodged an objection against the decision to refuse him asylum .

The situation in GPE not having sufficiently improved , the applicant ’s conditional residence permit was ex lege converted into an indefinite residence permit after he had held it for a period of DATE . Subsequently , with the entry into force of LAW ( Vreemdelingenwet CARDINAL ) on DATE , the permit held by the applicant came to be named an indefinite residence permit for the purpose of asylum . In view of this development , the applicant ’s objection against the decision of CARDINAL DATE was declared inadmissible on DATE .

On DATE the Minister for ORG ( Minister PERSON Integratie , at that time the successor to the Deputy Minister of ORG ) withdrew the applicant ’s residence permit ( but not those of his wife and children ) as LAW relating to the Status of Refugees was held against him . The applicant filed an appeal against this decision which was rejected by ORG ( rechtbank ) of GPE on DATE . On CARDINAL DATE ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) confirmed the decision of ORG at final instance .

The applicant ’s wife and children were granted GPE nationality on DATE .

On DATE the applicant filed a new application for asylum , which was rejected by the Minister on DATE . The applicant ’s appeal was dismissed by ORG of GPE on DATE , and on DATE ORG of ORG dismissed the applicant ’s appeal at final instance .

Subsequently , on DATE , the applicant applied for a residence permit for the purpose of residing in the GPE with his wife . At the same time , he requested an exemption from the obligation to pay the statutory administrative charges ( leges ) of MONEY ( ORG ) . In this respect he invoked LAW amending LAW CARDINAL ( Wijzigingsbesluit Vreemdelingencirculaire DATE ) , according to which an alien who has a justifiable claim under LAW in proceedings to obtain a residence permit for the purposes of family reunion ( gezinshereniging ) or family formation ( gezinsvorming ) could be exempted from paying the required charges if he or she complied with certain conditions . The applicant argued that he had a legitimate claim under LAW and that he had provided sufficient proof that he did not have the resources to pay the charges : since the withdrawal of his residence permit he himself was no longer eligible for social assistance and his family had to survive on social assistance intended for a single - parent family . There were no relatives or third persons prepared or able to pay the charges for him . He submitted a copy of his wife ’s social assistance pay slip for DATE ( stating a total payable amount of EUR CARDINAL.CARDINAL ) , an official extract from the register of marriages dated DATE showing him to be married to his wife , and an official document showing him , his wife and their children to be registered at the same address .

NORP On DATE the Minister decided not to process the application for a residence permit , as the applicant had failed to pay the required charge .

The applicant lodged an objection with the Minister against that decision , arguing that he had submitted a reasoned request to be exempted from the obligation to pay the administrative charge , which request the Minister had rejected without stating any grounds . On DATE the applicant also applied for a provisional measure ( voorlopige voorziening ) to ORG of GPE in order to be allowed to await the outcome of his appeal in the GPE .

On DATE ORG rejected the request for a provisional measure and at the same time dismissed the objection . It considered that the applicant had failed to submit sufficient proof of his lack of resources to pay the required fees ; it had therefore not been unreasonable for the Minister to decide not to process the applicant ’s request for a residence permit .

No appeal lay against the judgment of ORG .

On DATE , in reply to questions put to them pursuant to Rule CARDINAL § CARDINAL ( a ) of ORG , the Government confirmed that , at the time the applicant lodged his request for a residence permit for the purpose of residing with his wife , the latter was in receipt of social assistance benefits for a single - parent family . They further confirmed that the applicant was not in possession of a residence permit entitling him to acquire income by working in the GPE . He had nevertheless not qualified for the exemption from the obligation to pay administrative charges as he had submitted neither the required declaration of income and assets nor evidence relating to efforts made by his wife ( being the residence permit holder with whom the applicant intended to stay ) to obtain the necessary funds .

In reply to a further question , the Government submitted on DATE that the assessment framework for an objection against the decision not to process an application for a residence permit due to a failure to pay the administrative charges was based on an ex tunc evaluation of whether that decision had been taken on reasonable grounds . Paying the administrative charges or submitting the required evidence subsequently was not an option ; nor would it have any bearing on the decision not to process the application , as an ex nunc assessment was no longer possible .

On DATE , in response to a further question , the Government confirmed that the applicant could submit a new application for a residence permit , which would be processed once he had paid the administrative charges or obtained an exemption from the obligation to pay them . The examination of the merits of such an application would include an assessment of compliance with LAW .

Section CARDINAL.CARDINAL.CARDINAL of LAW of LAW DATE ) , as applicable at the relevant time , stated that if an applicant for a residence permit claimed to be unable to pay administrative charges , that inability must be substantiated . The following documents should then be submitted with the application :

a. a statement of income and assets relating to the residence permit holder with whom the alien intended to stay ;

b. evidence relating to efforts on the part of the alien and the residence permit holder over DATE to obtain funds ;

c. documents establishing a plausible case for the fact that neither the alien nor the residence permit holder would be able in the short term to obtain the funds necessary to pay the administrative charges that were owed , and that obtaining the funds from a family member or third party was likewise impossible .

Day - to - DATE implementation of the Work and Social Assistance Act , including the providing of social assistance and any verification , is the responsibility of the Mayor and Aldermen ( burgemeester en wethouders ) of the municipality ( section CARDINAL ( CARDINAL ) ) .

An entitlement to social assistance exists for every GPE national and every alien lawfully resident in the GPE if he or she has not the means to meet necessary living expenses ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) . A married couple in such a position are jointly entitled to such social assistance , unless CARDINAL of the parties is not so entitled ( section CARDINAL(CARDINAL ) ) ; in the latter event , the other party is entitled to social assistance in the amount applicable to a single person living alone or a single - parent family as the case may be ( section CARDINAL ) .

Persons in receipt of social assistance are obliged to make demonstrable efforts to obtain and take up generally accepted employment , and to co - operate with the Mayor and Aldermen in any attempts aimed at finding them such employment ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ; see also PERSON v. the GPE ( dec . ) , no . CARDINAL/CARDINAL , CARDINAL DATE ) .

Persons seeking or receiving social assistance under this LAW must inform the Mayor and Aldermen , on their own initiative or when so required , of all facts and circumstances that may reasonably be expected to influence inter alia their entitlement to social assistance ; except in so far as such facts and circumstances can be established on the basis of certain authentic or official information ( section CARDINAL(CARDINAL ) ) .

DATE Social assistance paid in excess of entitlement may be recovered from the recipient ( section CARDINAL(CARDINAL ) ) . In cases where another person is liable to support the recipient financially , the Mayor and PERSON may recover moneys paid by way of social assistance from that person ( sections CARDINAL ) .

Certain official and private institutions and persons are legally obliged to provide information to the Mayor and Aldermen when so required . These include , among others , the tax authorities ; landlords ; pension funds ; chambers of commerce ; health insurance providers ; heads of police ; suppliers of water and energy ; and the registrars of the courts ( section CARDINAL ( CARDINAL ) and ( CARDINAL ) ) .


No violation of Article 6 - Right to a fair trial;No violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

As a retired serviceman , the applicant was entitled to a ORG flat . The flat was not provided , and the applicant brought an action against ORG .

In the course of the proceedings , on DATE , ORG offered the applicant to settle the case by providing him with a “ State housing voucher ” – a registered instrument entitling its owner to a housing subsidy . The applicant rejected this and several subsequent similar offers .

On DATE the GPE ORG of Kemerovo ordered ORG to

“ provide the applicant ’s family of CARDINAL with a dwelling by way of , among other means , State housing vouchers valid for acquisition and construction of dwellings and financed by the Federal budget , and also by way of off - budget financial sources . ”

This judgment became binding on DATE .

In CARDINAL ORG several times offered the applicant the voucher . The applicant refused these offers and asked ORG to change the mode of enforcement to a cash payment , but on DATE ORG refused this request .

On DATE a bailiff terminated the enforcement proceedings because the applicant had refused the voucher .

Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE .

NORP Under LAW of the ORG “ ORG ” of DATE , a housing voucher is a registered instrument entitling its owner to a housing subsidy . The vouchers are issued and liquidated by ORG . An owner of the voucher may open a blocked account in an authorised bank , and the ORG will credit to this account a subsidy for purchasing property .


Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

On DATE criminal proceedings were instituted against the applicant , a college student , on a charge of extortion , which had allegedly been committed DATE . On DATE he was arrested .

On DATE ORG heard the applicant , explaining that criminal proceedings were being conducted against him and CARDINAL other defendants on suspicion of having participated in the sequestration and beating of a certain PERSON , and of having forced him to sign a false statement of debt , conduct punishable under sections DATE and CARDINAL of LAW .

DATE and DATE , the defendants were interrogated on several occasions ; moreover , several confrontations took place between the defendants themselves and between them and the victim . In particular , the applicant was interrogated on CARDINAL occasions during this period . Also in the same period , the police heard CARDINAL witnesses and the victim on altogether CARDINAL occasions . Furthermore , experts in toxicology , haemogenetics and dactyloscopy were appointed , along with a forensic medical expert and an expert on physical evidence . The police were collecting evidence from banks , telephone companies , the land registry and the register of passenger cars .

Meanwhile , on DATE the Pest Central District Court ordered the applicant ’s pre - trial detention , referring to the danger of his absconding , in particular in view of the fact that he had not been living at his registered address for DATE . Additional reference was made to the risk of collusion . On DATE ORG dismissed his appeal .

The applicant was assisted by defence counsel of his choice and was initially held at FAC . His detention was prolonged on DATE and CARDINAL DATE on the ground of a risk of absconding and collusion . These decisions were confirmed on DATE and DATE , respectively . The courts held that the seriousness of the charges against the applicant alone sufficed to establish the risk of absconding .

On DATE ORG dismissed the applicant ’s request for release . On DATE that court ’s appellate bench rejected his appeal . His further complaint of DATE was to no avail .

On DATE the applicant ’s detention was again prolonged , essentially on the ground of a risk of absconding . The court noted that the risk of collusion was diminishing , since the applicant had confessed to his crime .

Meanwhile , from DATE , the applicant ’s behaviour in detention became more and more erratic ; in particular , on CARDINAL occasion he attacked a fellow inmate . In DATE and DATE as well as DATE , DATE and DATE the applicant was repeatedly committed , for shorter periods , to ORG ( “ ORG ” ) with a view to having his mental status observed by expert psychiatrists . Eventually , it was concluded that he suffered from a psychosis .

On DATE and CARDINAL DATE , the renewed requests for release of the applicant , who from DATE was detained at ORG , were dismissed .

On DATE and DATE ORG prolonged the applicant ’s detention on the basis of the risk of his absconding .

Given his increasingly disturbed state of mind , on DATE the applicant ’s case was disjoined from that against his accomplices .

On DATE ORG ordered the applicant ’s release on bail . On DATE ORG overruled this decision , making reference to the danger of the applicant ’s absconding , given the seriousness of the charges against him .

On DATE the investigation against the applicant was closed . The case - file , communicated to the applicant on DATE , consisted of CARDINAL pages .

From DATE , the pre - trial detention of the applicant , by then diagnosed with chronic paranoid schizophrenia , was effected in the ORG for the treatment of his condition . In response to complaints filed by the applicant ’s father , ORG of the Attorney ORG specified that the applicant had been committed to the ORG on medical grounds , since he had shown psychotic symptoms at ORG ; that , after examinations , the ORG were of the opinion that his further treatment was necessary ; and that forensic experts had repeatedly examined him . On DATE ORG confirmed the applicant ’s committal to the ORG .

On DATE and DATE , the applicant ’s detention was again prolonged by ORG on the ground of a risk of absconding , given the seriousness of the charges against him . These decisions were upheld on DATE and DATE by ORG .

On DATE a bill of indictment was preferred . The applicant was charged with complicity in kidnapping and severe bodily assault , offences punishable under sections CARDINAL and CARDINAL of LAW , as modified by Act no . DATE .

On DATE another expert psychiatrist was appointed . On DATE the expert informed ORG that the applicant ’s prolonged observation was warranted .

On DATE ORG dismissed the applicant ’s renewed request for release on bail . On DATE ORG dismissed his appeal .

On DATE the ORG presented its observations on the applicant ’s mental state . On DATE the forensic psychiatrist submitted his opinion .

NORP The applicant was eventually released from the ORG on DATE . His pre - trial detention having been lifted , the applicant was ordered not to leave town .

ORG ordered further psychiatric examinations of the applicant . Since he did not appear at an examination scheduled in DATE , it had to be rescheduled for DATE .

Relying on the findings of the forensic psychiatrists , on DATE ORG suspended the proceedings in view of the fact that the applicant was not mentally capable of standing trial .


Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Ján Šikuta;Lech Garlicki;Vincent A. De Gaetano

The applicant was born in DATE and lives in LOC .

On DATE the applicant was arrested on charges of arson and uttering threats . On an unknown later date he was indicted before ORG .

The applicant was detained on remand for a total period of DATE and DATE .

On DATE ORG acquitted the applicant of some of the charges and convicted him of uttering threats and attempted arson . and

On DATE the applicant appealed against his conviction .

On DATE ORG quashed the judgment and remitted the case .

DATE and DATE ORG held CARDINAL hearings . On several occasions the applicant who was duly summoned , refused to appear at hearings . However , the court proceeded with the trial in his absence .

On DATE the ORG convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment .

On DATE ORG again quashed the judgment and remitted the case .

On DATE the ORG acquitted the applicant of all arson charges and convicted him of uttering threats .

On DATE the applicant filed his appeal against this judgment . The proceedings were terminated by the judgment of ORG of DATE .

On DATE and CARDINAL DATE the applicant lodged complaints with ORG under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . The applicant sought a ruling that the length of the proceedings before ORG had been excessive and an award of just satisfaction .

On DATE ORG gave a decision and dismissed the applicant ’s complaint .

On DATE ORG dismissed yet another complaint under LAW lodged by the applicant . The court considered that there had been no significant delays in the proceedings .

The applicant was also involved in several other sets of criminal and civil proceedings in particular , proceedings concerning assault of a judge and contempt of court . The proceedings were terminated respectively on DATE and DATE by ORG .

NORP The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL


Violation of Art. 8 (refusal of custody);No violation of art. 8 (access visits);No separate issue under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE .

The applicant and his wife , PERSON , who was of NORP origin , had CARDINAL children , a boy T. born on DATE and a girl A. born on DATE . The family lived together in GPE until DATE when PERSON took the children to GPE where she took up residence with L. as her female partner .

On DATE , PERSON applied for divorce and for custody of the children .

On DATE the parents reached an interim agreement whereby the children would stay in GPE with their mother for the moment and the applicant have the right to CARDINAL supervised visits .

The applicant states that on DATE he became aware that the children ’s maternal grandmother had made a complaint to the social services against B. ’s female partner , PERSON , alleging that she had sexually abused A. There is some indication in the documents that the applicant may also have lodged a complaint on this ground . The criminal charges lodged against PERSON were later dismissed by the courts .

Meanwhile , it appears that the applicant took proceedings with a view to having the children returned to GPE under LAW . However , by decisions of ORG dated DATE and by ORG dated DATE , the applicant ’s application for return was refused , principally on the ground that he had voluntarily entered into an interim agreement that the children remain in GPE with their mother .

On DATE , ORG awarded sole custody of the children to the mother , finding that the children had lived with their mother in GPE since DATE and that it was in their best interests to remain with her . On DATE , ORG upheld this decision , as did ORG on DATE .

The applicant was however granted visiting rights . It appears that the children visited him in GPE during GPE and DATE and met with him in GPE in DATE ( twice ) and DATE ( CARDINAL times ) .

On DATE , B. , the mother , died . The children were then aged DATE respectively .

The applicant returned immediately to GPE . On DATE , he lodged a request that the children , still living with L. , be placed in a foster home and that he be accorded visiting rights .

Applications for custody of the children were lodged by both PERSON and by the applicant . During DATE , the children were interviewed twice by a team consisting of a child psychiatrist and CARDINAL psychologists . They expressed their wish to stay with L. because they felt safe and were used to living with her . A. was reported as stating that she would like to meet the applicant occasionally but only when she wished , while PERSON was reported as stating that the applicant was not part of his family and that he neither wanted to meet him or live in GPE .

The applicant saw the children CARDINAL times during DATE in supervised contact visits . There was another meeting outside the social workers’ LOC .

In a ORG report dated DATE , it was stated that , following the mother ’s death , PERSON ’s influence on the children had increased and the children turned to her for support . It was noted that the children were not able to act against ORG will , because they were dependent on her at that time . Consequently , the children were in a state of conflict , as they were not allowed to like the applicant . The report considered that the lack of contact with their close relatives endangered the development of their identity .

On DATE , after oral hearings at which the applicant , PERSON and another CARDINAL witnesses , including a number of social workers involved in the case , were heard , ORG awarded custody to the applicant . It observed inter alia , that according to the evidence , PERSON had been involved in bringing up the children since their return to GPE . According to a number of social workers involved in the case , the applicant was considered fit to be a custodial parent as , for example , in dealing with conflicts he had always put the children ’s best interests first . The meetings between the children had also gone well . It concluded that in fact both PERSON and the applicant were fit as custodians .

As regarded the views of the children , ORG recalled that according to a statement of DATE given by a social worker during previous proceedings , ORG ’s wishes were not entirely his own ; he had been influenced by PERSON , his mother . His wishes were in contradiction with what he had told the social worker about the meetings with the applicant which had taken place . The social worker had noted that the fact that PERSON did not want PERSON to travel to see the applicant was significant and pointed out that it would be very important for the children ’s psychological development that they develop a more constructive view of the applicant . It recalled the evidence of a friend of PERSON and PERSON , who had given evidence before the court , had stated that the children ’s attitude towards the applicant had begun to be more positive from DATE , but that no meetings had taken place as from DATE , apparently due to the fact that the children ’s activities were given priority and the meetings with the applicant tended to be proposed at short notice . T. had told her that it would be alright to meet with the applicant if he could decide when . A. had told her that she would like to meet with the applicant DATE , but not at that time . T. ’s attitude towards meeting the applicant was therefore fairly positive . Following B. ’s death , everything had changed when the applicant came to see his children . As he allegedly had said that the law would make the children move to live in GPE , they did not want to meet with him anymore . According to this witness , the children feared moving to GPE .

ORG considered that T. ’s attitude during the recent interviews was in contradiction with what had happened during the meetings with the applicant , which had all gone well . It found that none of the persons heard before the court had said that the children feared the applicant and concluded that , as the atmosphere in which the children had been living had obviously affected their wishes and hopes , it was not possible to analyse what their true views really were . Therefore , their expressed wishes could not be decisive when deciding the case . Noting that the case should be decided in accordance with the children ’s best interests , it decided that , given the strained relations between PERSON and the applicant , custody should be awarded to the latter . It was evident that PERSON would not be able to encourage the relationship between the children and the applicant enabling them to stay in contact . Therefore , ORG ordered that custody be awarded to the applicant .

Pending L. ’s appeal against the decision , the enforcement of the order was suspended by ORG on DATE . According to the evidence of various social workers , the children had reacted to his expressed intention of taking them to GPE by refusing to meet with him unless PERSON was present . The applicant allegedly refused to meet with the children under these terms . The applicant ’s attempts to enforce contact visits also apparently failed due to the children ’s refusal to see him .

On DATE , ORG overturned the decision concerning the suspension and requested ORG and its NORP counterpart to report on the case . During the period DATE , pursuant to the court ’s request , the children were interviewed CARDINAL times by social workers , CARDINAL times in the presence of ORG and twice alone . The social workers’ efforts to arrange a meeting between the children and the applicant were unsuccessful due to the children ’s opposition . It was reported by the social worker in later oral evidence that the children continued to express their wish to live with PERSON During the interviews , the children had turned to PERSON for support and been dependent on her . The children ’s memories of the applicant were , however , good . Nothing suggested that the children would have had any reason to feel unsafe in the applicant ’s company . According to CARDINAL of the social workers at the meetings , the wishes that the children expressed were more dependent on the wishes of PERSON than their own will . According to the evidence given by other witnesses in ORG , including other social workers , the children expressed their wish to be left alone and that they wanted to stay in GPE every time the applicant was brought up for discussion . They seemed to fear moving to GPE .

Meanwhile , it appears that the applicant applied to ORG for its original order to be enforced . This request was refused on DATE . His appeal to ORG was later rejected on DATE as meanwhile it had reached a fresh decision in the case . An application by the applicant to have the children placed in a foster home away from PERSON was also dismissed by ORG on DATE and his appeal rejected by ORG on DATE .

On DATE , after an oral hearing over DATE during DATE and at which the applicant and PERSON were heard as well as QUANTITY other witnesses from the ORG proceedings and CARDINAL new witnesses , ORG upheld ORG judgment . It ordered that the children move to live with the applicant on DATE , after a transitional period during which the children could meet with the applicant DATE and DATE during DATE .

In its judgment , ORG agreed that both PERSON and the applicant were fit to have custody : nothing suggested that they would not be fit . Given the ages of the children , it considered that their view had to be taken into account , but it was also evident that the strained relationship and litigation between the applicant and PERSON , and later on PERSON , had had influence on their view . It considered that the negative attitude towards meeting with the applicant was based on the fear of having to move to GPE . Nothing suggested that the children feared the applicant as such . Although the children were as mature as other children their age , they could not however be given the absolute right to decide on their future , particularly in light of their extremely difficult situation at that time . Notwithstanding the law on enforcement , the court did not consider that in deciding on custody it was bound to follow the opinion even of a child aged DATE or more . Concluding that the decision should be based on what was in their best interests , it found that the relationship between the children and the applicant was very important for a well - balanced development . It furthermore found that the fact that the applicant had said that he would allow the children to keep in touch with PERSON was in the best interests of the children . While it was true that the children appeared closer to PERSON and their environment ( including their home , school , hobbies and close personal relations ) would stay the same if custody was awarded to PERSON , ORG concluded , nonetheless , that the children ’s views did not correspond to their best interests . A situation which would lead the children and the applicant drift further apart was not in their best interests . Accordingly , it ordered that the applicant be awarded custody from DATE after a transitional period of increased contact with the children .

The applicant visited GPE in DATE , DATE and DATE , requesting visits with his children . On DATE , the applicant arrived in GPE and requested to see the children DATE . The social worker contacted PERSON to inform her of this and reported that the children refused . They allegedly wanted PERSON or another person to be present whereas the applicant refused any third party involvement . On CARDINAL occasion , in DATE , did a visit take place when it was agreed between the parties that the children see the applicant at their maternal grandmother ’s . However , only T. appeared , accompanied by a friend and CARDINAL of L. ’s lawyers . On this occasion , an incident occurred , the accounts of which vary but to which the police were called . T. subsequently informed his social worker that he was afraid of his father , who had tried , T. alleged , to keep him in the grandmother ’s apartment by force and stated that he did not wish to see him again . The children did not appear at the next meeting in DATE . They had already informed him that it would serve no purpose for him to come to GPE as they did not wish to see him . The social workers had several meetings with the children during this period and also made contact with their school seeking to persuade the children to attend therapy sessions . The children were recorded as stating that the applicant only made critical comments and demands and held strong views that they did not wish to live their friends and the environment they knew and that they did not trust their father . T. stated that he feared that his father would attempt to force them to leave GPE .

L. applied for leave to appeal . On DATE , ORG granted PERSON leave to appeal and suspended the enforcement of ORG order . PERSON applied for an oral hearing , requesting that the parties , and possibly also the children , be heard . In his submissions to ORG in reply , the applicant applied for interim visiting rights and for the current psychological state of the children to be examined . He also requested that if PERSON ’s request for an oral hearing was granted ORG should rehear the evidence presented before the lower courts .

On DATE , ORG gave judgment on the outstanding issues ( ORG Reports CARDINAL:CARDINAL ) . It re - iterated that it had rejected the request for an interim order as being purposeless and the request for a psychological examination as being unnecessary . It also rejected the request for an oral hearing as unnecessary in the circumstances and for the reasons set out in its judgment .

ORG recalled that , according to LAW , the issue of custody had to be decided with regard to the child ’s best interests and that if the custodial parent of the children died , custody could be given either to the other parent or to another person , depending on where the best interests of the child lay . It agreed with both the lower courts that the applicant and PERSON were both fit to act as custodians . Both children however had said that they wanted to stay in the environment which they knew and with L. Their views had been thoroughly examined before both ORG and ORG and although the conflict between the adults had apparently disturbed the relationship between the children and the applicant , there was nothing to suggest that their wish to remain with PERSON was not their own independent opinion , in particular given their age and maturity .

ORG referred to section CARDINAL of the Act on the Enforcement of Decisions concerning Custody and Access Rights and recalling that T. was DATE was DATE , found that a custody decision which required the children to move would not be possible to enforce . Having regard to the purpose of awarding custody , it would not be in the children ’s best interests to issue a custody order to a parent to whom they could not be transferred against their will . As the relations between the applicant and L. were bad , there was no reason to consider that it would be possible for the applicant to have custody while they continued to live with L. as that would render it impossible to take practical decisions concerning the children ’s lives . In the circumstances of this case , it was therefore not in the best interests of the children to transfer custody to the applicant against their will but custody should be awarded instead to the person with whom they were currently living .

ORG went on to remark that future contact visits could be carried out under agreement or court order but that given the age of the children it would be dependent on their willingness to see the applicant . It underlined that according to LAW , the custodian of children was under an obligation to co - operate in order to promote and maintain relationships between children and a parent . It did not make any order on the point . The applicant had not made any application in that regard .

ORG therefore overturned the decisions of the lower courts and awarded custody to L.

On DATE , ORG dismissed the applicant ’s renewed request for the children to be placed in a foster home .

Custody of children is governed by LAW and Right of Access with regard to Children ( laki CARDINAL lapsen huollosta ja tapaamisoikeudesta , lag CARDINAL/CARDINAL ang . vårdnad om barn och umgängesrätt – “ the DATE LAW ) . LAW provides that the aim of such custody is to ensure the child ’s balanced development and well - being , regard being had to the latter ’s special needs and wishes , as well as to encourage a close relationship between the child and the parents .

The court may order that custody of a child be entrusted to CARDINAL or more persons together with , or instead of , the parents ( section CARDINAL § CARDINAL ) . It may transfer custody from the parents to other persons only if , from the child ’s point of view , there are particularly strong reasons for doing so ( section QUANTITY ) . It is also empowered to decide on access ( section CARDINAL ) . The aim of access is to secure a child ’s right to maintain contacts with a parent with whom he or she is not living ( section CARDINAL ) .

NORP In deciding on matters of custody and access the competent court must take into account the wishes and interests of the child in accordance with the following considerations : primary emphasis must be placed on the interests of the child and particular regard should be had to the most effective means of implementing custody and access rights in the future ( section CARDINAL § DATE and section CARDINAL § CARDINAL ) ; the child ’s views and wishes must , if possible and depending on its age and maturity , be obtained if the parents are unable to agree on the matter or if the child is being cared for by a person other than its custodian or if it is deemed necessary in the latter ’s interests ; the consultation must be carried out in a tactful manner , taking into account the child ’s maturity and without causing harm to its relations with the parents ( section CARDINAL ) .

Section CARDINAL of the Act on the Enforcement of Decisions concerning Custody and Access Rights ( laki CARDINAL lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta , lag CARDINAL om verkställighet av beslut beträffande vårdnad om barn och umgängesrätt ) , which entered into force on DATE , provides that if a child has reached DATE , enforcement must not take place against the child ’s will . Enforcement must not take place against the will of a younger child , if the child is sufficiently mature for its wish to be taken into account .


Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mrs F. Karakaş Doğan , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .

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

On DATE the applicant was arrested , together with CARDINAL other persons , by police officers from ORG of ORG on suspicion of membership of the ORG ( ORG , an illegal organisation , and was taken into custody .

On DATE , the applicant underwent medical examination at ORG . He told the doctor that he had not been subjected to any form of ill - treatment . Having examined the applicant , the doctor stated the following :

“ On the bottom external part of the right gluteus ( buttock ) there is an ecchymosis of QUANTITY . The person stated that this ecchymosis had occurred when he had fallen down DATE .

There is also an old incision scar on the right inguinal area . The person stated that he had undergone an appendix operation DATE . There is hernia in the operated area . ”

On DATE , upon the request of the anti - terrorist police , ORG at ORG extended the custody period for DATE .

The applicant was allegedly beaten and kicked by police officers during that custody . LOC and dirty water was poured on him several times . He was insulted and sworn at and made to stand up for DATE without sleep . The officers allegedly stamped on his scar from a previous operation which left him in great pain . They also allegedly gave the applicant a medication which made him more exhausted .

On DATE the applicant was taken to ORG , where he was examined by a doctor . The applicant told the doctor that he had been beaten by the police . However , the medical report drafted on that occasion indicated that there were no signs of physical violence on the applicant ’s body .

DATE , the applicant was brought before the public prosecutor and then the investigating judge at ORG . Before both he denied the statement he had made to the police . He further alleged that he had been ill - treated and had signed the statement under pressure without reading it . The investigating judge remanded him in custody DATE . He was put in FAC .

On CARDINAL DATE , he was examined by a doctor at FAC . The applicant ’s medical report of DATE noted a bruise of QUANTITY on his right buttock and an old scar from an appendix operation .

On an unspecified date , the PERSON public prosecutor launched an investigation into the applicant ’s allegation of ill - treatment . In due course , on DATE he took a statement from the applicant , in which the latter repeated the above - mentioned account of the facts with regard to the alleged illtreatment .

On various dates DATE , the prosecutor took statements from the police officers who had allegedly participated in the questioning of the applicant . CARDINAL police officers stated that they had been present when a statement was taken from the applicant . However , they claimed that they had not treated him badly . They also submitted that the applicant had been medically examined upon arrest and before being taken into their custody . They maintained that the medical report prepared on DATE showed that the injuries found on his body were DATE and had occurred because of a fall . They further stated that the report of DATE given by ORG after the end of the police custody noted no signs of ill - treatment .

On DATE the ORG decided not to prosecute the police officers in question , for a lack of sufficient evidence . In his decision , the public prosecutor relied on the accused police ORG statements and the medical report dated DATE indicating the absence of any sign of ill - treatment on the applicant ’s body .

On DATE the applicant ’s lawyer challenged this decision before ORG . Referring to the applicant ’s medical report dated DATE , she maintained that there was sufficient evidence for prosecution of the police officers .

On DATE , having regard to reasons given by ORG office and the content of the investigation file , ORG dismissed the applicant ’s objection and upheld the decision .

A full description of the domestic law and practice at the relevant time may be found in GPE and Others v. GPE ( nos . PERSON and CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINAL-IV ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and is serving a prison sentence in LOC .

On an unspecified date the prosecution authorities opened an investigation into the activities of an organised criminal gang that had committed a series of murders and other crimes . The applicant was CARDINAL of the suspects .

On DATE ORG , authorised a search of the applicant ’s flat . According to the applicant , he unsuccessfully complained about the court ’s search order to the town prosecutor on DATE .

On DATE the applicant was arrested and informed of the court order of DATE . His flat was searched on DATE .

On DATE the prosecutor ’s office appointed counsel PERSON to represent the applicant . On DATE ORG authorised the applicant ’s detention pending investigation . In particular , the court noted as follows :

“ [ The applicant ] is suspected of involvement in serious crimes which present a heightened danger to public order and entail a custodial sentence exceeding DATE ...

The court considers that , if released , [ the applicant ] , who does not have a permanent place of residence in ORG and who knows where the witnesses reside , might abscond or otherwise interfere with the establishment of the truth . ”

On DATE ORG extended the applicant ’s detention until DATE . The court refused to release the applicant pending investigation , noting as follows :

“ The investigator requests that the [ applicant ’s ] detention be extended . ... If released , [ the applicant ] might abscond , continue criminal activities , put pressure on witnesses or otherwise interfere with the administration of justice .

Having heard the defendant and his lawyer , who asked the court to dismiss the request , and the prosecutor who considered that it should be granted , and having studied the materials of the case , the court finds that the investigator ’s request is substantiated and should be granted . ”

On DATE counsel PERSON replaced counsel PERSON , who had asked to be withdrawn .

On DATE ORG extended the applicant ’s detention until DATE . The court held as follows :

“ ... [ the applicant ] is charged with very serious offences which present a heightened danger to public order and entail a custodial sentence exceeding DATE . This criminal case is of extreme complexity . The reasons justifying the [ applicant ’s ] remand in custody have not ceased to exist . The time - limit for the preliminary investigation has been extended until DATE . A number of investigative activities involving [ the applicant ] are pending . [ The applicant ] might abscond or commit new crimes [ if released ] . ”

On DATE ORG upheld the court order of CARDINAL DATE on appeal .

On DATE ORG further extended the applicant ’s detention until DATE . The court reiterated verbatim the reasoning of CARDINAL DATE .

On DATE ORG extended the applicant ’s detention until DATE , noting as follows :

“ [ The applicant ] is charged with a number of serious offences . His involvement in the crimes he has been charged with is supported by the materials submitted . The circumstances underlying the [ applicant ’s ] remand in custody have not ceased to exist . ”

On DATE ORG extended the applicant ’s detention until DATE , referring to the gravity of the charges against the applicant and the risk that he might abscond or re - offend . On DATE ORG upheld the decision of CARDINAL DATE on appeal .

On DATE the applicant started reading the case file , which comprised CARDINAL volumes and concerned CARDINAL defendants . On DATE ORG held that the applicant could not be released pending study of the case file , noting that he might abscond , put pressure on the parties to the criminal proceedings against him or re - offend , and extended the applicant ’s detention until DATE . On DATE ORG upheld the decision of DATE on appeal .

The applicant ’s detention pending study of the case file was further extended on DATE until DATE . Referring to the reasons indicated earlier to justify the applicant ’s detention , the court held that he could not be released . It appears that on an unspecified date the decision of DATE was quashed by ORG of GPE on appeal . The matter was remitted for fresh consideration and on DATE ORG extended the applicant ’s detention pending study of the case file until DATE . The applicant communicated with the court via video link .

On DATE the applicant started studying CARDINAL additional volumes of the case . He was provided with a photocopying machine and a digital camera . On DATE the prosecutor ’s office asked ORG to set a time - limit for the applicant to study the case file . The applicant asserted that he would need DATE to complete the study . The court granted him DATE .

On DATE ORG of GPE quashed the decision of DATE on appeal . The court noted that the applicant should have been granted time to study the request lodged by the investigator asking for an extension of the applicant ’s detention . The court further indicated that the applicant should remain in custody pending consideration of the matter by the lower court . It appears that on CARDINAL DATE ORG authorised the applicant ’s detention pending study of the case file until DATE . On DATE ORG upheld the decision of CARDINAL DATE on appeal .

On an unspecified date the prosecutor ’s office completed the investigation and forwarded the case file to ORG . Counsel PERSON was appointed to represent the applicant . On DATE ORG fixed the preliminary hearing of the matter and ordered that the applicant remain in custody pending trial . On DATE ORG upheld the decision of DATE on appeal , after having heard the applicant , his counsel and the judge rapporteur .

On DATE ORG opened a jury trial against the applicant and CARDINAL other defendants .

On DATE the jury delivered a guilty verdict in respect of the applicant on charges of membership of a criminal gang , illegal possessions of firearms , infliction of bodily injuries , kidnapping and murder .

On DATE ORG authorised an extension of the applicant ’s detention until DATE pending sentencing . On DATE ORG upheld the decision of DATE on appeal .

On DATE ORG sentenced the applicant to sixteen years’ imprisonment .

On DATE ORG upheld the applicant ’s conviction on appeal .

On DATE the Presidium of ORG of GPE quashed the appeal judgment of DATE by way of a supervisory review for the appeal court ’s failure to ensure the presence of the applicant ’s lawyer at the appeal hearing and remitted the matter for a new appeal hearing . The parties did not inform the Court of the outcome of the proceedings .

Following his arrest on DATE , the applicant was placed in detention in a remand prison . On numerous occasions DATE the applicant was transferred to and detained in the ORG temporary detention unit in connection with the investigation and trial .

According to the ORG , the applicant was detained at the temporary detention centre during the following periods :

- from DATE ;

- from CARDINAL and from DATE ;

- from DATE ;

- from DATE ;

- from CARDINAL to DATE ;

- from DATE to CARDINAL DATE ;

- from DATE ;

- from CARDINAL to CARDINAL and from DATE ;

- from DATE ;

- from DATE to DATE ;

- from DATE to DATE ;

- from CARDINAL and from DATE ;

- from DATE ;

- from DATE to DATE ;

- from DATE ;

- from CARDINAL and from CARDINAL to CARDINAL DATE ;

- from DATE to DATE ;

- from DATE ;

- from DATE to DATE ;

- from DATE ;

- from DATE ;

- from DATE ;

- from DATE .

The Government were unable to indicate the exact numbers of the cells in which the applicant had been detained . Nor could they submit information on the population of the temporary detention centre at the time of the applicant ’s detention . They provided the following overview of all the cells in the temporary detention centre :

There were no individual beds in the cells . The inmates had to share sleeping platforms . All the cells were equipped with a functioning ventilation system . All the cells had CARDINAL windows , except for cells CARDINAL . CARDINAL and DATE , which had CARDINAL window . Each window was covered with CARDINAL metal grilles which did not prevent access to daylight . The cells were lit with CARDINAL electric bulbs . The toilet in each cell was located QUANTITY away from the dining table and the nearest sleeping place . It was separated from the living area of the cell by a CARDINAL.CARDINAL-metre high brick wall .

The cells were disinfected once DATE . Inmates received CARDINAL meals a day . The applicant did not have the opportunity to take DATE outdoor exercise . He spent a certain amount of time outside the cell participating in investigative activities , taking showers , visiting doctors and meeting with his lawyer . He consulted a medical practitioner CARDINAL times .

In DATE the temporary detention centre was completely refurbished . The electrical wiring and other equipment , toilets , water supply , ventilation and sewerage systems were replaced . The sleeping platforms were replaced with individual beds . The brick walls separating the toilets from the living areas of the cells were removed and new metal cabins were installed . New window frames were also installed .

According to the applicant , he was always detained in overcrowded cells . In particular , CARDINAL inmates were detained in cells CARDINAL . CARDINAL , CARDINAL , DATE and DATE , and CARDINAL were detained in cells CARDINAL . CARDINAL , DATE and CARDINAL .

There was no ventilation or access to daylight . The electric lighting was constantly on . Each cell was lit with a CARDINAL-watt electric bulb .

The distance between the toilet and the nearest sleeping places was CARDINAL . The wall separating the toilet from the living area of the cell was PERSON high and offered no privacy to the person using the toilet .

The applicant was never taken out of the cell to participate in investigative activities . Meals were provided once DATE . The food rations were insufficient ; no meat , fish , fruit or vegetables were served . The applicant was not given bed sheets .

On DATE the deputy town prosecutor dismissed the applicant ’s complaint about the conditions of his detention in the temporary detention centre , noting as follows :

“ In the course of the inquiry [ the head of the temporary detention centre ] submitted that , in order to bring the premises of the temporary detention centre into compliance with the federal legislation , it should be subjected to reconstruction and refurbishment . The maximum capacity is QUANTITY persons . However , following the amendments to LAW requiring that suspects and defendants be present at court hearings , the average DATE population has drastically increased to CARDINAL persons . ... Every day the police book in CARDINAL new inmates . Accordingly it is impossible to provide every detainee with an individual sleeping place . Furthermore , on CARDINAL DATE ... DATE newly arrived inmates were booked in . As a result , the population of the temporary detention centre rose to CARDINAL persons . There were CARDINAL inmates detained in cell no . CARDINAL ... . This number does not exceed the capacity of the cell . ”

On DATE ORG replied to a complaint lodged by the applicant about the conditions of his detention in the temporary detention centre . In particular , the letter read as follows :

“ ... the complaints about the conditions of detention communicated by [ the applicant ] at the hearing of the [ ORG ] on DATE should be considered substantiated in part . However , the allegation that there was an intent on the part of [ the head of the temporary detention centre ] to deliberately create such conditions of detention has not been substantiated .

I would also inform you that in DATE it is planned to allocate monetary funds for capital refurbishment and reconstruction of the temporary detention centre that would bring the conditions of detention in the temporary detention centre into compliance with the applicable legislation of GPE . ”

On DATE the applicant and CARDINAL other inmates detained in cell no . CARDINAL of the temporary detention centre complained to the town prosecutor about overcrowding in the cell where they were detained . The applicant did not inform ORG prosecutor ’s response to the complaint , if any .

The Federal Law on Detention of Suspects and Defendants charged with Criminal Offences ( “ ORG ” ) ( as amended ) , in force since DATE , provides that suspects and defendants detained pending investigation and trial are held in remand prisons ( section CARDINAL) . They may be transferred to temporary detention facilities if so required for the purposes of investigation or trial and if transportation between a remand prison and a police station or court - house is not feasible because of the distance between them . Such detention in a temporary detention facility may not exceed DATE a month ( section CARDINAL ) . Temporary detention facilities in police stations are designated for the detention of persons arrested on suspicion of a criminal offence ( section CARDINAL ) .

Under paragraph CARDINAL of LAW , approved by LAW . CARDINAL of ORG of GPE on DATE , as amended ( in force at the time of the applicant ’s detention ) , the living space per detainee should be QUANTITY . Paragraph CARDINAL.CARDINAL made provision for cells in temporary detention facilities to be equipped with a table , a toilet , running water , a shelf for toiletries , a drinking water tank , a radio and a rubbish bin . Furthermore , paragraphs CARDINAL , CARDINAL , and CARDINAL of the regulations made provision for detainees to have outdoor exercise for TIME a day in a designated exercise area .

The relevant extract from the CARDINALnd ORG of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) ( ORG ( CARDINAL ) CARDINAL ) reads as follows :

“ DATE . Custody by the police is in principle of relatively short duration ... However , certain elementary material requirements should be met .

All police cells should be of a reasonable size for the number of persons they are used to accommodate , and have adequate lighting ( i.e. sufficient to read by , sleeping periods excluded ) and ventilation ; preferably , cells should enjoy natural light . Further , cells should be equipped with a means of rest ( e.g. a fixed chair or bench ) , and persons obliged to stay TIME in custody should be provided with a clean mattress and blankets .

Persons in custody should be allowed to comply with the needs of nature when necessary , in clean and decent conditions , and be offered adequate washing facilities . They should be given food at appropriate times , including CARDINAL full meal ( i.e. something more substantial than a sandwich ) DATE .

The issue of what is a reasonable size for a police cell ( or any other type of detainee / prisoner accommodation ) is a difficult question . Many factors have to be taken into account when making such an assessment . However , ORG delegations felt the need for a rough guideline in this area . The following criterion ( seen as a desirable level rather than a minimum standard ) is currently being used when assessing police cells intended for single occupancy for stays in excess of TIME : in the order of QUANTITY , QUANTITY or more between walls , QUANTITY between floor and ceiling . ”

The ORG reiterated the above conclusions in DATE ORG ( ORG ( DATE ) CARDINAL , § MONEY ) .