Violation of Art. 6-1;Inadmissible under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

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

On CARDINAL DATE the applicant lodged a claim for division of her matrimonial property with ORG ( Sąd Rejonowy ) .

The court held the first hearing on DATE .

DATE the court held CARDINAL hearings ( DATE , CARDINAL in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE ) .

On DATE and DATE the court held hearings .

On DATE the court ordered that expert evidence be obtained . The expert opinion was delivered to the court on DATE .

On DATE , DATE , DATE and DATE the court held hearings .

On an unspecified date in DATE the court decided to obtain fresh expert evidence . The expert submitted his report to the court on DATE .

NORP On DATE the court held a hearing .

On DATE the court gave judgment .

During the proceedings the composition of the court changed CARDINAL times .

The applicant several times complained to the President of ORG about the slow conduct of the proceedings . In reply , the President admitted that the proceedings were indeed too long and informed the applicant that he would supervise their further conduct .

On an unspecified date in DATE the applicant ’s husband lodged an appeal against the first - instance judgment with ORG ( PERSON ) .

On DATE the court dismissed the appeal .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5;Violation of Art. 8;Violation of Art. 13+5;Violation of Art. 13+8

Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

The applicant , her husband and their son reside in an apartment , which they share with CARDINAL other families . She suffers from a number of diseases , affecting her skin , kidneys and thyroid gland . The applicant is classed as Category CARDINAL disabled under NORP law .

NORP In DATE the applicant ’s son allegedly beat up Bo . , who was a member of CARDINAL of the families residing in the same apartment . Bo . complained to the police of having been beaten . On DATE the applicant ’s son was convicted of affray in this connection and given a DATE conditional sentence .

At TIME on DATE PERSON , a neighbourhood police inspector , and police officer PERSON , the Deputy Head of the CARDINALth Section of the St Petersburg Central District Department of the Interior ( “ ORG of the Interior ” ) arrived at the applicant ’s apartment to invite the applicant ’s son to attend an interview . At the time , he had not been either classed as a suspect or formally charged . Bo . let the officers into the apartment and they saw the applicant ’s son entering his room and locking the door behind him .

The applicant blocked the way to her son ’s door . PERSON explained the reasons for their visit to the applicant , but the applicant asked them to leave . According to S. , the applicant verbally insulted him and punched him several times in the chest . The applicant disagreed and submitted that she had simply blocked access to the door , but did not insult or punch anyone .

The applicant ’s neighbours , who were present during the incident , later confirmed that the applicant had used abusive language and had tried to hit S.

PERSON then left the building in order to prevent the applicant ’s son from escaping through a window and PERSON stayed in the apartment and called the police , asking them to send reinforcements . Some time later , officers PERSON . , PERSON and PERSON arrived at the applicant ’s apartment . PERSON told them to take the applicant to the police station for having insulted the policemen on duty .

According to the applicant , and as also noted in the statement of her neighbours given during the subsequent investigation , thereafter the policemen forced the door to the room of the applicant ’s son open , entered the room and some time later led him outside of the apartment and put him in a car .

According to PERSON , he offered to let the applicant put her DATE clothes on , but the applicant refused . PERSON . and PERSON then took the applicant by the hands , led her out of the apartment and put her in the car . The applicant resisted their efforts .

The applicant submitted that while she had been in the apartment , CARDINAL of the policemen had knocked her to the floor , had grabbed her by the wrists and had dragged her out of the apartment . He had dragged her down CARDINAL staircases of the building and out to the car . She denied having been given the chance to put her DATE clothes on .

According to the applicant , it had been minus CARDINALo C outside . The applicant ’s son had been put in the same car . The police brought them to ORG of the ORG ’s premises and locked them in cells for administrative detainees .

NORP Some time later the applicant ’s husband brought her warm clothes . A record made after the incident concerning the administrative offence of minor affray under LAW states that the applicant “ used abusive language in public ” . The record describes the applicant ’s identity and time of the incident , but does not mention whether any decision was taken in connection with her alleged misconduct , whether the applicant was taken into custody and whether or when she was released . The applicant confirmed having seen a copy of the record in the police station .

The Government were unable to provide the ORG with the materials pertaining to the applicant ’s administrative case , explaining that they were destroyed following the expiry of the time - limit for storage of such documents in DATE , DATE and DATE . They did not submit any specific information as to the existence of a record of the applicant ’s detention .

According to the applicant , she had spent TIME in a cell for administrative detainees in ORG of the ORG ’s premises . She was not given any food , was not provided with medical assistance and did not have the opportunity to sleep , as there was neither a bed nor bedding . Given that she had suffered an injury to her tail bone , the only position that she had been able to cope with was staying upright all the time . It is not clear whether any records of the applicant ’s detention were made .

The Government submitted that there had been no standard rules concerning the conditions for such detention , that the applicant ’s cell had been equipped with a wooden bench , that the applicant had not complained about the state of her health and that the authorities had not impeded third parties , such as a relative , from bringing their own food to feed the applicant .

The applicant was released on DATE at TIME , without having been brought before a judge or otherwise interrogated . On DATE , the applicant was examined by a doctor who recorded a bruise on the applicant ’s tail bone . The doctor stated specifically that the bruise had been formed as a result of an impact occurring no less than once by a blunt object in a mechanical way , similar to a blow , and that it “ could have been inflicted during a fall onto a flat surface or [ by ] continuous dragging along the floor or down a staircase ” .

NORP The administrative proceedings against the applicant and her son concerning the charge of minor affray were later discontinued or abandoned .

The Government did not dispute the timing of the applicant ’s detention and release .

On DATE the applicant asked a prosecutor to initiate criminal proceedings against police officers PERSON , PERSON and the policeman who had dragged her from the apartment to the car . In her application , she referred specifically to the policemen ’s unlawful entry to the apartment and the applicant ’s family ’s accommodation , to being beaten and to her subsequent unlawful arrest and detention . The letter described in detail the conditions of her detention . On DATE Ts . , an assistant prosecutor at GPE Central District Prosecutor ’s Office , refused to institute criminal proceedings . The applicant did not provide the ORG with a copy of the decision .

On DATE , a supervising prosecutor at ORG , instituted criminal proceedings against PERSON on the basis of the applicant ’s complaint of PERSON ’s unlawful actions . She argued that :

“ ... [ the decision of DATE ] had been unlawful and had to be quashed insofar as it had concerned the actions of the police officers .

Thus , [ the relevant legislation ] indeed empowers the policemen to enter without hindrance the residential premises of private citizens . However , this power is provided only in case the [ policemen are pursuing ] the persons suspected of criminal activity . In the case at hand , [ the applicant ’s son ] was not a suspect within the meaning of [ the domestic law on criminal procedure ] , the criminal case against him was instituted DATE , which policemen PERSON and PERSON certainly knew . In addition , in breach of the mentioned legal norm obliging the police to inform about all such cases the relevant prosecutor within TIME , this has not been done .

The unlawful actions of the policemen [ in question ] mostly provoked the subsequent actions of [ the applicant ] , which was unjustifiably viewed by the policemen as a minor affray . [ The applicant ’s ] intent in the present situation was directed at the protection of her son , and not the breach of public order . As was earlier noted in [ previous decision of the prosecutor ’s office ] , the [ applicant ’s ] actions did not qualify as [ an offence of insulting a public officer ] ... because the relevant actions did not have a lawful character ... ”

The prosecutor considered that the applicant had been taken to the police station and had been detained there unlawfully . The prosecutor decided to institute criminal proceedings but for some reason failed explicitly to quash the decision of DATE .

On DATE an expert examination of the applicant ’s medical condition was conducted . The expert noted that the applicant had a bruise on her tail bone which could have occurred , among other reasons , as a result of her being dragged down the staircase on DATE .

Investigator PERSON . of GPE Central District Prosecutor ’s Office , in charge of the criminal case against PERSON , collected the following evidence . He questioned PERSON , who stated that during the incident in the applicant ’s apartment she had verbally insulted and pushed him several times and that he had had to call for reinforcements and take the applicant to the police station . S. had not known about the applicant ’s disability at the time of the incident .

The investigator also questioned PERSON , who stated that he had been in charge of investigating PERSON . having been beaten up by the applicant ’s son . On DATE , having learned that the applicant ’s son was at home , he had gone with officer PERSON to invite him to attend a police interview . They had met the applicant in the apartment and she had started to verbally insult them and push PERSON out of the apartment . The applicant ’s neighbours had witnessed the incident . Then PERSON had left the building and had seen the reinforcing officers arriving . PERSON . and PERSON had gone upstairs and had soon come back , leading the applicant by the hands to the car .

Sh . told the investigator that on DATE he had arrived at the applicant ’s apartment . He had seen the applicant swearing and pushing PERSON had given the order to take the applicant to the station . He and another policeman had taken her by the hands and had led her out of the apartment to the car . The applicant had resisted .

NORP The investigator questioned the applicant ’s neighbours Bo . and PERSON , who stated that they had seen her insulting and trying to hit officer PERSON They stated that the CARDINAL policemen had then taken the applicant to the car , despite her resistance . The neighbours also gave evidence to the effect that the police officers had forced open the door to the applicant ’s son ’s room and had entered it despite the applicant ’s objections .

L. , a passer - by , stated to the investigator that she had seen CARDINAL policemen leading a woman from an apartment block to a car . The woman had been resisting and screaming . She had then been “ carefully put into the car ” .

The applicant told the investigator that in the apartment a police officer had hit her so hard that she had fallen to the floor . He had then taken her by the wrist and had dragged her along the floor out of the apartment . She had walked by herself from the entrance of the apartment block to the car .

In the light of the above evidence , the investigator concluded that PERSON , by ordering the applicant ’s transfer to the police station , had acted lawfully . Accordingly , on DATE he took a decision to discontinue the criminal proceedings against S.

On DATE deputy prosecutor PERSON of GPE Central District Prosecutor ’s Office quashed the decision of DATE and ordered additional investigation of the applicant ’s complaint concerning alleged unlawful actions by S.

On DATE an investigator at GPE Central District Prosecutor ’s Office discontinued the criminal proceedings against PERSON He argued that PERSON had acted lawfully and had not abused his authority . The investigator also found that the applicant had insulted PERSON and had punched him several times in the chest , and therefore that she was liable to prosecution for having committed violent actions towards an officer on duty . He separated the case relating to the applicant ’s actions in respect of the officer into a different set of criminal proceedings . On DATE the criminal proceedings against the applicant in this respect were discontinued for the lack of evidence of a crime .

On DATE deputy prosecutor GPE of ORG quashed the decision of DATE and ordered additional investigation into the applicant ’s complaints .

On DATE investigator PERSON . of GPE Central District Prosecutor ’s Office discontinued the criminal proceedings . The investigator stated that the applicant ’s bruise had occurred as a result of her active resistance to the lawful actions of policemen . On the way to the car , the applicant had tried to hold on to a door frame , the rails of the staircase and a metal fence on the street , and had bent her feet so that the policemen had had to carry her . The investigator argued that taking the applicant to the police station had been justified by the need to hold her responsible for her breach of public order . The investigator concluded that there was no evidence that PERSON had abused his powers . The investigator also stated that the police had made a record of the applicant ’s administrative offence and that they had arrested the applicant in order to bring her before a judge who was competent to decide on her guilt as regards the administrative offence in accordance with applicable law .

On DATE deputy prosecutor Zh . of ORG quashed the decision of DATE and ordered additional investigation by another prosecutor ’s office . The prosecutor noted that it had not been possible to establish with certainty the circumstances of the incident between the applicant and the police officers due to inconsistencies in the ORG statements . In the decision , the prosecutor referred to the record of the applicant ’s administrative and police detention but noted discrepancies as regards the beginning of the applicant ’s detention and also stated that the time of the applicant ’s release was not recorded at all . He considered that it was necessary to carry out a comprehensive medical expert examination of the applicant and noted the inadequacy of the investigation conducted so far .

On DATE an investigator from GPE Prosecutor ’s Office discontinued the criminal proceedings against S. He noted that the decision of DATE had not quashed the decision of CARDINAL DATE and that the original decision was still in force . Thus , the institution of criminal proceedings at a time when there was a valid decision to discontinue them was unlawful . The investigator noted in his decision that , in entering the apartment against the will of its owner and ordering the policemen to take the applicant to the police station , S. had acted unlawfully . He also noted that officer PERSON . had led the applicant out of the apartment . According to the investigator , the applicant had been detained at the police station on the basis of reports by a number of policemen , namely PERSON , PERSON . and PERSON

On DATE deputy prosecutor PERSON . of ORG quashed the decision of DATE due to the inadequacy of the investigation and ordered additional investigation .

NORP On DATE investigator Zh . of GPE discontinued the criminal proceedings against PERSON The investigator stated that it had not been possible to establish with certainty the circumstances of the incident between the applicant and police officers due to inconsistencies in the ORG statements . He argued that PERSON had unlawfully entered the apartment against the applicant ’s will and had given an illegal order to take her to the police station . The investigator also added that PERSON had violated the applicant ’s rights , as he had not checked whether her detention at the police station for TIME was lawful . The investigator further argued that the institution of criminal proceedings at a time when the decision of CARDINAL DATE to discontinue them was still in force was unlawful and all evidence collected in the course of the newly opened investigation was inadmissible . The applicant ’s son challenged the decision in court on the applicant ’s behalf .

On DATE ORG in GPE examined the applicant ’s complaint against the investigator ’s decision of CARDINAL DATE and rejected it . The court upheld the investigator ’s conclusion that the institution of criminal proceedings at a time when the decision of DATE to discontinue them was still in force was unlawful and all evidence gathered in the course of the newly opened proceedings was inadmissible . The applicant appealed . On DATE GPE rejected the applicant ’s appeal .

On DATE deputy prosecutor PERSON . of ORG quashed the decision of DATE to institute criminal proceedings . On DATE the deputy prosecutor quashed the decision of CARDINAL DATE to discontinue the criminal proceedings and ordered additional investigation .

On DATE deputy prosecutor PERSON of GPE Central District Prosecutor ’s Office discontinued the criminal proceedings against PERSON The deputy prosecutor noted that police officers PERSON . and PERSON had taken the applicant by the hands and had led her out of the apartment . He concluded that the police officers had acted lawfully during the incident , which had been provoked by the applicant and her son . The deputy prosecutor also mentioned the fact that no records of the time of the applicant ’s release had been made at the police station and added that the materials of inquiry concerning the administrative proceedings against the applicant and her son , namely the records of administrative offences , had been destroyed . In taking the decision , the prosecutor did not mention any specific piece of evidence , either new or old . The applicant ’s son challenged this decision in court on her behalf .

On DATE ORG in GPE rejected the complaint against the decision of DATE . The court noted that :

“ ... the statements of all persons questioned in connection with the case have been analysed , the events have been described in the decision [ of DATE ] in chronological order and do not contradict the evidence contained in the materials of inquiry ... submitted to the court . The statements of policemen Sh . , PERSON , PERSON and S. that they did not commit any illegal actions towards GPE and that the conflict was provoked by [ the applicant ] , who had refused to follow the lawful orders of the policemen , are also confirmed by the statements of witness L. ... ”

The applicant appealed against the judgment .

Section CARDINAL(CARDINAL ) of LAW DATE gives the police the right to enter LOC when pursuing a person suspected of having committed a crime or when the police have sufficient information to believe that a crime has been or is being committed on the LOC or that an accident has happened there and also for the purposes of ensuring the safety of citizens and of the public in cases of natural disasters , catastrophes , accidents , epidemics , epizootics and public disorders . The police have to notify a prosecutor of all cases of entry into the homes of persons against their will within TIME .

Article CARDINAL of ORG Code CARDINAL , as in force at the relevant time , punished minor affray , namely the use of abusive language in public places , harassment of citizens and other similar actions disturbing the public order and peace . LAW provided that an accused person could be brought to a police station for the purpose of making a record of an administrative offence if it had not been possible to make it on the spot . LAW required that administrative detention be recorded . According to LAW , a person who committed an administrative offence could be detained for TIME . However , individuals who committed minor affray could be detained until the examination of the case by a court or by the head of a law - enforcement body .

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 ) .

The part of the ORG to ORG on the visit to GPE carried out by the ORG from DATE ( ORG ( DATE ) CARDINAL ) reads , in so far as it concerns conditions of detention in administrative - detention cells located within police stations , as follows :

“ CARDINAL . Similar to the situation observed during previous visits , none of the district commands ( RUVD ) and local divisions of ORG visited were equipped with facilities suitable for TIME stays ; despite that , the delegation found evidence that persons were occasionally held TIME at such establishments ... The cells seen by the delegation were totally unacceptable for extended periods of custody : dark , poorly ventilated , dirty and usually devoid of any equipment except a bench . Persons held TIME were not provided with mattresses or blankets . Further , there was no provision for supplying detainees with food and drinking water , and access to a toilet was problematic .

The ORG reiterates the recommendation made in its report on the DATE visit ( cf . paragraph CARDINAL of document ORG ( DATE ) CARDINAL ) that material conditions in , and the use of , cells for administrative detention at district commands and local divisions of ORG be brought into conformity with ORG CARDINAL/CARDINAL on the general conditions and regulations of detention in administrative detention cells . Cells which do not correspond to the requirements of that Order should be withdrawn from service .

Further , the ORG reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for TIME . ”


The applicants , whose names appear in the appendix , are NORP nationals . They were living in GPE of ORG district of ORG at the time giving rise to the applications . They are represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

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

Until DATE the applicants lived in GPE of GPE , ORG . On DATE the applicants’ village was forcibly evacuated by the security forces on account of intense terrorist activities in the region . After the evacuation , the security forces burned down the houses in the village . Ever since the incident , the applicants have been living in ORG .

On DATE the village headman filed a petition with ORG in ORG on behalf of the villagers , requesting a damage assessment and compensation . On DATE the Governor transferred the letter to ORG ( PERSON ve PERSON ) . The experts from this office assessed the damage and drafted a report . The report was submitted to the Governor who , however , did not inform the applicants about it .

On DATE the applicants applied to ORG to obtain a response to their petition . On DATE the Governor informed the applicants that their petition and the relevant report had been sent to ORG .

On DATE the applicants filed a petition with ORG requesting compensation for their losses and permission to return to their village . ORG referred the applicants’ request to ORG .

On DATE the Governor sent a letter to the applicants informing them that ORG ( PERSON ve PERSON ) could not afford to pay the compensation requested by the applicants .

On DATE the applicants filed an action with ORG against ORG requesting compensation for their losses . They also applied for legal aid and submitted to the court documents obtained from certain state authorities indicating their poverty .

On DATE ORG rejected the ORG request . The court held that , since the applicants had sufficient means to be represented by a lawyer , they could not be considered to be in need of legal aid according to the case law of ORG and the rules of civil procedure .

On DATE the court decided to discontinue the proceedings on the ground that the required legal fees had not been paid . The decision was served on the applicants on DATE .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not destroyed the applicants’ village or forced them to leave their homes .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI )


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

On DATE a NORP ORG convicted the applicant of , inter alia , aggravated tax fraud and sentenced him to CARDINAL years’ imprisonment . In an administrative procedure he was ordered to pay outstanding taxes , which he failed to do . Therefore , the NORP authorities requested judicial assistance in the enforcement of those claims .

On DATE the applicant was apprehended for the purpose of an enforcement inquiry ( ulosottoselvitys , utsökningsutredning ) conducted within the framework of a debt recovery procedure in GPE .

The applicant was cautioned by the Bailiff ( ulosottomies , utmätningsmannen ) to the effect that he was under an obligation to give truthful information under penalty of a fine and that giving incorrect information or withholding information could constitute fraud . A policeman who had brought in the applicant was present during the inquiry .

The applicant stated that he owned a ORG watch and a Mercedes car . He also owned a ORG motorcycle , which was in GPE . He maintained that he had no other assets in GPE or elsewhere . The Bailiff seized the watch and the car .

On DATE the applicant was detained as a suspect in an aggravated debtor ’s fraud as it was alleged that he had concealed assets in the enforcement inquiry on DATE . He was also suspected of having made erroneous register entries concerning a number of vehicles other than those mentioned above .

A summary part of a pre - trial investigation report relating to the case indicated the following :

“ This investigation is based on an information notice made on DATE by ORG ( rahoitustarkastus , finansinspektionen ) to ORG ( keskusrikospoliisi , centralkriminalpolisen ) concerning suspected money laundering . According to the notice the [ bank O. ] had , on DATE , received from abroad a payment of MONEY ( ORG ) to be transferred to a person called [ M.M. ] . The sender of the money had been a person called [ the applicant ] , who resides in GPE .

During the examination into the matter it came to light that on DATE [ FAC ] appeared to have lent from his cash funds a sum of FIM CARDINAL,CARDINAL to [ company Ä ] for the purchase of real estate owned by [ company ORG ] . [ M.M. ] had concealed that claim in an enforcement inquiry conducted on DATE . A criminal report no . CARDINAL concerning that matter was registered by ORG on DATE in respect of [ FAC ] on suspicion of debtor ’s fraud and other offences . In the course of that investigation , it was discovered that the above payment of ORG had not been genuine and that , de facto , the receipt confirming that payment had been drawn up to conceal from [ the applicant ’s ] creditors the financial arrangements concerning and the true ownership of his possessions . On that account , [ investigator A. ] of the GPE unit of ORG decided to institute pre - trial investigations into , firstly , a suspected receiving offence , report no . CARDINAL/R/CARDINAL/CARDINAL ( CARDINAL ) , and later a suspected debtor ’s fraud , report no . CARDINAL . The basis for these suspicions has been [ the applicant ’s ] conviction in DATE of tax fraud in GPE and [ his ] concealing from the NORP State assets acquired through business activities for the purpose of avoiding tax and [ other ] payments . This had formed the basis of a claim for ORG DATE by ORG in respect of [ the applicant ] . The assets thus gained , and concealed , have subsequently been transferred to GPE by partly using moneys to purchase property , in appearance , for [ the applicant ’s ] immediate circle . The initial offence relating to the possible receiving offence [ in this connection ] was the aggravated tax fraud of which [ the applicant ] was convicted in DATE .

The NORP State ( Kronofogdemyndigheten ) has , as a creditor , requested the NORP authorities to undertake enforcement measures to recover its claim of ORG DATE . In the pre - trial investigation , conducted for the above reasons , it has emerged [ circumstances ] , to be specified hereafter , giving probable cause to suspect that , de facto , property acquired under the name of other persons is controlled by [ the applicant ] and purchased with his moneys and that , at the time of the enforcement measures conducted on DATE and CARDINAL DATE , he has had in his possession abroad moneys which have been concealed in the enforcement proceedings . ”

On DATE and DATE charges were brought against the applicant for aggravated debtor ’s fraud , CARDINAL registration offences and CARDINAL counts of instigation to commit registration offences . As to the fraud charge , the prosecutor alleged that the applicant had failed on DATE to account for moneys on CARDINAL foreign bank accounts , a property in GPE , shares in a NORP limited liability company , shares in CARDINAL NORP housing companies and CARDINAL cars . CARDINAL of those cars , an Opel , was also the object of CARDINAL of the alleged registration offences . According to the prosecutor the applicant had on DATE registered that car as belonging to another person X. although he had been its true owner .

The applicant denied having concealed any possessions in the enforcement inquiry held on DATE , arguing that he was not the owner of the property mentioned in the bills of indictment . The applicant submitted that the prosecutor was wrong in assuming that he was in the possession of proceeds of the tax fraud , for which he had been convicted in GPE . Even if that were the case , it would not constitute a separate offence . Nor could a person be punished for not giving information concerning such property in subsequent enforcement proceedings . As to the alleged registration offences and instigation thereto the applicant contended that all the information given to the registration authorities had been accurate .

Further , the applicant contended that in the enforcement inquiry of DATE he had been forced , under pain of a fine and in the presence of a police officer , to divulge self - incriminating information . As he , at the material time , had been suspected of at least money laundering , the procedure had been in breach of LAW .

On DATE ORG ( käräjäoikeus , tingsrätten ) convicted the applicant of aggravated debtor ’s fraud and sentenced him to DATE and CARDINAL months’ imprisonment having found that he had concealed in the enforcement inquiry the moneys in CARDINAL of the foreign bank accounts , the property in GPE , the shares in NORP companies and the Opel car . As to the moneys in the other foreign bank account and the other car , the court found that it had not been established that they had belonged to the applicant at the time of the enforcement inquiry . The court ordered the applicant to pay ORG some ORG CARDINAL,CARDINAL in damages . The charges concerning registration offences and instigation thereto were dismissed .

As to the applicant ’s argument concerning the alleged self - incrimination , ORG stated as follows :

“ [ The applicant ] is facing charges for concealing property in an enforcement inquiry carried out on DATE . [ He ] has on that occasion informed [ the Bailiff ] that he had no other property , either in GPE or abroad , than what transpired from the enforcement protocol .

[ The applicant ] has submitted that a policeman was present at the enforcement inquiry . [ The applicant ] was then required , under threat of a fine and in the presence of the policeman , to give information concerning an offence . In the light of the material submitted [ to the court ] it is possible that , in addition to the enforcement authorities , a policeman was present at the inquiry . However , [ the applicant ] had not at that time been suspected of any offence concerning which evidence could have been obtained through [ that ] inquiry . [ The Bailiff ] has submitted that he had been informed by the police that [ the applicant ] had been driving a [ ORG car ] . Relying on that information , he had decided to carry out an enforcement inquiry and seize the car . ...

No evidence has been presented [ to the court ] that obtaining information about an offence had been even the subsidiary goal of the enforcement inquiry . The only function of that inquiry had been to gain information about [ the applicant ’s ] property . By submitting information in the enforcement inquiry about his property abroad [ the applicant ] would not have incriminated himself on account of any offence . [ He ] would not have been obliged to provide information concerning the origin of the assets . As a matter of fact , he had already been sentenced to a punishment regarding those assets in [ the NORP court ] . Concealing these assets in the enforcement proceedings was not a part of the offence of which [ the applicant ] had already been convicted in GPE . Nor did the matter concern moneys illegally in the possession of [ the applicant ] or [ a co - defendant ] . A policeman had been present at the enforcement inquiry because he had escorted the applicant thereto . [ The applicant ’s ] rights under LAW had thus not been breached in that occasion . ”

On DATE ORG ( hovioikeus , hovrätten ) upheld the applicant ’s conviction , endorsing the lower court ’s reasoning in the main part . In addition , it convicted the applicant of CARDINAL registration offences and CARDINAL counts of instigation to registration offences . CARDINAL of the erroneous register entries on the basis of which the applicant was convicted concerned the Opel , the same car which the applicant , according to the courts , ought to have accounted for in the enforcement inquiry . The court increased the applicant ’s sentence to DATE and CARDINAL months’ imprisonment . His liability in damages was also increased to some ORG CARDINAL . The court accepted ORG view regarding the applicant ’s allegation concerning the alleged self - incrimination .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal .

An enforcement inquiry is resorted to if it has not been possible to establish otherwise the debtor ’s financial situation in a reliable manner . A more detailed description of the domestic law regarding such an inquiry may be found in the ORG ’s judgment of GPE v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL , CARDINAL - CARDINAL , DATE DATE ) .

Concealment of property and provision of incorrect information in an enforcement inquiry are punishable as a debtor ’s fraud under LAW ( rikoslaki , strafflagen ; Acts no . DATE and CARDINAL/CARDINAL ) .

At the material time ( that is , at the time of the enforcement inquiry ) , money laundering was punishable as a receiving offence . The relevant provisions of LAW of LAW were the following :

Article CARDINAL - Receiving offence

( CARDINAL ) A person who hides , procures , takes into his or her possession or conveys property obtained from another person through theft , embezzlement , robbery , fraud , extortion , means of payment fraud or through fraud by a debtor , aggravated fraud by a debtor or intentional deceitfulness by a debtor , or who otherwise engages him or herself with such property , knowing that the property has been obtained in this way , shall be convicted of a receiving offence and sentenced to a fine or an imprisonment for a maximum period of DATE and DATE ( Act no . CARDINAL/CARDINAL ) .

( CARDINAL ) A person shall be convicted of a receiving offence also if he or she

CARDINAL ) receives , transforms , conveys or transfers assets or other property which he or she knows to have been acquired through an offence or which has come to replace it , in order to conceal or obliterate its illicit origin or to assist the offender in avoiding the lawful sanctions provided for the offence ; or

CARDINAL ) covers up or obliterates the true nature , origin or location of the property referred to in point CARDINAL , or disposition thereof or rights thereto , or conceals information concerning those circumstances if he or she is obliged to report it by law ( Act no . CARDINAL ) .

Articles DATE of Chapter CARDINAL set out the punishment for aggravated receiving offence , professional receiving offence , negligent receiving offence and petty receiving offence . Article CARDINAL read :

Article DATE Restrictions

( CARDINAL ) A person who has committed the offence by which the property was obtained , shall not be convicted of an offence referred to in DATE Chapter .

( CARDINAL ) The provisions of this LAW do not apply to a person living in the same household as the offender and who only uses or consumes property obtained by the offender for ordinary household needs .

By Act no . CARDINAL/CARDINAL , which came into force on DATE , separate provisions concerning money laundering were added to LAW of LAW . The provision concerning restrictions ( now LAW ) was also amended in that connection to cover all the offences referred to in that Chapter . It now stated specifically that a person who had committed the offence by which the property was obtained or profit was gained , was not to be convicted pursuant to LAW of LAW . According to the relevant Government PERSON ( HE CARDINAL ) , the latter amendment only served to clarify the wording of the provision .

Section CARDINAL of the Act on ORG ( laki luottolaitostoiminnasta , kreditsinstitutslag ; Act no . DATE ) , in force at the material time , placed credit and financial institutions under an obligation to report to ORG if they had reasons to suspect that assets subject to a transaction were of illicit origin . Subsection CARDINAL of the provision read in relevant parts :

“ If , based on the information reported to it or other information acquired by it , ORG considers that there are reasons to suspect that the matter concerns the concealing or obliterating of the true nature , origin or location of assets acquired through an offence , or disposition thereof or rights thereto , it shall report the matter for examination to the relevant investigating authority . ... ”

Section CARDINAL of the Act on ORG was subsequently repealed in DATE when a new Act on Preventing and ORG ( laki rahanpesun estämisestä ja selvittämisestä , lag om förhindrande och utredning av penningtvätt ; Act no . DATE ) came into effect . The latter statute contained a similar obligation for credit and financial institutions , among others , to report a suspicion of illicit origin of assets or property . The report was to be made to ORG ( rahanpesun selvittelykeskus , central för utredning av penningtvätt ) within ORG .

At the material time , making an erroneous register entry was sanctioned under LAW , LAW no . CARDINAL/CARDINAL ) . Paragraph CARDINAL of that provision stipulated that a person who , in order to cause a legally relevant error in a public register kept by an authority provided false information to that authority , or in order to gain benefit for himself or another person took advantage of an error caused in that manner , was to be convicted of a registration offence and sentenced to a fine or imprisonment for DATE .

Section CARDINAL of the LAW ( Suomen perustuslaki , ORG grundlag ; Act no . CARDINAL/CARDINAL ) , currently in force , provides :

“ Protection under the law - Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority , as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice . Provisions concerning the publicity of proceedings , the right to be heard , the right to receive a reasoned decision and the right of appeal , as well as the other guarantees of a fair trial and good governance shall be laid down by an LAW . ”

There are no explicit provisions of law concerning the right to silence and the right not to incriminate oneself . It has been left to the authorities applying the law to respect those rights . The Government Bill for the enactment of the act amending LAW ( HE CARDINAL/CARDINAL ) noted that the right to legal protection also included the right of the accused not to testify against himself under LAW and the Convention .


No violation of Art. 2-1;No violation of Art. 8;No violation of Art. 6-1

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The first applicant ( “ the applicant ” ) was born in DATE and lives in GPE .

NORP In DATE the applicant ’s companion found out that he was suffering from lymph gland cancer and Aids . He informed the applicant about the cancer but concealed his Aids infection .

On DATE he informed their family physician about his diseases but forbade him to disclose to anybody that he had developed Aids . When the applicant consulted the physician on DATE he did not mention to her that her companion was suffering from Aids . On DATE the applicant ’s companion died . During a further consultation in DATE the physician informed the applicant that her companion had died from Aids .

NORP In DATE a blood test established that the applicant was HIV - positive . Since DATE the applicant has been following antiretroviral treatment . She is not suffering from full - blown Aids .

Subsequently , the applicant sued her physician for damages before ORG ( Landgericht ) . She submitted that the physician had failed to inform her that her companion was suffering from Aids and had thus prevented her from protecting herself against infection .

On DATE the court - appointed expert , having examined the case file and a number of laboratory results , submitted his expert opinion . The expert considered that it was probable that the applicant had contracted the virus before DATE . The laboratory results dating from DATE , combined with general statistical data , only allowed a rough estimate of the time of infection . The expert further considered that it was not general medical practice in DATE to treat early HIV infections with antiretroviral drugs . During the oral hearing before ORG the expert expressed the view that an infection before DATE was very likely .

On DATE ORG , which was in possession of the physician ’s medical records on the first applicant and on her late partner , rejected the action . That court considered that the physician had not been obliged to disclose her companion ’s infection to the applicant . Having regard to his duty of confidence towards the applicant ’s companion , he would only have been under such an obligation if this could be regarded as the only possibility of preventing the applicant ’s infection . This had not been the case , as the physician had consistently advised the applicant ’s companion to take the necessary steps to prevent infection and could reasonably believe that the latter would follow his advice . Under these circumstances , ORG did not find it necessary to determine whether there was a causal connection between the applicant ’s contracting HIV and the physician ’s alleged failure to inform her about her companion ’s infection .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal . Contrary to ORG opinion , ORG considered that the physician had misconceived his duty of care owed towards the applicant in his position as family physician and overestimated his duty of confidence owed towards her companion . As laid down in CARDINAL of LAW ( see Relevant domestic law below ) a physician ’s duty of confidence owed towards a patient had to be restricted or even given up if a superior value was at stake . By not informing the applicant about the fatal threat to her health , he had committed an error in treatment . The court considered , however , that the physician had not disregarded medical standards in a blindfold way , but had only overestimated his duty of confidence while balancing the different interests . It followed that his behaviour could not be qualified as a gross error in treatment which , according to the established case - law of ORG , would have entailed a reversal of the burden of proof as to the causality of the error in treatment and the first applicant ’s HIV - positive status . Referring to the written opinion submitted by the court - appointed expert in the first - instance proceedings , ORG considered that the applicant had not been able to prove that she had contracted the virus after DATE , when the physician himself had been informed that her companion was HIV - positive . According to the expert ’s opinion , it was more likely that she had already become HIV - positive before DATE . ORG further considered that there was no doubt about the expert ’s high competence . The expert opinion was well reasoned and took into account relevant scientific publications . Under these circumstances , ORG did not find it necessary to hear further expert opinion as requested by the applicant .

ORG further considered that medical treatment such as was available in DATE would not have improved the first applicant ’s physical condition , even if she had been informed of her HIV status by that time .

On DATE ORG ( ORG ) dismissed the applicant ’s appeal on points of law for lack of prospect of success .

On DATE ORG ( Bundesverfassungsgericht ) , sitting as a panel of CARDINAL judges , refused to admit the applicant ’s constitutional complaint .

In DATE , in the course of separate criminal investigations against the physician , another medical expert submitted his opinion on the applicant ’s HIV - positive status to ORG . While not concurring with the first expert ’s opinion that it was very likely that she had contracted the virus before DATE , the expert considered that a date prior to DATE could not be excluded . In DATE ORG discontinued criminal investigations on the ground that it could not be excluded beyond reasonable doubt that the applicant had contracted the virus before DATE . Appeals by the applicant were to no avail .

On DATE the applicant requested the physician to hand her the complete medical files . On DATE the physician informed her that he had destroyed the medical files after expiry of the time - limit for storage .

Section CARDINAL of the Civil Code provides inter alia :

“ A person who , wilfully or negligently , unlawfully injures another person ’s life , body , health ( ... ) is bound to compensate him for any damage arising therefrom . ”

Section CARDINAL as in force at the material time provides inter alia :

“ In the case of injury to the body or health ( ... ) the injured party may also demand fair compensation in money for moral prejudice . ”

A patient requesting damages from a physician under section CARDINAL of LAW generally carries the burden of proof for the requisite causal connection between the physician ’s negligence and the damage to his health . According to the established NORP case - law , in case of gross error in treatment the burden of proof is reversed to the physician . A gross error in treatment is generally assumed if the physician clearly breaches well - established medical rules or assured medical knowledge , and has committed an error which does not appear to be comprehensible from an objective point of view , as a physician must absolutely not commit such an error ( see ORG , CARDINAL DATE , no . PERSON CARDINAL/CARDINAL , and DATE , no . PERSON CARDINAL ) . The existence of a gross error has been accepted in cases where a physician had not discovered a serious disease ( meningitis ) in spite of unambiguous symptoms ( see ORG , DATE , no . CARDINAL U CARDINAL/CARDINAL , or ORG , DATE , no . CARDINAL U CARDINAL/CARDINAL ) or had failed to order undoubtedly necessary medical examinations or treatments ( ORG , CARDINAL DATE , no . PERSON DATE ) or to inform the patient about the necessity to undergo further medical examinations ( ORG , DATE , no . PERSON CARDINAL ) .

Section CARDINAL of the Criminal Code provides :

“ Whoever negligently causes bodily injury to another person shall be punished with imprisonment for not DATE or a fine . ”

Section CARDINAL provides inter alia :

“ Whoever , without authorisation , discloses the secret of another , in particular , a secret which belongs to the realm of personal privacy ( ... ) which was confided to , or otherwise made known to him in his capacity as a physician ( ... ) shall be punished with imprisonment for not DATE or with a fine . ”

Section CARDINAL provides as follows :

“ Whoever , faced with an imminent danger to life , limb , freedom , honour , property , or another legal interest which can not otherwise be averted , commits an act to avert the danger from himself or another , does not act unlawfully , if , upon weighing the conflicting interests , in particular the affected legal interests and the degree of danger threatening them , the protected interest substantially outweighs the one interfered with . This shall apply , however , only to the extent that the act is a proportionate means to avert the danger . ”

If ORG refuses to prefer criminal charges against an alleged offender , the aggrieved party may , pursuant to section CARDINAL of LAW , lodge a request for a court decision .


Violation of Art. 5-4;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

On DATE the applicant was caught in the act of trying to defraud a bank by withdrawing a sum of money from someone else ’s bank account using a forged identity document . He was arrested and placed in police custody ( inverzekeringstelling ) for DATE .

On DATE an investigating judge ( rechter - commissaris ) placed the applicant in initial detention on remand ( inbewaringstelling ) for a term of DATE .

On DATE ORG ( rechtbank ) of GPE , following a hearing in camera , dismissed the applicant ’s request for suspension ( schorsing ) of his detention on remand ( voorlopige hechtenis ) and ordered the applicant ’s further detention on remand ( gevangenhouding ) for DATE . The applicant was at that time detained in the remand centre ( huis van bewaring ) of GPE ( north wing of GPE prison ) .

On DATE the applicant ’s counsel lodged a single appeal against both the refusal to suspend the applicant ’s detention on remand and the order for the applicant ’s further detention on remand .

On DATE ORG ( gerechtshof ) of The GPE rejected the appeal under both heads as out of time .

On DATE the unit manager of the north wing of FAC replied to a query from the applicant ’s counsel in the following terms :

“ Dear Mr PERSON ,

We have received your letter concerning ORG decision in good order .

In response to your request , I wish to inform you that ORG took the decision in question on CARDINAL . On CARDINAL the document was posted from ORG , on CARDINAL we received the document in DATE TIME post , and on CARDINAL the document was delivered to the prison inmates administration in the afternoon , and on CARDINAL the document was handed to Mr GPE . ( see the copy of the official delivery record ( akte van uitreiking ) ) ... ”

It appears that ORG decision refusing to order the suspension of the applicant ’s detention on remand was served on the applicant in writing on DATE at TIME A copy of the official delivery record was submitted by the applicant , annexed to the application .

After the case was communicated , the respondent Government submitted a copy of an official delivery record showing that ORG order for the applicant ’s further detention on remand was served on the applicant on CARDINAL DATE at TIME The document bears the applicant ’s signature acknowledging receipt .

The Government have also submitted a copy of a written notice of appeal , which is in the following terms ( emphasis in the original ) :

“ ORG of GPE

Legal remedy notice ( Akte rechtsmiddel )

On DATE there appeared at ORG

PERSON

Advocate practising in GPE

who declared that he had been specifically empowered by the person named hereafter to make the following statement , and stated , in the name of

name PERSON

first names PERSON

that he appealed against the decision and against the rejection of his request for suspension taken by ORG in camera on DATE . ”

The document is signed by PERSON and by the registrar of ORG .

It appears from the Government ’s submissions that the applicant was sentenced to a term of imprisonment from which the time which he had spent in detention on remand was deducted in its entirety ( LAW ( PERSON ) , see paragraph CARDINAL below ) . The applicant does not deny this .

The Code of Criminal procedure ( PERSON ) , in relevant part , provides as follows :

“ CARDINAL . An order for further detention on remand , or for the prolongation thereof , shall be in force for a period of DATE , to be determined by ORG , starting at the moment of its execution . ... ”

“ CARDINAL . The suspect can lodge an appeal with ORG against ORG decision to order or extend his further detention on remand DATE after the execution thereof . ... ”

Within the same time - limit , the suspect can appeal against an order to prolong his further detention on remand , but only if he did not appeal against the order for detention on remand , nor against an earlier prolongation order . ... ”

An order for detention on remand shall enter into force as of the moment at which the suspect is detained for the purpose of the execution of that order or as of the time at which the execution of a different order for detention on remand , given in the same case , ends , as the case may be . ... ”

NORP The applicant who has sought the termination or suspension of his detention on remand may lodge an appeal against a refusal of that request with ORG once , within DATE of the service of that decision . The suspect who has appealed against a decision refusing a request for suspension of detention on remand can not afterwards appeal against a decision refusing the lifting of detention on remand . The suspect who has appealed against a decision refusing a request for suspension of detention on remand can not afterwards appeal against a decision refusing the suspension of detention on remand . ... ”

“ CARDINAL . Except as otherwise provided by law , an appeal or appeal on points of law shall be introduced by a declaration to be made by the person making use of the legal remedy at the registry of the court by which or within which the decision has been given . ... ”

“ CARDINAL . Legal remedies , as referred to in Article CARDINAL , can also be made use of through the offices of :

a. an advocate , if he or she declares that he has been specifically empowered for that purpose by the person making use of the legal remedy ; ... ”

“ CARDINAL . If the person who wishes to make use of a legal remedy is detained in a remand centre , prison or custodial clinic , ... then he can also make use of the legal remedies ... by means of a written declaration submitted to the person in charge of the institution .

NORP The person in charge of the institution shall have this declaration entered in a register kept for that purpose without delay , and then forward it to the registry of the court by which , or within which , the decision has been given , stating the date of entry in the register . The date on which the legal remedy is made use of shall be deemed to be the date of the entry in the register . ... ”

The General Time Limits Act ( Algemene Termijnenwet ) , in relevant part , provides as follows :

“ A time limit prescribed by law of DATE shall , if necessary , be extended so that it shall comprise DATE which are not a DATE , a DATE or a public holiday . ”

Article CARDINAL § CARDINAL of LAW ( GPE ) requires the courts when sentencing in all cases to deduct from the sentence the time which the convicted person has spent in police custody and detention on remand .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The application was lodged by the association ORG e . ORG , represented by PERSON , and CARDINAL other applicants . The applicants Ms GPE , GPE , PERSON , and PERSON are NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE . They were represented before the ORG by PERSON , PERSON , PERSON and Mr PERSON , all lawyers practising in GPE .

The applicant association has its business office , and the other CARDINAL applicants live or lived , close to busy roads and intersections in GPE .

On DATE the applicants requested ORG and Drivers ( PERSON ) to take specific measures designed to curb respirable car dust emissions of diesel vehicles . The applicants requested ORG and Drivers to :

threaten the car manufacturers with withdrawal of the general operating licence ( PERSON ) for certain diesel vehicles unless they recalled the cars in question and equipped them with particulate filters within a reasonable time - limit ;

revoke the general operating licence after the time - limit for the retrofitting had expired ; and

refuse to issue the general operating licence for diesel vehicles if the cars exceeded a certain critical limit of particles .

On DATE ORG and Drivers rejected the request . It held that the general operating licenses were issued in accordance with NORP and NORP legislation . On DATE ORG and Drivers dismissed an administrative objection by the applicant , holding that there was no legal basis for an obligation to install particulate filters .

On DATE the applicants lodged an action with the administrative courts .

On DATE the Schleswig - Holstein Administrative Court dismissed the applicants’ action in its entirety . It held that the applicant association ’s action was inadmissible since ORG e . PERSON lacked the right to sue in the present case . The applicant association could not claim any right ; in particular , it could not rely on a right to be protected from a health impairment . With respect to the other CARDINAL applicants , ORG declared the action admissible , holding that they could rely on a positive obligation of the ORG emanating from their constitutional right to life and physical integrity . On the merits it found that the ORG authorities enjoyed a wide latitude and were only under an obligation to take measures of a kind that could not be said to be wholly inappropriate or insufficient for the protection of ORG rights . Referring to environmental reports submitted by the applicants , the court accepted that the particles were dangerous for the human organism but held that the NORP legislature was cognisant of the problem of respirable dust particles and , in accordance with ORG ( GPE ) legislation , had taken measures to curb such emissions . It added that the authorities were constantly monitoring the situation and had already announced further plans to tighten emission limits . The ORG had a general interest in the limitation of car emissions being harmonised at ORG level . ORG accepted that particulate filters were a very effective measure to curb emissions , but noted that other possible means included , for example , tax incentives for low - emission cars or road - traffic related measures . It concluded that the wide latitude available to the ORG to comply with its positive obligation had in the present case not been narrowed down to such an extent that the ORG authorities were under an obligation to take the specific measures requested by the applicants .

On DATE ORG confirmed that ORG . PERSON lacked the right to sue . It rejected , in particular , the applicant association ’s argument that the right to sue could be deduced from the fact that ORG , as an employer , was responsible for the health of its employees . On the merits ORG upheld the reasoning of ORG . It held that the ORG ’s positive obligation did not compel ORG authorities to take the measures the applicants had requested ; it was for the legislature and not the judiciary to decide on the appropriate ceiling on respirable dust emissions . The NORP legislature had met the requirements emanating from its positive obligation when implementing the critical values required under the NORP directives .

On DATE ORG , without giving any reasons , refused to admit the constitutional complaint lodged by the applicants .


Remainder inadmissible;No violation of Art. 5-3

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

The applicant was born in DATE and lives in GPE .

Following an anonymous telephone call at TIME on DATE informing ORG of GPE ( “ the CPD ” ) that armed men had been seen driving a car , the police urgently planned an arrest operation . The case file contains a transcript of that call .

At TIME on DATE the car , driven by the applicant , was stopped in CARDINAL of the central avenues of GPE ( for more details , see PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ) . According to the record of the applicant ’s body search undertaken on the spot , certified by CARDINAL ORG signatures , a gun was found tucked in the belt of his trousers . After the search , the applicant was immediately conveyed to the ORG .

According to the applicant ’s version of events , however , he was never searched and nor were the reasons for his arrest explained to him at the time . The record of the search was allegedly drawn up ex post facto and presented to him only at the ORG , TIME after his arrest in the street . He refused to sign the record of arrest , claiming that it had been fabricated .

At the same time the applicant contended that he had first learnt about the nature of the charges against him when glancing at the television in the room of the ORG used for questioning . The TIME news of DATE reported , quoting the investigator in charge of the case , that the applicant , “ PERSON . the ‘ Elephant of ORG , a well - known criminal and ... recidivist ... had been arrested for the unlawful transport and storage of arms in large quantities . ” Only later was the applicant presented with the investigator ’s decision , dated TIME DATE , opening a criminal case and declaring him a suspect .

On DATE , without the applicant ’s knowledge , the police conducted a search of his home in the presence of his family members . The record of that search , attested by the signatures of several witnesses , disclosed that guns and ammunition were discovered there . In addition , the police discovered and seized several NORP passports of the applicant , issued on unspecified dates and containing different serial numbers , as well as his CARDINAL old NORP passports , in CARDINAL of which he was apparently mentioned as a national of the former ORG . The applicant ’s wife refused to sign the record of the search , claiming that the police had planted firearms in their home .

On DATE the GPE ORG in GPE validated the results of the CARDINAL above - mentioned searches .

On DATE the applicant was charged with the unlawful transportation and storage of firearms and ammunition . He pleaded “ not guilty ” but promised to cooperate with the investigation . On DATE the prosecutor requested that the applicant be remanded in custody , arguing as follows :

’s ] guilt . He is not sincere in his dealings with the investigators . There exists a suspicion that he might interfere with the establishment of the truth . The possibility that he will abscond can not be ruled out . A number of investigative actions have to be undertaken ... ”

No were relied on , or specific explanations put forward , in support of the above assertions .

At a hearing on DATE , the applicant denounced the unfounded nature of the charges and stated that his family , job and fixed place of residence were guarantees of his appearance for trial . He reaffirmed his readiness to cooperate with the investigation and stated that he was suffering from diabetes . The FAC ORG ordered the applicant ’s pre - trial detention for DATE in the following terms :

“ ... Having examined [ various pieces of evidence ] ... [ the court ] has come to the conclusion that the collected evidence discloses a substantiated suspicion that the accused committed the offence in question . The evidence has been collected in conformity with the procedural norms .

“ [ In the court ’s ] opinion , the prosecutor ’s request is substantiated , and granting it would be lawful since the accused has been charged with an offence carrying PERCENT DATE imprisonment . The seized gun has to be identified ; it remains to be seen whether it has been the subject of suspicion in any other crimes . The suspicion that the accused , if released , might interfere with the establishment of the truth or , in view of the prospect of punishment , abscond is substantiated . ”

The applicant appealed , requesting his release on the same grounds as had previously been put to ORG . He submitted that the prosecution had not proved that there existed grounds for a reasonable suspicion that he might either abscond or negatively influence the investigation pending trial . The applicant also referred to his diabetes as an argument for release . The prosecutor replied that the appeal was unsubstantiated . A number of investigative measures had to be undertaken , and the applicant ’s release might conflict with the interests of the investigation . The prosecution noted that no medical certificate proving the applicant ’s disease had been submitted .

On DATE the NORP ORG upheld the detention order of DATE . It noted that the applicant should remain in custody on the basis of the circumstances “ well argued in the prosecutor ’s submissions ” . In particular , the court continued , “ there existed sufficient grounds for the assumption that the applicant ’s release pending trial would hinder the establishment of the truth and , in particular , the due assessment of the evidence submitted by the accused . ”

Both the initial detention order of DATE and the appeal decision of DATE endorsed the fact that firearms and ammunition had been discovered on the applicant ’s body and at his home on DATE .

On DATE , the applicant ’s lawyer requested an official expert medical opinion on the applicant ’s condition . The request was dismissed by the investigator on DATE on the ground that the applicant had the right to have himself examined by an independent medical expert .

On DATE the applicant ’s lawyer requested the prosecution to include in the criminal case file the written statements of CARDINAL persons whom he had questioned himself . Some of those persons , having been eyewitnesses to the applicant ’s arrest in the street on DATE , stated that the applicant had not been searched on the spot . Others , being witnesses to the search of the applicant ’s home , testified that the police had planted the firearms there . The lawyer also requested that those witnesses be interviewed by the prosecution .

On DATE the investigator in charge of the applicant ’s case refused to include the above - mentioned statements as evidence in the file or to interview their authors . He reasoned that , since all of the witnesses who had allegedly been eyewitnesses to the applicant ’s arrest were women , they would have been uninterested in what had been happening in the street and their testimonies , being moreover “ superficial , incomprehensive and unsubstantiated ” , were not trustworthy . The investigator suggested that those female witnesses might have been influenced and recalled that , in any case , the search on the spot had already been confirmed by other ORG signatures . As to the witnesses to the search of the applicant ’s home , the investigator considered that , as they were his neighbours , they were not impartial .

The applicant ’s lawyer challenged that decision before the prosecutor , complaining , inter alia , that the investigator had discriminated against the female witnesses . The prosecutor dismissed the appeal on DATE and instead ordered that the police officers who had been involved in the applicant ’s arrest and in the search of his house be questioned .

An alternative expert medical opinion of DATE confirmed that the applicant was suffering from a progressive type of diabetes and needed intensive insulin treatment . The opinion concluded that the risk of hypoglycaemia was high which , in the absence of urgent intervention , could lead to the applicant ’s death . The following week , the applicant was transferred , upon his request , to the prison hospital where he stayed until his release ( see paragraph CARDINAL below ) .

On DATE the investigation was terminated and the case sent to the NORP - Saburtalo ORG . During the trial , which opened on DATE , the applicant ’s lawyer complained of the prosecution ’s refusal to admit to the file the above - mentioned CARDINAL testimonies ( see paragraph CARDINAL above ) . He also referred to the fact that the witnesses for the prosecution , whose signatures certified the record of the applicant ’s search , had changed their testimony in favour of the latter . In fact , when interviewed by ORG , those persons said that they had not witnessed the actual process by which the gun on the applicant ’s body had been revealed .

In its verdict of CARDINAL DATE , the NORP - Saburtalo ORG convicted the applicant of the unlawful transportation and storage of firearms and ammunition . In its opening part , the verdict referred to the applicant as an unemployed person . The court did not accept the prosecution witnesses’ altered testimonies , considering that they had been influenced by the applicant ’s authority as a criminal ringleader . As disclosed by the record of the hearing , the prosecutor submitted DATE subsequently endorsed by the court – that the applicant ’s “ donation ” of CARDINAL NORP laris ( ORG CARDINAL ) to ORG of the Law - Enforcement Agencies ” should be considered as a mitigating factor . The facts that the applicant had had no prior convictions and was suffering from diabetes were also endorsed as mitigating circumstances . The applicant was sentenced to DATE imprisonment , suspended , and was immediately released from the courtroom .

On DATE the applicant challenged the verdict before ORG , seeking an acquittal . However , on DATE he informed ORG that he had lost interest in the proceedings and withdrew his appeal . According to the applicant , he had done so for security reasons , as the authorities had threatened to arrest him again .

“ When the police officer , or other competent official , decides that the grounds prescribed by this Code for an arrest exist , he should inform the suspect thereof in understandable terms . Namely , the officer should explain to the suspect what are the charges leveled against him ... and convey him to a police station or other lawenforcement office . ”

“ A restraint measure shall be applied to ensure that the accused can not avoid the preliminary investigation and trial , that his further criminal activity is prevented , that he can not interfere with the establishment of the truth in the given criminal case , or that the court ’s verdict is executed .

The application of a restraint measure is justified if the evidence in the criminal case file sufficiently substantiates the assumption that it is necessary to ensure the attainment of the aims mentioned in the first paragraph of this Article .

The ground for the imposition of pre - trial detention can be a substantiated suspicion that the accused may abscond or interfere with the establishment of the truth in the criminal case , or that a serious or grave crime has been committed . ”

Apart from pre - trial detention , LAW envisaged the possibility of using such measures of pre - trial restraint as police supervision , home arrest , bail or a personal undertaking not to leave the place of residence .

“ Pre - trial detention shall be imposed only with regard to persons charged with an indictable offence carrying [ a punishment of ] DATE imprisonment ... ”


Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and who died on DATE . His long - term partner , PERSON , expressed her wish to pursue the application . The applicant and PERSON are represented before the Court by Ms I. Eglīte , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

NORP The applicant was suffering from a terminal illness – polycystic kidney and liver disease . It appears that it was first diagnosed in DATE . Up to DATE he underwent treatment DATE in GPE , GPE . From then until DATE he received treatment in GPE , GPE . Upon his return to GPE in DATE the applicant was admitted to the ORG civil hospital in Rīga on CARDINAL occasions for a total duration of DATE in DATE and on CARDINAL occasions for a total duration of DATE in DATE . It appears that he also visited that hospital CARDINAL times a week for haemodialysis ( artificial kidney ) sessions .

At least since DATE the applicant had been recognised as being Category CARDINAL disabled ( the most severe degree of disability ) .

According to the ORG , on DATE the applicant was convicted of acquisition of narcotics and sentenced to CARDINAL years’ imprisonment , which was suspended due to his state of health .

On DATE the applicant was arrested on the street on suspicion of possessing drugs . A preventive measure – police supervision – was imposed on him . Following forensic examinations , it was established that the applicant had been in possession of CARDINAL packages of cannabis , in total QUANTITY . Criminal proceedings were opened , charges were brought against the applicant and the case was sent to ORG ( PERSON apgabaltiesa ) .

On DATE ORG requested ORG ( PERSON vietu pārvalde ) to state whether it could ensure appropriate medical treatment for the applicant in custody . On DATE ORG replied that the applicant was suffering from a severe and terminal illness and that his prospects were poor . They contended that they could not provide the necessary medical care to the applicant , or ensure his regular attendance ( CARDINAL times per week ) at a specialised hospital .

On DATE ORG requested ORG ( NORP tiesu medicīnas ekspertīzes centrs ) to evaluate the applicant ’s state of health and determine if he was fit to serve a custodial sentence .

On DATE forensic experts drew up report no . CARDINAL-K , which concluded that the applicant was suffering from a severe and terminal illness – polycystic kidney and liver disease , as well as from chronic kidney failure , secondary hypertension , secondary anaemia , coronary heart disease , a form of stenocardia , and an old myocardial infarction . It stated that in order to survive he needed CARDINAL TIME haemodialysis sessions per week in a hospital , but that permanent inpatient treatment was not necessary . The forensic experts reached the conclusion that the applicant was fit to serve a custodial sentence upon the condition that his transfers to a specialised centre for haemodialysis were ensured and that he received medicine prescribed by a nephrologist and a cardiologist .

On DATE ORG convicted the applicant of the repeated acquisition of narcotics . The applicant pleaded guilty . The court took into consideration forensic report no . CARDINAL-K and stated its agreement with it ; it had “ critically evaluated ” ORG contention that they could not provide the necessary medical care . It made no further comments in this regard . The court sentenced the applicant to DATE imprisonment . Taking into account that the applicant had breached a previous suspended DATE custodial sentence , the court joined both sentences and determined a total custodial sentence of DATE . The custodial sentence was suspended until his conviction took effect ; a preventive measure of police supervision was imposed until then .

The applicant appealed against the judgment . He requested that his sentence be changed to a more lenient one . He argued that , taking into account his state of health and the fact that it was not possible to provide him with the necessary medical care in prison , a custodial sentence would amount to a death penalty . He noted that the first - instance court had rejected ORG contention without any reasoning . He also pointed out that the outcome of the case would affect his partner and their minor son . On DATE ORG ( GPE tiesas GPE tiesu palāta ) allowed the applicant ’s appeal and scheduled a hearing for DATE .

NORP On DATE , while the applicant was still at liberty , the appellate court , upon an application from the police department , decided to change the preventive measure of police supervision to a less restrictive one . It was noted that supervision of the applicant had become difficult because of his state of health . The applicant was instead required not to change his place of residence and he was thus no longer subject to police supervision .

On DATE ORG upheld the judgment of the first - instance court . The court considered that , regardless of ORG contention , the applicant had to receive a custodial sentence under the penal law . It was noted that ORG had an obligation to organise the execution of custodial sentences .

On CARDINAL DATE ORG of the ORG of ORG ( PERSON tiesas ORG departaments ) dismissed the applicant ’s appeal on points of law ; the applicant ’s conviction took effect . The ORG established that the sentence imposed on the applicant was the minimum sentence provided for in law for the type of offence ; a more lenient sentence ( than that provided for in law ) was impossible since the applicant had reoffended . The ORG noted that a court could release a prisoner under section DATE , paragraph CARDINAL of LAW if he or she had fallen ill with a severe and incurable illness after the pronouncement of the judgment . The applicant , however , had been suffering from an incurable illness since long before his conviction . Moreover , his illness had not prevented him from committing an especially serious offence . The ORG pointed out that under section CARDINAL of the LAW emergency medical care was available to detainees , if necessary in a civil setting . ORG was under an obligation to organise the execution of custodial sentences ; if such execution became impossible , section CARDINAL of the Law of Criminal Procedure provided for the possibility of release on health grounds . This could only be decided by a judge overseeing matters of execution of custodial sentences , after the conviction had taken effect .

After the applicant ’s conviction took effect , on DATE he was detained and placed in a temporary investigative unit . On DATE he was transferred to a prison .

On DATE the applicant was transferred to FAC in GPE and was placed in the hospital located therein ; he remained there for DATE .

According to the Government , the applicant received particular attention from the prison hospital ’s personnel . In all , he was taken for CARDINAL haemodialysis sessions in the ORG hospital .

On DATE the applicant was transferred to FAC , where he was detained for DATE . According to the Government , the applicant was placed in the inpatient treatment unit and prison doctors attended to and examined him DATE , on DATE more than once , because of high arterial blood pressure . For the same reason , an emergency ambulance was often called . The applicant received CARDINAL haemodialysis sessions in a civil hospital in GPE .

It appears that on DATE it was recorded that his health had deteriorated and he was placed in a civil hospital in GPE , where he remained until DATE .

On DATE he was transferred to the prison hospital in GPE for medical treatment ; he remained there for DATE . The applicant was taken for CARDINAL haemodialysis sessions in the ORG hospital during that period .

On DATE a medical commission ( consisting of doctors from ORG , the prison hospital and FAC ) examined the applicant . They established that the applicant was suffering from the same illnesses as mentioned in forensic report no . CARDINAL-K , but that his state of health had deteriorated . The applicant ’s body had reacted badly to haemodialysis : his arterial blood pressure had been extremely high after the sessions and it had remained high on DATE when he was not on haemodialysis ; this had caused complications for the applicant ’s heart ( stenocardia seizures ) , for which qualified medical assistance could not be provided in prison .

On the basis of the medical commission ’s report , the administration of ORG applied to ORG Valmieras rajona tiesa ) for permission to release the applicant on account of his state of health .

On DATE ORG ( NORP cilvēktiesību birojs ) , following a complaint by the applicant , issued an opinion , which was not binding on the domestic authorities , inviting ORG to release the applicant on health grounds . It was noted that the prison authorities were not in a position to provide the requisite medical assistance to detainees because of a lack of financial resources . CARDINAL % of the necessary financial resources had been allocated in DATE for medical assistance in prisons . They noted that these budget cuts had meant in practice that the scope of primary and secondary medical care was significantly reduced and that preventive care ( screening for GPE , ORG and HIV / AIDS ) was largely limited . Therefore , ORG contention that they could not provide the necessary medical care to the applicant held true . It also had to be taken into account that CARDINAL prisoners were being held in penal institutions and that every CARDINAL of them was entitled to an equal amount of medical care . Finally , in support of their argument that the prison authorities were not in a position to ensure adequate medical assistance , they referred to the ORG ’s ruling in the case of GPE v. GPE ( no . CARDINAL , DATE ) .

On DATE ORG examined the application for release . It also had before it the opinion of ORG . Following a hearing in the presence of the applicant ’s representative , the court released the applicant from the further serving of his custodial sentence on the grounds of section CARDINAL , paragraph CARDINAL of LAW and section CARDINAL , paragraph CARDINAL of LAW . The applicant was released on DATE .

Following his release , the applicant ’s state of health deteriorated .

In DATE an ambulance was called to the applicant ’s aid on CARDINAL occasions , on DATE CARDINAL times .

In DATE an ambulance was called to his aid on QUANTITY occasions . The applicant was admitted to hospital , where he remained from DATE ; he underwent his ordinary haemodialysis sessions , as well as some additional ones .

The applicant was again hospitalised on DATE , and he underwent urgent haemodialysis . Afterwards the applicant left the hospital .

In DATE an ambulance was called to his aid on QUANTITY occasions until the last call was made on DATE . He had apparently fallen ill , collapsed and lost consciousness . The applicant was taken to hospital in a critical condition , in a deep coma ( koma PERSON ) . Doctors discovered that he had a brain haematoma ( smadzeņu hematoma ) and diffuse cerebral oedema ( difūza smadzeņu tūska ) . The applicant died on DATE ; haemorrhagic stroke ( hemorāģisks insults ) and high arterial blood pressure ( arteriāla hipertensija ) were registered as the cause of death .

According to section CARDINAL , paragraph CARDINAL of LAW ( PERSON ) , in force since DATE , if a convicted person has fallen ill with a severe and incurable illness after the pronouncement of a judgment , a court may release that person from serving the remainder of the sentence .

According to section QUANTITY of LAW ( ORG izpildes kodekss ) , if a convicted person has fallen ill with a severe and incurable illness owing to which he or she is unable to serve the remainder of his or her sentence , the relevant penal institution has to order a medical examination and , on the basis of the results , make an application for release to the appropriate court .

The relevant part of section CARDINAL , paragraph CARDINAL of LAW ( GPE likums ) , in force since DATE , provides that a judge may release a convicted person from serving the remainder of his or her sentence if that person has fallen ill while serving the sentence , taking into account the personality of the convicted person , the nature of the crime , and other circumstances . Before the entry into force of LAW , the relevant provision was contained in LAW kodekss ) .