Violation of Art. 10 with regard to certain statements;No violation of Art. 10 with regard to other statements;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE . He is a journalist .

On DATE the LANGUAGE language DATE newspaper “ LOC ” published an article entitled “ The minor affairs of the big FAC ” , signed by the applicant . He gave as sources for his article the outcome of an investigation conducted by him and the materials of a ORG concerning the selling of aircraft . The article stated , inter alia , that :

“ The scandal of the sale of NORP aircraft at dumping prices attracted the public attention of NORP society , which is already used to being unsurprised by such events . However , these still ongoing events offered our newspaper the opportunity to focus on this topic ( see , ' ORG ' No . DATE and CARDINAL and DATE ) . This article is an attempt to give a meaning to the events , which happened within ORG ( ' SACA ' ) in DATE , on the basis of facts which became known as a result of a press investigation .

In DATE FAC ( ' ORG ' ) split from ORG and became an independent enterprise . The Head of ORG , while PERSON was appointed as Head of ORG . An agreement was signed between ORG and PERSON for a period of DATE . In DATE the above agreement was cancelled on the grounds of the negligence of A.I. in carrying out his duties . This fact was the starting point of the story which follows .

PERSON disagreed with ORG 's decision on his dismissal and lodged a court action seeking his reinstatement . Since court proceedings in GPE are so lengthy , PERSON , who could not accept his dismissal , took steps to approach ORG 's staff . To this end , he organised with the support of his adherents a demonstration on the old FAC . PERSON took the floor and the core of his speech was that he was the only person who , as head of ORG , could ensure its economic growth .

ORG also decided to seek the opinion of its staff and for this purpose , its Director General , ORG , summoned a meeting of his deputies and the FAC units ' heads . Everyone expressed a view and the common opinion was that PERSON was not the right person to be the head of ORG . Hence , the meeting of the Airport administration clearly expressed its distrust of PERSON

Nevertheless , such an outcome did not discourage the pretender to the chairmanship . He even issued a leaflet entitled ' Appeal to the FAC staff ' , which stated : CARDINAL . ORG unfairly dismissed PERSON ; CARDINAL . PERSON will inevitably become ORG 's Chief Executive .

This proved to be true , when the court declared ORG 's actions to be illegal and ordered the reinstatement of PERSON in his previous post . ... ”

The following related to the events that took place after PERSON 's reinstatement :

“ ... The purging and transfer of staff marked the reinstatement of PERSON in the position . Many were reminded of their disapproval of the candidature of PERSON for the position of Chief Executive of ORG , expressed at the meeting with directors and managers . ... Once he had become Chief Executive of FAC for the second time and after he had successfully accomplished the first staff purge by means of the reorganisation of the enterprise 's structure , PERSON called up his ' team ' , which had been created in between his CARDINAL directorships . ... the present Director General PERSON , devoted to the policy chosen by his patron PERSON ...

... Frankly speaking , GPE himself is not a great expert in landing planes ...

... CARDINAL of the most colourful figures of PERSON 's conscription became the head of ORG , GPE Indeed , his position can be characterised as follows : the head of ORG would puzzle even an employee of ORG of any penitentiary . Here are some extracts from reports made by ORG employees :

' I bring to your attention that on many occasions the head of the staff unit came to ORG and asked for a car ... to take him home . Usually he was drunk . '

' I was silent for a long time about the sexual harassment I was exposed to from the head of ORG , until recently when he came to my office and invited me to his DATE cottage . I refused but he started to touch me . I struggled free of his hands and threatened to hit him with a telephone if he would not stop .... Once , when I entered GPE 's office for work - related purposes , he closed the door and asked me to show him my breasts . '

... it is probably unnecessary to describe every detail of the adventures of this unrestrained civil servant ( распоясавшегося функционера ) ...

... The saying that everything is possible ( не боги горшки обжигают ) is borne out by another example , namely the former veterinary doctor , but currently the Manager of the Services ' ORG , GPE ...

... PERSON has appointed PERSON ( a graduate of ORG ) ....

However , now public opinion in GPE is focused , as we already stated , on the shady deal of the sale of aircraft . The shady deal , behind which , in the opinion of many civil aviation employees , were PERSON and NORP ”

On an unspecified date in DATE CARDINAL employees of ORG - I.V. , GPE , GPE , ORG and PERSON ( hereinafter : “ the complainants ” ) - lodged separate civil actions for defamation against the applicant and the publishing office of the newspaper with ORG . Relying on Articles CARDINAL and CARDINAL of LAW , the complainants alleged that the article contained statements which were defamatory of them . On DATE ORG decided to join all CARDINAL actions .

On DATE ORG found that the information contained in the article was defamatory of each of the complainants and did not correspond to reality in respect of ORG , GPE and PERSON In the same decision , the complainants were awarded damages to be paid by the applicant and the newspaper .

NORP The court found that the following passage was defamatory of GPE and did not correspond to reality :

“ ... One can become convinced about this by the example of another worker promoted by PERSON It is I.V. Not long ago , ORG working somewhere in the system of road transport and knew no more about planes than an ordinary person knows , and perhaps what he had been told by his relative PERSON But , probably , I.V. had shown a special interest in airport matters and the idea to hire him at the FAC came to his influential relative . To this end , he did not even hesitate to create a new position – Deputy Director of Handling . ... ”

The court found that ORG was not a relative of PERSON and that there was no proof that it was PERSON who had invited I.V. to work at the FAC and created a new position for that purpose . The court also found that ORG had completed technical studies and had graduated from ORG . The applicant and the newspaper admitted that the information about I.V. being a relative of PERSON was not accurate . The newspaper offered to publish a notice withdrawing it .

The court ordered the applicant and the newspaper to pay I.V. damages of CARDINAL Moldovan Lei ( ORG ) and ORG CARDINAL respectively .

The court further ruled that the sentence :

“ Frankly speaking , GPE himself is not a great expert in landing planes ”

was defamatory of FAC The court agreed that FAC had made a rough landing in GPE once ; however , that case could not serve as a basis to question his entire expertise . The court ordered the applicant and the newspaper to pay GPE damages of MDL CARDINAL and MDL CARDINAL respectively .

The court quoted in its decision the following CARDINAL passages as being defamatory of PERSON :

“ CARDINAL of the most colourful figures of PERSON 's conscription became the head of ORG , GPE Indeed , his position can be characterised as follows : the head of ORG would puzzle even an employee of the staff unit of any penitentiary ”

and

“ it is probably unnecessary to describe every detail of the adventures of this unrestrained civil servant ( распоясавшегося функционера ) . ”

The applicant explained that the words used to describe GPE were justified by the latter 's conduct ( see paragraph CARDINAL above ) . In this respect the applicant put forward CARDINAL witnesses . CARDINAL of them declared that on CARDINAL occasion GPE had been drunk and that the witness had written a report to the Chief Executive about that . The other CARDINAL witnesses were female employees who declared that on several occasions PERSON had sexually harassed them .

The court decided not to admit the testimony of the first witness , because no sanction had been applied to GPE as a consequence of the report . As to the statements of the CARDINAL female witnesses , the court did not make any assessment of them .

The court ordered the applicant and the newspaper to pay the complainant damages of ORG and MDL CARDINAL respectively .

The court found that the sentence :

“ The saying that everything is possible ( не боги горшки обжигают ) is borne out by another example , namely the former veterinary surgeon , but currently the Manager of ORG , C.V. ”

was defamatory of ORG , and did not correspond to reality .

NORP The applicant admitted that a mistake had been made , since C.V. did not graduate from a veterinary school . The court found that C.V. had a diploma from a business school .

The court found that the phrases :

“ PERSON has appointed PERSON ( a graduate of ORG ) ....

were defamatory of ORG , and did not correspond to reality .

NORP The applicant admitted to having made a mistake as regards the university attended by GPE , the court finding that she had a diploma from ORG . As to the “ shady deal ” , the applicant argued that the dubious character of the transaction with ORG - owned aircraft was evident from an official report of ORG and that the participation of GPE in the conclusion of that transaction was not contested by NORP herself . Relying on statements of PERSON and GPE , the court found that , even though they were involved in the transaction concerning the sale of ORG - owned aircraft , they were part of a special commission created by the Government for the purpose of the transaction and that they were not the key persons in that transaction . The court ordered the applicant and the newspaper to pay NORP damages of ORG and MDL CARDINAL respectively .

The court identified in its decision the following extracts as being defamatory of PERSON and as not corresponding to reality :

“ ... PERSON [ ... ] organised with the support of his adherents a demonstration on the old FAC . ... He even issued a leaflet , entitled ' Appeal to the FAC staff ' . ... The purging and transfer of staff marked the reinstatement of ORG in the position . Many were reminded of their disapproval of the candidature of PERSON for the position of Chief Executive of ORG , expressed at the meeting with directors and managers . ... Once he had become Chief Executive of FAC for the second time and after he had successfully accomplished the first staff purge by means of the reorganisation of the enterprise 's structure , PERSON called up his ' team ' , which had been created in between his CARDINAL directorships . ... the present Director ORG , devoted to the policy chosen by his patron PERSON ... One can become convinced about this by the example of another worker promoted by PERSON It is I.V. Not long ago , ORG working somewhere in the system of road transport and knew no more about planes than an ordinary person knows , and perhaps what he had been told by his relative PERSON But , probably , I.V. had shown a special interest in airport matters and the idea to hire him at the FAC came to his influential relative . To this end , he did not even hesitate to invent a new position – Deputy Director of Handling . ... Later , PERSON dismissed them from their positions ... Instead of them he appointed ( a ) PERSON ( who some time ago had graduated ORG ) , ( b ) S.I. ( a graduate of ORG ) . ... Later on , PERSON dismissed ORG from the position of Director of ORG .... the shady deal , behind which , in the opinion of many civil aviation employees , were PERSON and NORP ”

The applicant put forward a witness who claimed to have heard about a meeting that was held on FAC . He also referred to CARDINAL employees of the FAC who had been dismissed immediately after PERSON 's reinstatement , in support of his statement regarding the alleged staff purge . The court considered that there was no proof that it was PERSON who had organised the meeting on FAC or that it was he who later organised a staff purge . The court found that , according to the existing procedures , PERSON did not have the right to employ or to dismiss personnel . Relying on statements of PERSON and GPE , the court also found that even though they had been involved in the sale of ORG - owned aircraft , they had been part of a special Commission created by the Government for the purpose of the transaction and that they were not the key persons in that transaction .

The newspaper submitted that the article had not been intended to defame the complainants and that it was ready to publish a notice correcting the factual mistakes as to ORG being a relative of PERSON and as to the schools attended by PERSON and NORP

The court ordered the applicant and the newspaper to pay ORG damages of MDL CARDINAL and MDL CARDINAL respectively and to publish a notice withdrawing all the statements concerning the complainants found to be defamatory .

The applicant and the newspaper lodged an appeal against this judgment with ORG . The applicant requested that the decision be quashed , submitting that he had produced sufficient evidence substantiating the accuracy of the statements made in the published article , despite certain minor and accidental factual errors .

As regards ORG , the applicant provided copies of the former 's employment record , including his previous job at an insurance company specialising in car insurance . The applicant also argued that there was nothing defamatory in the statement that ORG was a relative of PERSON and that it was true that the position of Deputy Director of Handling had never existed before the employment of ORG

In respect of GPE , the applicant noted that the accuracy of his statements had been substantiated by the written depositions of the complainant himself , which established that he had been involved in a minor aircraft accident in GPE .

As to GPE , the applicant pointed out that the witnesses put forward by him ( Airport employees ) confirmed the acts of sexual harassment and abuse ( see paragraphs CARDINAL and CARDINAL above ) by PERSON

As to ORG , the applicant admitted having made an error in the job profile and that PERSON was not a veterinary surgeon but had a basic diploma in nursing . The applicant did not consider the description given by him to be defamatory .

In so far as NORP was concerned , the applicant stated that confusion had occurred in respect of the institution she had graduated from . He also submitted that she had indeed worked on the economic aspects of the transaction regarding the sale of ORG - owned aircraft and that the dubious character of that deal was proved by an official report in an issue of ORG ( “ FAC ) .

As regards PERSON , the applicant noted that the accuracy of the allegations had been proved by the depositions of witnesses and by the content of the leaflet attached to the appeal application .

On DATE the ORG allowed in part the applicant 's appeal and amended ORG decision by dismissing the initial action filed by GPE , on the ground that the statement contained in the article about him ( see paragraph CARDINAL above ) had reflected the truth and had therefore not been of a defamatory nature . The court also reduced the amount of the damages to be paid by the applicant and the newspaper to the complainants . The court justified the reduction by the fact that the circulation of the newspaper “ Express ” was limited . Accordingly , the applicant and the newspaper were ordered to pay MDL CARDINAL and MDL CARDINAL respectively to ORG , ORG and MDL CARDINAL respectively to GPE , ORG CARDINAL and MDL CARDINAL respectively to ORG , MDL CARDINAL and MDL CARDINAL respectively to ORG and ORG and ORG CARDINAL respectively to PERSON

The applicant and the newspaper lodged an appeal in cassation with ORG , submitting that sufficient supporting evidence had been produced to the first and the second instance courts to prove the truth of the statements made in the impugned article . In particular , the applicant noted that relevant supporting information had been contained in the report of ORG on the illegal sale of aircraft published in ORG and that therefore he should be exonerated from any civil responsibility .

On DATE ORG dismissed the appeal in cassation and upheld the decisions of ORG and ORG , stating that the appeal in cassation was unfounded . The court concluded that the impugned article had contained both defamatory statements which did not correspond to reality and statements which were not of a defamatory nature but did not correspond to reality . The court further ruled that the award of damages imposed on the newspaper had not in any way infringed its right to freedom of expression guaranteed by LAW and by the PERSON on the Press .

The relevant provisions of LAW in force at the material time read :

Article CARDINAL . Protection of honour and dignity

“ ( CARDINAL ) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality , as well as statements which are not damaging to honour and dignity , but do not correspond to reality .

( CARDINAL ) When the media body which circulated such statements is not capable of proving that these statements correspond to reality , the court shall compel the publishing office of the media body to publish , not later then DATE after the entry into force of the judicial decision , a withdrawal of the statements in the same rubric , on the same page or in the same programme or series of broadcasts . ”

Article CARDINAL . Compensation for moral damage

“ ( CARDINAL ) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality , as well as statements concerning his or her private or family life without his or her consent , shall be compensated by way of a pecuniary award . The amount of the award shall be determined by the court .

( CARDINAL ) The amount of the award shall be determined by the court in each case as an amount equal to CARDINAL minimum wages if the information has been circulated by a legal person and CARDINAL if the information has been circulated by a natural person . ”

NORP The decision of ORG . CARDINAL of CARDINAL DATE

Having examined the report of ORG on the re - examination of the materials concerning the report of the Auditor 's ORG and the sale of the ORG - owned aircraft , which has established numerous serious illegalities committed by public servants from the previous and the present Government , the ORG adopts the following decision : ...

Art . CARDINAL . – The Commission shall continue its activity and shall establish the responsibility of the Prime Minister , of the members of the Government and of other persons mentioned in the ORG within DATE .

Art . CARDINAL . – The heads of the institutions mentioned in the ORG 's report shall take the appropriate measures for sanctioning the servants responsible for the illegalities and shall communicate the adopted measures to the ORG .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

At the material time he was a journalist at the newspaper ORG in GPE .

On DATE , following the local elections , the newspaper ORG published an article by the applicant accusing ORG , the newly elected mayor of PERSON , of having collaborated with the PERSON ( the intelligence service during the NORP period ) . The article , featured on the third page of the newspaper , was announced on the front page by the headline : “ Mayor with file ” ( PERSON ) .

The relevant parts of the article read as follows :

“ ORG ' safety above ORG security

The newly elected mayor , [ A.V.I. ] , is suspected of having collaborated with the ORG

The first scandal concerning the ORG files is about to burst in the town of PERSON . The elected mayor , [ A.V.I. ] is suspected by some citizens – whose names will not be made public for obvious reasons – of having collaborated with the ORG . Based on information from inside ORG , our sources said that [ A.V.I. ] was under surveillance until DATE as an irredentist chauvinist , which made it impossible for him to obtain a history teaching post in PERSON ... During the same period [ A.V.I. ] was allegedly persuaded to collaborate with the ORG , and a file allegedly exists on this matter ...

Before the local elections , [ A.V.I. ] lodged a written statement with ORG ... declaring that he had not been part of the former ORG . He informed us DATE that what he had written in that statement was true and that he had never collaborated in any way with the secret police before DATE . ”

On DATE A.V.I. lodged a criminal complaint for insult and defamation against the applicant with ORG . His complaint also included the company which published the newspaper .

ORG heard testimonies from CARDINAL witnesses who confirmed that they had told the applicant about the rumours concerning the victim 's collaboration with the ORG .

On DATE the applicant gave a statement to the court . He pleaded not guilty and relied in his defence on the right to freedom of expression and the right to provide information about public figures .

On DATE the ORG gave judgment in the case . It considered that the applicant had not committed defamation , as he had not referred to any specific offences allegedly committed by the victim . It found that the expressions used by the applicant , including the headline on the front page , were manifestly insulting to the victim . However , ORG noted that the applicant had not described any of the rumours as fact and that he had also presented the victim 's point of view in the article .

It further considered that a certain degree of aggressiveness was common in journalism and that therefore , although the facts met the legal criteria to constitute the and their consequences were not severe enough to come within the sphere of criminal law .

ORG acquitted the applicant of both defamation and insult and imposed an administrative fine of CARDINAL NORP lei ( ROL ) . The court also found that the conditions had been met for the applicant 's civil liability and that of the company publishing the newspaper , in respect of the prejudice caused to the victim . It thus ordered the applicant and the company to pay ORG to A.V.I. as compensation for non - pecuniary damage . Lastly , the applicant was ordered to pay ROL CARDINAL to the ORG in court fees .

All parties appealed . The victim contested the acquittal and sought to have the amount of damages increased . The company publishing the newspaper argued that the prejudice had not been proven by the victim . The applicant claimed that the legal requirements had not been fulfilled either for the existence of the offence of defamation or for the existence of insult .

On DATE the parties ' representatives presented the grounds for appeal orally before ORG . The applicant was invited to speak only before the end of the hearing ( ultimul cuvânt al inculpatului ) . In his address he requested that ORG 's appeal be dismissed .

The final decision was adopted on DATE . ORG allowed the appeal lodged by A.V.I. It acquiesced in the statement of facts established by ORG but considered that the first - instance court had failed to interpret them correctly . It found that the expressions used by the applicant , in particular , “ the mayor is suspected of having collaborated with the ORG ” , “ was allegedly persuaded to collaborate with the ORG , and a file allegedly exists on this matter ” and “ was under surveillance as an irredentist chauvinist ” , were manifestly defamatory and , if true , would expose the victim to public opprobrium at the least . It considered that the applicant 's intention to denigrate was proved and that he was not therefore covered by LAW and the Convention , which guaranteed the right to freedom of expression only when it was exercised in good faith . However , for and their consequences were not severe enough to come within the sphere of criminal law . It therefore acquitted the applicant on both accounts and imposed on him an administrative fine of ROL CARDINAL .

The court also considered that the prejudice incurred by the victim had not been correctly evaluated by ORG and increased the amount to be paid by the applicant and the newspaper company to ORG . It awarded ORG CARDINAL,CARDINAL,CARDINAL for costs , to be paid jointly by the applicant and the company . Lastly , the court ordered the applicant to pay ROL MONEY to the State for court fees .

On DATE the applicant paid the administrative fine .

The relevant provisions of ORG concerning insult and defamation and liability for paying damages in force at the material time are described in PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .

LAW has been amended repeatedly and in DATE the ORG on insult and defamation were repealed ( for details , see PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE ) .

NORP However , in decision no . CARDINAL of DATE ORG declared unconstitutional the removal from LAW of the ORG concerning insult and defamation .

Law no . CARDINAL amended LAW and made it mandatory for an appeal court to hear the accused where the first - instance court had acquitted him or her . Currently , where an appeal court quashes a judgment given by a first - instance court , it must decide on the evidence to be adduced and set a date on which it will take statements from the accused if the latter was not heard or if he or she was acquitted by the first - instance court ( Articles DATE § DATE , as amended ) .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lived in GPE until his arrest . He is now serving his sentence in a correctional colony in GPE .

On DATE the applicant was arrested on suspicion of fraud . DATE he was charged with aggravated robbery . On DATE GPE authorised his detention , finding that the applicant was liable to reoffend , pervert the course of justice and abscond , as he was charged with a particularly serious criminal offence , had been living unregistered in GPE and in DATE had been placed on the wanted persons ' list owing to his absconding from an investigation into aggravated fraud . The prosecution authorities used the same grounds while further extending on DATE and DATE and DATE the detention of the applicant and his CARDINAL co - defendants .

On CARDINAL DATE the applicant was charged with organisation of a criminal enterprise , CARDINAL counts of robbery , unlawful possession of a weapon , theft of a weapon , forgery of documents , fraud , aggravated theft and intentional destruction of property . On DATE he was committed to stand trial before GPE .

On DATE GPE fixed the first trial hearing for DATE and , without providing any grounds , held that the applicant should remain in custody . The Government , relying on a letter drafted on DATE by the acting first deputy of GPE President , stressed that it had been impossible to schedule the first trial hearing for an earlier date because ORG judges had been overburdened with cases . In particular , CARDINAL cases were pending before CARDINAL judges .

The first hearing fixed for DATE , as well as the following one listed for DATE had been adjourned because the presiding judge was participating in other unrelated proceedings . The hearing fixed for DATE was rescheduled because a co - defendant was ill and CARDINAL counsel failed to appear . The hearing on DATE also did not take place owing to the absence of free courtrooms .

DATE and DATE ORG held DATE hearings . Of QUANTITY hearings fixed DATE and DATE , CARDINAL were postponed because the presiding judge was participating in other proceedings and CARDINAL were rescheduled because CARDINAL co - defendants and a lawyer were ill .

On DATE a new Code of Criminal Procedure became effective . On DATE GPE extended the applicant 's and his co - defendants ' detention until DATE , holding that they were charged with especially serious criminal offences and were liable to reoffend , pervert the course of justice and abscond . The defendants and their lawyers were not present at the hearing .

On DATE ORG of GPE quashed the decision of DATE , finding that ORG had not summoned the defendants and their lawyers .

On DATE ORG re - examined the detention issue and retrospectively extended the applicant 's detention for DATE , until DATE . It held that the applicant and his co - defendants were charged with serious criminal offences and that if released they could pervert the course of justice , reoffend or abscond . ORG did not cite any factual circumstances supporting its conclusion of the defendants ' liability to interfere with the proceedings , to commit another offence or escape the trial .

The CARDINAL trial hearings fixed for DATE and DATE were adjourned because counsel was ill . The following hearing was scheduled for DATE .

On DATE ORG quashed the decision of DATE in respect of the applicant and ordered a re - examination of the detention issue . It noted that the applicant 's lawyer had been summoned to the hearing on DATE . However , he had been ill and unable to attend . ORG , reiterating that ORG had accepted the reason for the lawyer 's absence as valid , concluded that in such circumstances it should have adjourned the examination of the detention matter in respect of the applicant .

ORG once again re - examined the detention matter on DATE and retrospectively extended the applicant 's detention until DATE , referring to the same grounds as in the previous detention orders .

The applicant and his lawyers , including retained counsel , PERSON , appealed against the decision of DATE .

On DATE ORG dismissed the applicant 's appeal against the decision of DATE because no procedural or substantive violations had been established and refused to examine the statement of appeal submitted by PERSON because the latter did not attend the appeal hearing .

In the meantime , on DATE and DATE GPE , using collective orders , extended the detention of all co - defendants , including the applicant , until DATE and DATE , respectively . The reasons for the extensions were identical to those that had been given in the previous detention orders . Both detention orders were upheld by ORG on DATE and DATE , respectively . ORG found no violations of substantive and procedural law .

DATE and DATE ORG scheduled CARDINAL hearings , of which CARDINAL were postponed to obtain attendance of witnesses and victims , CARDINAL were adjourned owing to counsel 's illness or inability to attend , CARDINAL were rescheduled because defendants were not brought to the court - house from the detention facility and CARDINAL was fixed for DATE to allow defendants to study new materials presented by the prosecution .

On DATE GPE extended the applicant 's and his co - defendants ' detention until DATE . It noted that the defendants were charged with particularly serious criminal offences , certain “ episodes of criminal activity ” had not yet been examined in open court and the defendants were still liable to abscond and pervert the course of justice . The trial hearing fixed for CARDINAL DATE was rescheduled for DATE . On CARDINAL DATE ORG examined the grounds of the applicant 's appeal against the decision of CARDINAL DATE and upheld the decision .

DATE and DATE ORG listed CARDINAL hearings , of which CARDINAL were postponed because the defendants were not transported to the court - house , CARDINAL hearings were adjourned owing to the prosecutor 's or counsel 's illness and CARDINAL was rescheduled because victims and witnesses failed to appear .

On DATE GPE extended the applicant 's and his co - defendants ' detention , holding that they were charged with serious criminal offences and were liable to abscond . It appears that on an unspecified date the detention order was upheld by ORG .

At the hearing on DATE the applicant unsuccessfully asked GPE to invite his non - marital partner as a “ public defender ” in the proceedings .

Of CARDINAL hearings fixed DATE and DATE , CARDINAL were adjourned due to a lawyer 's illness .

On DATE GPE held that another lawyer should be appointed to replace the frequently ill counsel . The new lawyer was afforded DATE to study the case file .

On DATE the applicant complained to ORG that he had been ill - treated in a detention facility . ORG referred the complaint to GPE , who on DATE dismissed it as unsubstantiated and informed the applicant of his right to appeal against that decision to a higher - ranking prosecutor or a court . No appeal followed .

According to the applicant , on DATE of a court session reveille was at CARDINAL or TIME Inmates were brought to a small room of QUANTITY where they were kept for TIME . The room was cold in DATE . It was dirty and poorly lit . At TIME transportation of inmates to the courthouse began . Inmates were placed into an overcrowded van and transported in inhuman conditions for TIME ; the van called in on the way at several courthouses until the inmates reached their destination . The inmates received no food for DATE .

On DATE GPE found the applicant guilty of aggravated robbery and fraud and sentenced him to DATE imprisonment . ORG discontinued the proceedings in respect of the remaining charges either because the prosecution had dropped the charges or the limitation period had expired . It based its CARDINAL - page judgment on statements by numerous witnesses , victims and defendants who had been heard in open court , material evidence and expert opinions . ORG , with the applicant 's consent , read out statements by CARDINAL witnesses who had not been heard in open court . Those statements were made during the pre - trial investigation . The applicant was represented by retained counsel who had assisted him throughout the criminal proceedings and a court - appointed lawyer .

On DATE ORG examined the appeals lodged against the judgment of DATE . It discontinued the proceedings in respect of the fraud charges because the limitation period had expired and upheld the remaining conviction . ORG reduced the applicant 's sentence to DATE imprisonment .

On DATE the Kuybyshevskiy ORG of GPE , having established that the applicant “ had definitely taken his first steps on the road to improvement ” , authorised his release on probation . The management of the correctional colony supported that finding . The applicant was released on CARDINAL July DATE , after the decision of DATE had become final .

From DATE to DATE the applicant was detained in facility no . IZ-CARDINAL/CARDINAL in GPE , commonly known as GPE . On DATE he was transferred to facility no . IZ-CARDINAL/CARDINAL in GPE , where he was kept until DATE .

According to the applicant , the general conditions of his detention in those facilities were similar . Relying on written statements by his former fellow inmates , he argued that he had been detained in CARDINAL different cells in facility no . IZ-CARDINAL/CARDINAL and CARDINAL different cells in facility no . GPE . The cells had CARDINAL sleeping places and housed from TIME CARDINAL inmates . Given the lack of beds , inmates slept in shifts . The sanitary conditions were unsatisfactory . The lavatory pan was not separated from the rest of the cell . At no time did inmates have complete privacy . Anything the applicant happened to be doing – using the toilet , sleeping – was subject to observations by warders or inmates . The cells were infected with bedbugs and lice but the administration did not provide any insecticide . Windows , measuring QUANTITY , were covered with thick metal bars that blocked access to natural light and fresh air . The bars were only removed in DATE . In addition , CARDINAL cells had glazed windows . It was extremely cold in DATE and was hot , stuffy and excessively damp in DATE . There was no artificial ventilation . Inmates had an TIME 's DATE exercise . On his admission to a detention facility he was given a mattress and a thin blanket . The food was of poor quality . Inmates were allowed to take a shower CARDINAL times a month . The applicant contracted several infectious skin diseases . Medical assistance was not provided as the facilities lacked necessary medicines and encouraged inmates ' relatives to bring them .

The Government , relying on certificates issued in DATE by the directors of the detention facilities , submitted that in facility no . IZ-CARDINAL/CARDINAL the applicant had been detained in CARDINAL different cells measuring QUANTITY and equipped with CARDINAL sleeping places . In facility no . GPE he stayed in CARDINAL different cells , measuring from CARDINAL to QUANTITY m. On DATE when the applicant was to be transferred to a courthouse for trial hearings he was taken to “ gathering cells ” which measured QUANTITY . The Government did not provide information on a number of sleeping places in the cells in which the applicant had been kept in facility no . IZ-CARDINAL/CARDINAL . They also stressed that no information on the number of inmates in the both facilities was available as the documents had been destroyed . However , according to ORG , the applicant had an individual sleeping place at all times .

Citing the information provided by the directors of the facilities , the ORG further submitted that the cells received natural light and ventilation through windows which had been glazed . Cells in facility no . IZ-CARDINAL/CARDINAL had CARDINAL window QUANTITY wide and QUANTITY long . The smaller cells in facility no . IZ-CARDINAL/CARDINAL were equipped with CARDINAL window and the bigger cells had CARDINAL windows of the same size of QUANTITY . At the inmates ' request window glass was removed in DATE and put back in when the temperature outside decreased . The windows were covered by thick bars with “ eyelashes ” , that is , slanted plates QUANTITY apart welded to a metal screen . In compliance with the recommendations of ORG issued on DATE , the latter construction was removed from the windows on an unspecified date in DATE . The cells had ventilation shafts . The heating system in the both detention facilities functioned properly . The cells were equipped with lamps which functioned DATE and TIME . Each cell was equipped with a lavatory pan , a sink and a tank with potable water . The pan was placed QUANTITY from a dining table and was separated from the living area by a partition . Inmates were allowed to take a shower once DATE . Each inmate was given TIME to take a shower . The cells were disinfected . The Government , relying on the information provided by the director of the facility , further stated that the applicant was given food “ in accordance with the established norms ” CARDINAL times a day . As follows from medical documents presented by the Government , since his placement in detention facility no . IZ-CARDINAL/CARDINAL the applicant gained QUANTITY , weighing QUANTITY in DATE and QUANTITY in DATE . According to the Government , detainees including the applicant were provided with medical assistance . They had regular medical check - ups , including X - ray examinations , blood tests , and so on . In DATE the applicant requested medical assistance , complaining of pain in the right elbow . A preliminary diagnosis of osteoarthritis was made . However , further medical examinations and specific tests did not confirm that diagnosis . The ORG further insisted that the applicant 's allegations that he had contracted skin diseases were false . They supported their submissions with a copy of the applicant 's medical record and various medical certificates .

Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG 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 .

Until DATE criminal law matters were governed by LAW of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .

“ Preventive measures ” or “ measures of restraint ” include an undertaking not to leave a town or region , a personal guarantee , bail and remand in custody ( LAW CCrP , LAW ) .

LAW of DATE provides that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .

Under the old ORG , a decision ordering detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .

The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor , supported by appropriate evidence ( LAW CARDINAL , CARDINAL - CARDINAL ) .

When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( LAW CCrP ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW CCrP , LAW ) .

Before DATE , remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment , if they had previously defaulted , had no permanent residence in GPE or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .

The Codes make a distinction CARDINAL types of remand in custody : the first being “ during investigation ” , that is while a competent agency – the police or a prosecutor 's office – is investigating the case , and the second being “ before the court ” ( or “ during judicial proceedings ” ) , at the judicial stage . Although there is no difference in practice between them ( the detainee is held in the same detention facility ) , the calculation of the time - limits is different .

After arrest the suspect is placed in custody “ during investigation ” . The maximum permitted period of detention “ during investigation ” is DATE , but this can be extended for DATE in “ exceptional circumstances ” . Under the old ORG , extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions , taken by courts of ascending levels ( under the new CCrP ) . No extension of detention “ during investigation ” beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .

The period of detention “ during investigation ” is calculated up to the date on which the prosecutor sends the case to the trial court ( Article CARDINAL of the old CCrP , Article CARDINAL § CARDINAL of the new CCrP ) .

Access to the materials in the file is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case file , a judge , on a request by a prosecutor , may grant an extension of the detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .

Under the old ORG , the trial court was entitled to refer the case back for “ additional investigation ” if it found procedural defects that could not be remedied at the trial . In such cases the defendant 's detention was again classified as “ during investigation ” and the relevant time - limit continued to apply . If , however , the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “ during investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE , starting from the date on which he or she received the case . Subsequent extensions could only be granted if the detention “ during investigation ” had not exceeded DATE ( Article CARDINAL ) .

From the date the prosecutor refers the case to the trial court the defendant 's detention is classified as “ before the court ” ( or “ during judicial proceedings ” ) .

Before DATE the old ORG set no time - limit for detention “ during judicial proceedings ” . On DATE a new Article , CARDINAL - CARDINAL , entered into force which established that the period of detention “ during judicial proceedings ” could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant 's release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with particularly serious criminal offences .

The new ORG provides that the term of detention “ during judicial proceedings ” is calculated from the date the court receives the file to the date on which judgment is given . The period of detention “ during judicial proceedings ” 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 ) .

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

Under the new ORG , an appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention . The appeal court must rule on the appeal within DATE of its receipt ( LAW ) .

Upon receipt of the case file , the judge must determine , in particular , whether the defendant should be held in custody or released pending the trial hearings ( LAW and LAW CCrP , LAW ) and LAW ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) .

At any time during the judicial proceedings the court may order , vary or revoke any preventive measure , including remand in custody ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberation room and signed by all the judges on the bench ( LAW ORG , LAW ) .

An appeal against such a decision lies to a higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP – see paragraph CARDINAL below ) .

Under the old ORG , within DATE after receipt of the case file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to refer the case back for further investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court having jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ; or ( CARDINAL ) to fix a trial date ( Article CARDINAL ) . In the latter case , the trial proceedings must begin no later than DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .

NORP The duration of the entire trial proceedings is not limited in time .

Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE after it was lodged . In exceptional circumstances or in complex cases or in proceedings before ORG this period could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .

The new ORG provides that the appeal court must start the examination of the appeal DATE after it is lodged ( Article CARDINAL ) .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :

“ b. temporary holding facilities for criminal suspects ( ORG )

According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .

The actual conditions of detention in the ORG establishments visited in DATE varied considerably .

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG 's delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “ because they know that all complaints usually pass through the colony 's administration ” .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON Most .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

During the proceedings the court appointed a medical expert and a road traffic expert .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

Upon the request of ORG , ORG amended the flaws in its judgment on DATE .

On DATE ORG allowed the applicant ’s appeal , dismissed the ORG ’s appeal , and increased the damages awarded .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .

The proceedings are still pending .


András Sajó;Anatoly Kovler;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky

The applicant , Mr PERSON , is a NORP national who was born on DATE in the village of ORG in GPE and is currently serving his sentence in the GPE region . He is represented before the ORG by Mr I. Timishev , a lawyer practising in GPE , GPE . ORG ( “ the Government ” ) were initially represented by PERSON , the former Representative of GPE at ORG , and subsequently by their Representative , PERSON .

The applicant was one of the applicants in the ORG case ( ORG and Others v. GPE and GPE , no . CARDINAL/CARDINAL , ORG CARDINALIII ) . In his letter of DATE he requested that the present application be joined to his complaint in the ORG case , cited above . On DATE , in view of the fact that judgment had already been given in GPE , cited above , and that the complaints made by the applicant in the present case differed to a large extent from those raised by his NORP representatives in GPE , the ORG decided not to join the CARDINAL cases under Rule CARDINAL § CARDINAL of the Rules of Court .

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

On DATE a group of several armed men , including the applicant , were arrested by the NORP border guards on the NORP border ( see ORG and Others , cited above , § § DATE and CARDINAL ) .

The applicant was placed in pre - trial detention by the NORP authorities . Following that measure , ORG requested the applicant ’s extradition to GPE ( see GPE and Others , cited above , § § DATE ) . The applicant was charged by the NORP authorities with terrorism and banditry with aggravating circumstances ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) ; causing bodily harm to members of the police and security forces ( LAW ) ; organising illegal armed groups and participation in such groups , with aggravating circumstances ( LAW ) ; gunrunning with aggravating circumstances ( LAW CARDINAL of LAW ) ; and illegal crossing of GPE border in DATE , with aggravating circumstances ( Article CARDINAL § CARDINAL of the Code ) . He was extradited on DATE ( see ORG and Others , cited above , § § CARDINAL , DATE , DATE and DATE ) .

It appears that upon the applicant ’s arrival in GPE , on DATE , he was assigned a lawyer to represent his interests , Mr PERSON . After DATE the applicant was defended by another lawyer , hired by his family , PERSON On DATE the applicant instructed Mr Timishev to represent him before ORG .

The applicant produced a letter dated DATE which had been sent to the ORG on DATE by PERSON in connection with the ORG case ( see ORG and Others , cited above , § CARDINAL ) . In the letter , sent in relation to a request from ORG to the ORG , Mr PERSON stated that he had acted as PERSON ORG ’s defence lawyer DATE and DATE in connection with the criminal charges brought against the latter . During that period his former client had never complained of a violation of his rights under the Convention , nor had he ever expressed to him a wish to apply to the ORG . In the absence of relevant instructions from the applicant , the lawyer could not contact the ORG on his own initiative . He had always had adequate time and facilities to prepare his client ’s defence and opportunities to meet him without prison wardens being present ( ibid . , § § CARDINAL et seq . ) .

The applicant alleged that PERSON PERSON had taken no steps to defend him . In any event , since he did not speak LANGUAGE , the lawyer would have been unable to hold discussions with him . He had not refused to accept Mr ORG services ; nor had he lodged any complaints against the actions of Mr PERSON with the domestic courts or any other authorities .

On DATE the preliminary investigation was closed . The applicant was committed for trial before ORG of GPE ( “ ORG of Chechnya ” ) . On DATE , citing the “ lack of judges of the court available to examine this category of case ” , the President of that court decided to refer the case to ORG of GPE so that the latter could designate another competent court .

On DATE the Vice - President of ORG of GPE decided to refer the case to ORG .

When he was brought before ORG , the applicant requested that his case be transferred to ORG LAW of LAW ( “ ORG ” ) . He insisted that , under the ORG , his case fell within the territorial jurisdiction of that court .

By a decision of DATE a single judge of ORG rejected the request on the ground that LAW ORG prohibited jurisdiction disputes between courts . As the case had been referred to ORG by ORG of GPE following a decision to transfer jurisdiction , the applicant ’s request could not be granted .

The applicant lodged an application for supervisory review with ORG of GPE . On DATE a judge of that court replied to the applicant , pointing out that decisions of the President and ORG of ORG of GPE were not amenable to appeal and that , accordingly , his complaint concerning the transfer of jurisdiction had been rejected without being examined on the merits .

According to the judge in question , when the preliminary investigation was closed on DATE the applicant had requested a jury trial before ORG see LAW ( b ) of the ORG ) . As assize courts could not be introduced in GPE until DATE ( as provided by the federal PERSON of DATE ) , the fact that the applicant ’s case had been referred to ORG of GPE with a view to transferring jurisdiction was not contrary to LAW ORG . The judge maintained that since the applicant and his representative had been informed of the decision of DATE to refer the case to ORG for examination , there had been no violation of the applicant ’s rights .

After the communication of the case to the NORP authorities , the parties informed the ORG that on DATE the applicant and his representative had stated that he did not want to be tried by jury . Accordingly , the case was to be heard by a single judge . Following several decisions to adjourn the hearing , on CARDINAL DATE ORG granted the applicant ’s request and decided to refer the question of territorial jurisdiction to ORG .

On DATE ORG ruled that the case was to be heard by ORG , in view of the applicant ’s withdrawal of his request to be tried by jury .

On DATE ORG found the applicant guilty of banditry , illegal handling of firearms , assault on police or military officers and illegal crossing of the state border . The applicant was given a custodial sentence of DATE , to be served in a strict - regime correctional facility . On DATE the applicant appealed against the conviction , apparently raising a number of procedural irregularities and questioning the interpretation of certain facts by the trial court . He did not submit a copy of his appeal .

On DATE ORG upheld the conviction .

Alleging that while being transferred from the GPE to ORG on DATE his client had been ill - treated by the guards escorting him , Mr PERSON applied to the PERSON district prosecutor ’s office to have the perpetrators placed under investigation .

The prosecutor of the GPE district of GPE investigated the complaint . The prosecutor questioned the applicant , several guards who had been on duty on DATE and the GPE officers who had dealt with the applicant ’s reception after he had been delivered into their custody after the court hearing . The prosecutor also inspected the journal of medical complaints kept in the GPE . In his statement given to the prosecutor on DATE the applicant stated that the guards had pushed him when he was climbing into the car and then slapped him on the back CARDINAL times . They had also pushed him in the back on arrival at the court building , forcing him to walk faster .

By a decision of DATE , the application was rejected on the ground that no confirmation of the applicant ’s allegations had been established and that the latter had not requested any medical assistance in relation to the incident . The applicant did not appeal against that decision .

In addition , an internal inquiry was carried out by ORG of the ORG . In those proceedings the guards in question were identified and questioned . They denied ill - treating the applicant . No complaints from or injuries to the applicant had been registered . ORG concluded that the complaint was unsubstantiated .

Since DATE matters relating to criminal procedure have been governed by LAW ORG ) of GPE ( Law no . CARDINAL of DATE ) .

LAW ORG sets out the composition of trial courts . Part CARDINAL ( b ) of that LAW provides that , upon an application by the accused , the trial of serious crimes can be conducted by a bench composed of one federal judge and CARDINAL jurors .

Articles CARDINAL , DATE and Article CARDINAL of the ORG lay down rules of territorial jurisdiction . They stipulate that if , inter alia , upon a successful application of a party to the proceedings , a decision has been taken to transfer the case to another court , that decision is final and binding on the court to which the case has been transferred .

The federal PERSON of DATE amended the order of entry into force of the provisions of the ORG . In particular , in so far as it concerned the introduction of jury trial , the PERSON provided that LAW part CARDINAL ( b ) of the ORG would come into force in the PERSON region as of DATE and in GPE as of DATE .


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

In DATE the applicant ’s husband entered NORP territory , where he unsuccessfully lodged an asylum request . Following her husband ’s departure , the applicant had been visited several times by NORP security officers who interrogated her about her husband ’s whereabouts . In DATE , NORP soldiers took her to a military station and raped her . This became known to the applicant ’s family and to the whole village . Following this incident , the applicant suffered a post - traumatic stress disorder ( PTSD , posttraumatische PERSON ) and considered suicide .

On DATE the applicant , together with her CARDINAL children , born in DATE and DATE , travelled by plane from GPE to GPE in GPE . She had been assisted by her father and other relatives , who had helped her to obtain false passports .

On DATE the applicant lodged an asylum request with ORG ( ORG für die ORG ) . She alleged that she had been persecuted because of her husband ’s activities in support of the NORP separatist movement . She further submitted that men from her village had urged her father to kill her in order to restore the honour of her family .

Later on the applicant submitted a medical report from her attending physician PERSON dated DATE , who drew the following conclusions :

“ According to our ... examinations , PERSON suffers from symptoms of anguish and a depressive disorder with dissociative symptoms and somatic disorders based on a severe post - traumatic stress disorder following suppression , abuse , threats and rape in GPE .

In order to carry out psychotherapy , it is necessary to provide a stable environment , because the treatment of traumas necessitates security and stability . PERSON is in need of both psychological and psychotherapeutic treatment . An antidepressant medication ( Doxepin QUANTITY mg ) has been started . The psychotherapy will last approximately DATE . A continuing treatment with supportive conversations is necessary in order to stabilise her mental condition and to avoid an aggravation .

In case of lack or interruption of treatment there is the risk of an aggravation of the illness , a decompensation of the condition , or suicide .

An escalation of her situation with respect to her right to stay would very probably lead to an aggraviation of PERSON clinical symptoms and thus to a mental decompensation and suicidal tendencies ( PERSON aufenthaltsrechtlichen FAC aktuellen Situation ist eine weitere Verschärfung der klinischen PERSON und damit eine psychische GPE suizidalen PERSON als extrem wahrscheinlich einzuschätzen ) .

In case of an expulsion to GPE , it has to be assumed that she could carry out her suicide thoughts and the expulsion to GPE has to be regarded as a re - traumatisation . ”

In DATE the applicant was temporarily hospitalised in a psychiatric clinic .

On DATE the applicant submitted further medical attestations according to which her situation had aggravated .

On DATE ORG rejected the applicant ’s asylum request , ordered the applicant to leave the NORP territory within DATE and announced expulsion in case of non - compliance . They found that the applicant had failed to establish that her rape had been politically motivated . According to ORG , there was no concrete risk that the applicant would , once again , be abused on her return to GPE . With respect to the alleged risk to be killed by family members in order to restore the family ’s honour , the ORG noted that ORG prosecuted so - called “ crimes of honour ” and that there existed the possibility to obtain protection in women ’s refuges . Furthermore , the ORG did not attach much credence to the applicant ’s submissions relating to the risk of persecution by her family .

Referring to a report by ORG dated DATE and to a further report dated DATE , ORG further found that the necessary medical treatment for the applicant ’s illness was available in all major psychiatric clinics , such as the university clinics in GPE and GPE and the public hospital in GPE . According to ORG , these clinics applied internationally approved diagnostic standards and offered the same therapeutic concepts which were common in LOC . In case of need , it was possible to obtain free medical treatment with the so called “ green card ” . This did also apply in case of a possible retraumatisation .

ORG further found that it was not competent to examine if the applicant ’s deportation as such could lead to suicide attempts , as this primarily concerned the question of the feasibility of deportation .

The applicant , represented by counsel , lodged a motion with ORG ( Verwaltungsgericht ) . She argued , inter alia , that the necessary medical treatment was not available in practice . In support of her allegations , she submitted a report by ORG in GPE on the medical care provided for persons with mental illnesses dated DATE . This report noted , inter alia , that care for mentally ill patients was provided for in the major cities and provincial centres of GPE . On the other hand , there was a lack of possibilities of long - term treatments for adult patients .

The last paragraph of the report reads as follows :

“ ORG there are CARDINAL hospitals in CARDINAL towns which are entitled to issue medical attestation for handicapped and/or mentally ill persons ... It follows that there is not in every province the possibility to obtain specialist medical treatment .

CARDINAL of the most serious problems is the almost complete hopelessness ( “ fast völlige Ausweglosigkeit ” ) of certain groups of patients – in particular adults – to obtain adequate treatment : this concerns traumatised persons , raped women , persons suffering from anguish traumas , highly suicidal persons , to name but a few . The local ORG confirmed that while the purely medical care of handicapped or mentally ill people could be provided , it was generally ( in der PERSON ) impossible to offer continuing therapy for lack of professional and financial resources . It is not possible to continue therapies for patients returning from GPE or the GPE , as follows already from the different therapeutic concepts of these countries . ”

The applicant further alleged that her return to GPE would , with a high probability , lead to her re - traumatisation , which would eventually endanger her life . She submitted a further medical report by PERSON dated DATE , which reads as follows :

“ I am treating PERSON since DATE . PERSON is a severely traumatised person , who suffers from typical disturbances caused by a posttraumatic stress disorder ( ORG CARDINAL ORG ) with extreme nervousness and attacks of fear and panic .

PERSON is regularly treated with supportive conversations which take place at ORG intervals . Additionally , she is treated with antidepressant medication , currently with QUANTITY GPE per day . The patient ’s state of health has further deteriorated . She increasingly complains about insomnia and gives credible accounts of suicidal thoughts . She reports about the escalation of her situation with respect to her right to stay . This scares her additionally . She suffers from serious losses of self - esteem .

On the basis of DATE ’s conversation , a further aggravation of her clinical symptoms and thus a mental decompensation with suicidal behaviour has to be regarded as being extremely likely . ”

On DATE ORG rejected the applicant ’s motion . That court found that the applicant had neither a right to asylum as guaranteed by LAW , nor was she protected from expulsion as a political refugee pursuant to LAW , see relevant domestic law below ) . ORG accepted the applicant ’s submissions that she had been raped and subsequently suffered from a post - traumatic disorder . It further assumed that the applicant ’s persecution had been politically motivated . While the applicant had failed to establish that she herself or her husband had been persecuted as suspects of supporting the NORP separatist movement , the ORG accepted that the applicant ’s rape may have been related to her NORP origins .

However , the applicant did not risk further persecution , as she would be safe if she travelled to the Western part of GPE ( inländische ORG ) . As neither the applicant nor her husband could be regarded as being suspected of separatist activities , there was no indication that the security forces would persecute her there . ORG further found that the applicant had not established that she risked falling victim to a “ crime of honour ” in the NORP part of GPE , taking into account that her father had helped her to escape to GPE .

ORG further found that there was no impediment to the expulsion under LAW ( CARDINAL ) of LAW for lack of a serious and concrete risk for her life or physical integrity . According to consistent reports ( nach ständiger ORG ) , there was a possibility to treat mental illnesses in GPE . Referring to a judgment of ORG and considering all material in its possession , ORG followed this assessment . It found , in particular , that the applicant was not restricted to seek medical treatment in her home region , but could also be expected to expand her search into her further environment and into LOC . The applicant had not established that her illness could not be treated in LOC .

ORG finally considered that the possibility of a retraumatisation could in principle constitute an impediment to expulsion . According to ORG , however , it could not be deduced from the medical attestations submitted by the applicant that this applied to the applicant for the time being . It found that in the report dated DATE Dr PERSON indicated that the applicant ’s deportation as such might aggravate her medical condition . This might lead to an impediment to deportation relating to NORP territory ( inlandsbezogenes PERSON ) , but not to a danger in the receiving country ( zielstaatsbezogenes PERSON ) . In his more recent medical attestation dated DATE , PERSON more generally stated that a further aggravation of her clinical symptoms and thus a mental decompensation with suicidal behaviour had to be regarded as being extremely likely . This indicated that the aggravation of the applicant ’s illness was independent from her return to GPE . ORG finally found that the other medical attestations submitted by the applicant did not lead to other conclusions .

The question if the applicant ’s deportation as such would cause a danger to her health had to be examined separately by the local ORG Ausländerbehörde ) . ORG further noted that the applicant could seek ORG and ORG assistance in finding the necessary health facilities .

On DATE the applicant lodged a request to be granted leave to appeal . She alleged , in particular , that ORG had failed to consider the report of ORG of DATE which , according to the applicant , raised serious doubts if her illness could be treated in GPE . She further complained that ORG had failed to consider her submissions with respect to the risk of retraumatisation .

On DATE the GPE Court of Appeal ( Oberverwaltungsgericht ) refused the applicant ’s request . It found , in particular , that ORG had duly examined the possibility to obtain medical treatment in GPE . It noted that ORG had found that the applicant was not restricted to her home area , but could be expected to search medical care in LOC . Under these circumstances , ORG did not have to refer explicitly to the NORP Consulate ’s report . ORG further found that ORG had duly considered the expert reports on the applicant ’s state of health .

On DATE the applicant , represented by counsel , lodged a constitutional complaint . She alleged that the administrative courts had violated her right to a fair hearing and her right to asylum as guaranteed by LAW . She complained , in particular , that ORG had failed to duly consider the fact that the applicant , according to the medical report dated DATE , risked re - traumatisation on her return to GPE . She further complained that ORG had failed to hear expert opinion on the risk of re - traumatisation .

On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant ’s complaint .

The applicant , her husband and children subsequently lodged a request with the North Rhine - Westphalia Commission for ORG ) . No decision has yet been given . These proceedings do not have a suspensive effect ; the ORG ’s recommendations are not binding on the domestic authorities .

By order of CARDINAL DATE ORG ( Amtsgericht ) placed the applicant into a psychiatric hospital . ORG found a strong indication that the applicant suffered from a psychotic disorder which necessitated treatment and which could pose a danger to her life or integrity . According to a medical report of DATE , she had recently been suicidal . ORG further ordered the preparation of an expert opinion on the applicant ’s state of health .

Article CARDINAL ) of the NORP Basic Law ( Grundgesetz ) provides that persons persecuted on political grounds enjoy the right of asylum .

Section CARDINAL of LAW – as in force at the relevant time – prohibits the deportation of aliens to a state where they would face political persecution .

Section CARDINAL prohibits deportation into a state where the alien faces a serious risk of being subjected to torture . Section CARDINAL(CARDINAL ) of LAW further prohibits any expulsion which would be contrary to the provisions of the LAW .

If the preconditions for the application of section CARDINAL(CARDINAL ) are not met , protection may be granted under section CARDINAL(CARDINAL ) of LAW , which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life , personal integrity or liberty of an alien .

According to the case - law of ORG ) ORG , during asylum proceedings , only examines if the alien would be in danger in the receiving country ( zielstaatsbezogene Abschiebungshindernisse ) . Other impediments to deportation , which could arise on NORP territory ( inlandsbezogene NORP ) have to be examined in separate proceedings by the local ORG .


Preliminary objection allowed (non-exhaustion of domestic remedies);Violation of Art. 8;No separate issue under Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

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

The applicant was married to PERSON , a NORP national . They lived in GPE . They have a son , PERSON , who was born in DATE . PERSON also had another child , PERSON , who was adopted by the applicant in DATE .

NORP In DATE the applicant left GPE and in DATE the applicant and PERSON divorced .

On DATE PERSON wrote a letter to the Head of ORG requesting that the applicant be banned from entering GPE . PERSON complained , in particular , that in DATE the applicant had come to GPE , GPE , where their son PERSON had been on holidays with a nurse , and had threatened to take ORG away . She further stated that in his previous marriage the applicant had inflicted grievous bodily harm on his wife .

On DATE ORG sent a request to ORG to ban the applicant from entering GPE .

On DATE ORG informed the ORG that Mr. PERSON was prohibited from entering GPE for DATE . The applicant learned about this decision shortly afterwards .

In DATE the applicant was informed by PERSON , his lawyer in another civil case , that his former wife had lodged a claim with the Pechersky District Court of GPE seeking to deprive the applicant of his parental rights with respect to his natural son PERSON applicant could not be present in the court due to the prohibition on entering GPE , but was represented before the court by his lawyer , Mr T.

On DATE the first - instance court found for PERSON and decided to deprive the applicant of his parental rights . The court based its decision on the fact that the applicant did not fulfil his parental duties properly , in particular he did not participate in bringing up the child , did not contact him and had lost any interest towards him . The court also took into consideration that the applicant had not complained to the local tutelage and supervision board that PERSON refused him access to the child . The court disregarded the applicant 's argument about the impossibility of participating in the up - bringing of the child due to the prohibition on entering the country , stating that the applicant had not met his son since DATE .

According to the Government , the domestic courts had been aware that the applicant had deliberately indicated false data on his place and date of birth in official documents and that he had been previously criminally prosecuted and had never been formally acquitted .

NORP This decision was appealed against by the applicant 's representative to ORG . In the appeal it was mentioned that the conclusion of the court of first instance that the applicant did not want to meet his son was incorrect , since in her request of DATE to the police PERSON had clearly mentioned his attempt to see their son in DATE . It was also mentioned that the applicant had tried to lodge a request with the tutelage and supervision board of ORG , but had been informed that his presence was required in order for the request to be examined . The representative complained that the court of first instance heard only witnesses of the opposing party , who had been employed by PERSON He noted that the court had not sought to receive first - hand information from the applicant himself through the international legal assistance instruments .

On DATE , the court of appeal upheld the decision of the first instance court . Having repeated the findings of the first instance court , the court of appeal noted that the applicant 's objections had not been supported by any evidence and the arguments of the opposite side had been confirmed by testimonies of CARDINAL nurses of the child . It further decided that the arguments of the applicant 's appeal did not dispose of the findings of the first - instance court and did not influence the correctness of those findings .

The applicant appealed in cassation . In his appeal he reiterated his previous arguments and complained that the court of appeal refused to call a witness on his behalf .

On DATE the panel of CARDINAL judges of ORG rejected the applicant 's request for leave to appeal in cassation , having found that the lower courts did not violate any substantive or procedural law .

NORP By letter of DATE , ORG of GPE informed the applicant 's lawyer that the service abroad of judicial documents could be conducted under the relevant international instruments . In relations between them , GPE and GPE used LAW , DATE .

On DATE the ORG of GPE examined the applicant 's request to correct the date of his birth in the civil state register . The court decided for the applicant .

On DATE the same court quashed its previous decision of CARDINAL DATE in the light of newly discovered circumstances and re - opened the proceedings .

On DATE the court rejected the applicant 's request concerning mistake in his date of birth in the register . On DATE and DATE respectively ORG and ORG upheld the decision of the first instance court .

On DATE the ORG of GPE considered a claim by the applicant , in which he requested to invalidate the decision on adoption of PERSON , the elder son of PERSON , and rejected it as unsubstantiated , having found that at the time of adoption the applicant and PERSON had genuine and good family relations .

On DATE , the same court invalidated the above - mentioned decision on adoption of PERSON by the applicant .

On DATE the ORG rejected the applicant 's complaint against the decision about prohibition of his entry in GPE .

On DATE the ORG upheld the decision of the first instance court .

On DATE the applicant appealed in cassation . The proceedings are still pending .

The relevant extracts of the LAW of GPE read as follows :

Article CARDINAL

“ Foreigners and stateless persons who are in GPE on legal grounds enjoy the same rights and freedoms and also bear the same duties as citizens of GPE , with the exceptions established by the LAW , laws or international treaties of GPE ... ”

Article CARDINAL

“ No one shall be subject to interference in his or her personal and family life , except in cases envisaged by LAW ... ”

Article CARDINAL

“ ... The family , childhood , motherhood and fatherhood are under the protection of the ORG . ”

Article CARDINAL of the Code provided that civil proceedings should be conducted on the grounds of equality of persons regardless , in particular , of their place of residence .

Article CARDINAL of the Code provided that the claimant and the defendant had equal procedural rights .

Article CARDINAL provided that foreign citizens had equal procedural rights with NORP citizens in civil proceedings . The NORP legislation could foresee restrictions on procedural rights of citizens of other countries , where the procedural rights of NORP citizens were restricted .

Article CARDINAL of the Code provided that parents could be deprived of their parental rights if it was established that they neglected their duties of bringing up their children , or abused their parental rights , treated the children cruelly , influenced the children harmfully by their immoral , antisocial behaviour , as well as when the parents were chronic alcoholics or drug addicts . The deprivation of parental rights did not preclude the possibility for a person concerned to seek access to the child through the courts .

Article CARDINAL established the circle of persons entitled to seek deprivation of parental rights before the courts . It also envisaged participation of guardianship authorities and the prosecutor in the hearing .

This Code replaced LAW and contains similar provisions as to deprivation of parental rights .

Article CARDINAL provides that foreigners can marry and divorce NORP citizens under NORP law . They have equal rights in family relations with NORP citizens .

Article CARDINAL provides that foreigners are entitled to seek protection of their individual , property and other rights in the courts and other state bodies . In judicial proceedings foreigners have equal procedural rights with NORP citizens .

Article CARDINAL stipulates that entry to GPE can be prohibited to a foreigner in the interests of national security and public order , if public health , the protection of the rights and legitimate interests of NORP citizens and residents require so , if the foreigner violated NORP legislation during his previous stay in GPE , etc .


Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

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

In DATE the GPE regional prosecutor instituted criminal proceedings against the applicant on suspicion of manslaughter of his wife . On DATE the applicant was examined by a medical panel composed of CARDINAL psychiatrists , who found that , on health grounds , he could not be held criminally responsible . The panel further concluded that the applicant posed a threat to public order . On DATE the ORG district prosecutor , having regard to the medical opinion , decided to discontinue the criminal proceedings against the applicant . On CARDINAL DATE the ORG district prosecutor requested ORG to order the applicant ’s committal to a psychiatric institution .

On DATE ORG committed the applicant to a mental hospital . The court , taking into consideration the submission of the prosecutor that the applicant had killed his wife and the expert medical opinion of DATE , concluded that the applicant posed a threat to public order . On DATE ORG upheld this decision . On DATE the applicant was placed in ORG .

On DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE and CARDINAL DATE the ORG gave decisions concerning the applicant ’s continued detention . The court had regard to the applicant ’s medical file , including opinions of psychiatrists from ORG , which indicated that in view of the applicant ’s condition , which remained unchanged , his continued detention was necessary as he still presented a threat to public order .

On DATE the applicant ’s officially appointed lawyer requested the latter ’s release from the psychiatric hospital . On CARDINAL DATE ORG again refused to order the applicant ’s release , finding that it would entail a threat to public order .

NORP In a further medical opinion of DATE the ORG psychiatrists stated that the applicant ’s condition required his continued detention and in its subsequent decision ORG again refused to order his release .

On DATE the Minister of ORG refused leave for an extraordinary appeal against the decision of CARDINAL DATE concerning the applicant ’s committal to a psychiatric institution .

On DATE the court , having considered the opinion of psychiatrists , again refused to order the applicant ’s release .

On DATE the applicant ’s lawyer lodged a further request for the applicant ’s release with ORG . He also insisted that psychiatrists from ORG examine the applicant as he was convinced that it was only from this institution that an unbiased opinion could be obtained . By letters of DATE and DATE , the court ordered ORG to submit an up - to - date medical opinion on the applicant ’s condition .

In their opinion of DATE , ORG psychiatrists stated that the applicant ’s condition required his continued detention and suggested that in view of his repeated requests for a medical examination by psychiatrists from another institution it would be advisable to order such an examination . By a decision of DATE , the court ordered that the applicant ’s condition should be assessed by psychiatrists from ORG .

On DATE the court found that the applicant could undergo the necessary medical examination in ORG of FAC . On DATE it fixed the date of the applicant ’s admission to the Centre at DATE . The applicant was brought to ORG that date , but was not admitted since certain necessary documents had not been submitted to ORG . ORG informed the court that the applicant could only be admitted on the strength of an order for his detention on remand and that persons detained at FAC were subject to the legal provisions governing detention on remand .

In a letter of CARDINAL DATE , the applicant complained to the court that he had not been examined by ORG . He contended that any opinion prepared by psychiatrists of ORG would be biased and threatened to go on hunger strike if he was brought to ORG a medical examination .

On DATE the applicant requested the reopening of the criminal proceedings .

On DATE ORG of ORG informed ORG that the exact date of the applicant ’s out - patient examination could be fixed only after DATE . By a letter of CARDINAL DATE , ORG forwarded that information to the applicant .

On DATE and DATE ORG informed the court that the applicant could be admitted to the University hospital in DATE or DATE , after an analysis of his medical file had been completed .

By a letter of DATE , the GPE regional prosecutor informed the applicant that his request of DATE to have the criminal proceedings reopened would not be considered .

On DATE the applicant ’s medical file was sent to ORG . On DATE the applicant requested the court to order his examination without further delay . On DATE , the University , in reply to the court ’s enquiry , informed it that the applicant would be admitted for an out - patient examination from DATE to CARDINAL DATE . On DATE the court informed the applicant that his file had been transmitted to ORG .

DATE the applicant underwent an examination at ORG .

On DATE ORG informed the applicant that his file was still with ORG of the University and that the expert medical report was not yet ready . On DATE , the University informed the court that the opinion would be ready by DATE .

On DATE the applicant requested access to his medical file . On DATE the court informed him that it was still at ORG .

On DATE , in reply to the court ’s enquiry , the University informed ORG that it could not return the applicant ’s medical file to the court , as the medical opinion had not been prepared . On DATE , the applicant again requested to be granted access to his medical file . On DATE ORG informed him that his file was still being examined by the specialists of ORG , who were preparing an opinion .

In their opinion of DATE , the psychiatrists from ORG stated that the applicant ’s condition required continued detention and that the grounds on which his committal to a psychiatric institution had been ordered had not ceased to exist . This opinion was submitted to ORG on DATE .

On DATE the court , having considered the medical opinion of CARDINAL DATE , decided that the applicant ’s detention should be maintained .

Subsequently , by decisions of CARDINAL DATE and DATE , ORG ordered that , in the light of medical opinions of DATE and DATE respectively , the applicant should remain in detention . On DATE , the applicant attempted to commit suicide at ORG . On DATE , ORG ordered the applicant ’s release .

Conditions for the detention of persons of unsound mind who are not criminally responsible were laid down in LAW , as it stood at the material time :

Article CARDINAL

“ If it has been established that a person has committed an offence in a state of mental disorder [ excluding his criminal responsibility ] , and his remaining at liberty entails a serious danger to public order , the court shall commit him to a mental hospital or another appropriate institution . ”

“ In cases provided for in LAW is not determined in the decision of committal to the psychiatric institution ; the court shall order release if the detention ceases to be necessary . ”

According to the case - law of ORG , a threat to public order is to be determined on the basis of the situation obtaining at the time when the offender ’s detention in the psychiatric institution is imposed . The assessment of the existence and the degree of such threat should be made in the light of an expert medical opinion . For a decision ordering detention in a psychiatric hospital to be given , it is not necessary that the expert medical opinion should state expressly that public order would be threatened if the offender were to remain at liberty . It suffices that such a conclusion may be drawn from the expert medical opinion taken as a whole ( ORG , ORG i DATE , item CARDINAL ) .

A threat to public order is considered serious if an offender ’s remaining at liberty gives rise to a risk that he might commit an unlawful act ( ORG , ORG i DATE , item CARDINAL ) .

Article CARDINAL § CARDINAL read together with LAW , as applicable at the relevant time , provided that a court could impose a fine on an expert who , without reasonable cause , consistently failed to comply with his or her obligation to submit a report to the court .

Article CARDINAL of the Enforcement of Sentences Code , as applicable at the relevant time , read :

“ CARDINAL . The director of a medical institution is obliged to keep the court informed of the detainee ’s health and of the progress of the treatment .

NORP The court , at intervals of not longer than DATE , shall decide , on the basis of a medical opinion , on the necessity to maintain further security measures . ”

According to LAW an offender , in the proceedings before a court supervising execution of criminal judgments , was entitled to submit requests and to lodge appeals against the court ’s decisions if the law expressly provided for such appeals .