Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant , a NORP citizen of NORP origin , was born in DATE and lives in GPE .

The facts of the case , particularly concerning events which took place DATE , are disputed by the parties .

The facts as presented by the applicant are set out in Section B below ( paragraphs CARDINAL ) . The Government ’s submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . GPE evidence submitted by the Government and the applicant are summarised in Sections D ( paragraphs CARDINAL ) and E ( paragraphs CARDINAL ) respectively .

On DATE at TIME , QUANTITY police officers from ORG came to the applicant ’s house in ORG and questioned the applicant about her son ORG ’s whereabouts . ORG had previously been taken into police custody on CARDINAL DATE , placed in detention on remand on DATE and released on DATE . As he was afraid to find himself in the hands of the police once again , he was hiding at his relative PERSON house in GPE . Aware of her son ’s fears , the applicant told the police officers that ORG had gone to GPE .

The police officers also questioned the applicant ’s CARDINAL other sons , ORG and ORG , who , like the applicant , stated that their brother PERSON had gone to GPE . The officers conducted a search of the house and took a certain amount of NORP marks . CARDINAL of the police officers left , taking ORG and ORG with them . The remaining QUANTITY police officers stayed in the applicant ’s house and continued questioning the applicant and her daughter , PERSON , until TIME .

In TIME the applicant ’s husband GPE returned home . The police stayed for DATE and DATE , changing shifts at TIME . After DATE , the police forced the applicant ’s husband to sign a document .

The police officers took ORG and ORG to ORG where they were questioned about GPE for TIME . Thereafter , ORG and ORG were taken to ORG to be examined by a doctor . From the hospital they were taken back to ORG and again interrogated about PERSON .

NORP The police asked PERSON about his relative PERSON . ORG informed them that he knew PERSON , who was both a childhood friend of ORG ’s and a relative , and gave the police his address . The police officers then went to ORG house , taking ORG with them .

On TIME DATE , ORG mother saw a number of police vehicles in front of her building and warned ORG . ORG and GPE tried to run away but were caught by police officers while they were going up onto the roof . As the police were taking ORG , GPE and ORG brother PERSON downstairs , ORG made another attempt at escape . PERSON and PERSON heard one of the police officers say that he was going to kill ORG , but the other officers said that they needed ORG for interrogation . ORG was caught in the doorway and made to lie face down . He was handcuffed and a gun was held to his head . According to ORG , ORG was beaten up ; he saw that ORG ’s head was bleeding and heard him screaming .

The police officers put ORG in CARDINAL vehicle and ORG in another . They were then taken to ORG . After TIME , they were taken to ORG for a medical check . They were then put back into the vehicles . Yılmaz and GPE were in the back seat . PERSON heard the CARDINAL policemen sitting in the front say , “ ORG told the doctors at the hospital that he had been tortured and that he was going to be killed . Let him come to the ‘ camp’ . We ’ll show him that death will not be that easy . ” Yılmaz , GPE and ORG entered ORG together . ORG was also brought back to ORG . Later , he realised that ORG had also been brought there . According to ORG , as soon as the police officers brought ORG to ORG they began torturing him . PERSON heard ORG screaming and saying that “ his arm was going to break off and that he could neither clap his hands nor was he able to walk ” . The rest of the time ORG was constantly screaming and saying that he was innocent .

Barış and PERSON were put into different cells . PERSON was in cell no . CARDINAL , from where he could hear ORG screaming . PERSON was later moved into cell no . CARDINAL , from where he could hear most of the conversations between the police officers and ORG . He heard the police officers threaten ORG by telling him that death would not be easy . ORG was saying that he was innocent , and that he could neither walk nor clap his hands . The torture lasted TIME . PERSON , looking through the grill in the door , saw that PERSON was being taken away by the policemen , who were holding him from his arms and dragging him along the floor .

On DATE PERSON was taken to the interrogation room . He was asked if PERSON was a member of the “ organisation ” ( that is the ORG - ORG ) . He was further questioned about PERSON ’s relationship with ORG and the reason why PERSON ’s family let ORG stay in their house .

On DATE PERSON signed a statement of CARDINAL pages , which the police had drawn up . He did not know what was recorded in the statement . He was then taken to ORG and was forced to tell the doctor that he had not been tortured . He was released after the medical examination . ORG was also released on DATE , following a medical examination .

When İrfan and PERSON returned home they told the applicant that ORG was in custody and that he was being very badly tortured . The applicant went to the ORG branch of ORG for help . In the meantime , the applicant had already submitted a petition to the Prosecutor at ORG ( hereinafter “ the ORG ” ) on DATE and asked for information about her son . On DATE the Prosecutor wrote on the same petition that the applicant ’s son had been taken into detention at ORG .

On DATE at TIME , police came to the applicant ’s house and then went to ORG house . They told the neighbours that PERSON was in a coma and that the applicant should go and pick up the body of GPE .

On TIME of CARDINAL DATE the neighbours informed the applicant and she went to the hospital . The police first denied any knowledge about the matter . Her brother - in - law PERSON then arrived at the hospital and told her that the police had informed him that ORG ’s body was at the morgue . The police at the hospital continued to deny that they had ORG ’s body . TIME they acknowledged that ORG ’s body was indeed in the morgue . They refused the applicant permission to see her son . The Prosecutor at the hospital told PERSON that ORG had thrown himself from a window on the seventh floor and asked PERSON whether he wanted to file a complaint against anyone . PERSON told the Prosecutor that there was no use in filing a complaint as ORG had been killed by the police who then tried to cover up his death by saying that he had thrown himself from a window .

ORG ’s burial certificate stated that he had died on DATE . The necessary forensic and medical examination of the body and the autopsy were performed on DATE . When the applicant requested a copy of the autopsy report , she was told that all the documents had been sent to GPE . On DATE ORG was buried .

On DATE PERSON was arrested in ORG together with PERSON , PERSON , PERSON , PERSON , PERSON and PERSON on suspicion of having collaborated with the ORG .

When the policemen entered ORG ’s flat to arrest ORG , he tried to escape but lost his balance and fell , hitting a wall in the process . He was arrested at the entrance to the building . A false identity card was found on him . This version of events was confirmed by PERSON in a statement given by him to the Prosecutor at ORG on CARDINAL DATE .

NORP Immediately after his arrest , ORG was taken to ORG at TIME to have his wounds treated . According to the medical report drawn up by PERSON , the duty doctor at the hospital , ORG had suffered CARDINAL wounds , one above the right eye and another on the big toe of his right foot , which were not serious .

Later in the day PERSON was again taken to ORG for treatment of a bleeding wound in the head , a QUANTITY . long laceration in the occipital area . According to Dr PERSON , who stitched the wound , ORG did not require hospitalisation but he was prescribed medication . Both PERSON and PERSON were subsequently questioned by the Prosecutor at ORG in relation to the report prepared by PERSON in which the injury to the head had not been recorded . PERSON stated that ORG had not mentioned to him any injury other than the CARDINAL which had been recorded in his report .

After having his head wound stitched , PERSON was again taken to ORG and put in a cell , without having been interrogated . According to the statement of ORG , a detainee who was in the same cell as PERSON , the police gave ORG his medication regularly . In TIME of DATE , PERSON condition deteriorated . PERSON died during the efforts to take him to hospital .

On DATE an autopsy was conducted in ORG . The autopsy report stated that PERSON death had occurred due to asphyxia . As the cause of asphyxia could not be identified , certain dissected body parts were sent to ORG in GPE for further forensic examinations to be carried out . According to the report of the chemical analysis section of ORG , which was drawn up on DATE , no toxicological evidence was detected in any of the sample tissues .

On DATE a second report was prepared by the histology laboratory , in which it was stated that no abnormalities had been detected in any of the body parts .

On DATE , a final report was issued by ORG . According to this report , the findings clearly pointed to a natural death which might have been due to PERSON previous health problems .

On DATE the Prosecutor at ORG took a decision not to prosecute as he concluded at the end of his investigation that there had been no ill - treatment or torture , and that the death had occurred due to natural causes .

On DATE ORG issued another decision not to prosecute . This decision was served on the applicant on DATE and became final on DATE as no appeal had been lodged against it .

This was a verbatim record , drawn up by PERSON , ORG at ORG , and PERSON , the director of ORG of ORG , during the autopsy which they carried out on the body of PERSON at ORG on DATE . The report stated that Dr PERSON , the last doctor to examine PERSON , was on leave and therefore could not be present during the autopsy .

The report began by stating that PERSON had lost his life at the detention facility of ORG at TIME on DATE . His body had then been transferred to the morgue at FAC .

The report described the deceased as being QUANTITY tall and weighing QUANTITY . Rigor mortis and post mortem hypostasis had set in . The Prosecutor and the doctor observed the following injuries : a QUANTITY sutured wound on the top of the head ; a QUANTITY wound over the right eyebrow ; purple bruising around the right eye ; purple bruising on the outer surface of the right hand between the thumb and the wrist ; a scabbed wound , measuring CARDINAL x QUANTITY , over the coccyx ; purple bruising on the outside of the right arm measuring QUANTITY and finally a graze , measuring QUANTITY , on the big toe of the right foot .

Other external findings noted were a slight deformation on the right side of the chest . The nailbeds , lips and ears were described as being cyanosed . There was widespread bleeding under the skin of the back . The external genitalia were normal . The epidermis was described as separating from the dermis .

The body was photographed both before and during the internal examination of the body .

The internal examination found that there was bruising and haematoma under the sutured injury . The skull was intact . There was no bleeding on either the outside or the inside of the brain membranes . The brain was described as being slightly oedematous . The sections taken of the brain and the cerebellum were normal . The bones of the skull base were not fractured .

The mouth , throat and neck structures were described as being normal . The chest deformation was noted to be structural and not due to trauma . There were several bleeding spots on the lung surfaces . The lungs were extensively oedematous and congested . The heart was described as being normal on external examination . GPE revealed a thick , narrow , mitral valve .

Stress ulcers seen in the stomach were associated with a little bleeding . The other organs in the abdomen were normal .

During the autopsy the Prosecutor and the doctor had regard to a medical report which had been drawn up at ORG on DATE . This report , which was numbered DATE , was not made available to the ORG or to the ORG . According to a summary of this report reproduced in the autopsy report , a wound measuring CARDINAL x QUANTITY featured above PERSON right eye . There was also a slight wound on the big toe of the right foot . Neither of these CARDINAL wounds was life threatening .

The Prosecutor and the doctor had regard to an arrest report drawn up at TIME on DATE in relation to the arrest of PERSON . This report was also not made available to either the ORG or to the ORG . It appears from the summary of this report , which was reproduced in the autopsy report , that PERSON and CARDINAL other men had been in a flat on the sixth floor of a block of flats . When they were running down the stairs , PERSON had fallen down , injuring his right toe and also a spot above his right eye . The Prosecutor asked PERSON whether the injuries observed during the autopsy could have been caused in the course of the sequence of events as described in the arrest report . PERSON replied that the injuries recorded in report no . DATE were consistent with the injuries described in the arrest report .

A decision was made to send the samples taken from internal organs for histology and toxicology examinations .

The doctor concluded that the death was due to asphyxiation and added that it would be possible to establish the cause of the asphyxiation after the examination of the body samples at ORG in GPE .

According to this report , the body samples taken from PERSON body during the autopsy which were subjected to a toxicological examination did not disclose any poisons .

This was a report drawn up and signed by a number of doctors . The report referred to the conclusions set out in the above mentioned autopsy and toxicology reports . In this report there was also a reference to a histology report , which had apparently been drawn up on DATE and had concluded that the examination of the samples from the heart , lungs , liver , kidneys and the spleen had revealed the presence of autolysis , but that nothing was seen in the brain or cerebellum . A decision was taken to seek the opinion of ORG .

This report was drawn up and signed by CARDINAL doctors , each a specialist in different areas of medicine . They based their opinions on the reports referred to above and on the photographs of the body which had been taken during the autopsy ( see paragraph CARDINAL above ) . The doctors also had regard to CARDINAL statements taken from ORG and Dr PERSON on DATE . It appears from the summaries of these statements , which are reproduced in the report , that ORG had been detained in the same place as PERSON and that ORG had allegedly told Mr Kutlu that he had hurt himself while trying to run away from the police during his arrest and , because of that , his right foot was swollen and he was unwell . Mr PERSON was also said to have added that PERSON condition had worsened during TIME DATE and that he had died TIME .

Dr PERSON was reported as having said in his statement of CARDINAL DATE that PERSON had been brought to him by officials on DATE and that , apart from the findings he had previously observed , he had now also observed a wound , measuring QUANTITY , on the top part of the head which did not require hospitalisation .

ORG concluded that death was due to respiratory failure related to lung oedema . The ORG commented that , apart from the wounds on the top part of the head , above the right eyebrow and the big toe of the right foot , there were no other symptoms of an assault or traumatic change , which excluded the possibility of an external trauma being the cause of death .

ORG further commented that , although there was evidence of asphyxiation , no change was observed in the neck area under the skin and there was no evidence of any compression of the chest or abdomen to indicate that death had occurred as the result of mechanical asphyxiation . There was oedema of the lungs and brain , and ulcers in the stomach with bleeding from them , indicating general anoxia and asphyxiation findings related to extreme lung oedema .

This decision was taken by ORG at ORG . PERSON , a police officer at ORG , was referred to in the decision as the defendant . The offence in question was recorded as “ death in custody on DATE ” .

The Prosecutor stated that PERSON who is a member of the terrorist organisation ” , had fallen down the stairs in an attempt to avoid arrest by police officers and injured himself . He had then been taken by police officers to ORG for treatment . The Prosecutor also referred to the medical reports above , and added that the report of CARDINAL DATE ( see paragraphs CARDINAL above ) had been submitted to ORG of ORG on DATE , “ to establish the cause of the oedema in the lungs , which had caused the respiratory failure ” .

A copy of the subsequent report of ORG of ORG ( date unknown ) was not made available to the ORG or to the ORG . However , according to the decision not to prosecute , it was stated in that medical report that there was no evidence to suggest that the oedema in the lungs had been due to a technical or traumatic reason . ORG had apparently concluded that the cause of the oedema could not be established because the body samples sent for microscopic examination had become autolysed . The Prosecutor concluded therefore that there was no evidence that the officer had committed the offence in question and he decided not to prosecute the accused .

NORP This decision , which was communicated to the applicant on DATE , became final on DATE as no objection had been lodged against it .

In her petition the applicant submitted that her CARDINAL sons , ORG and ORG , had been arrested in their home by the police on DATE . She asked the Prosecutor for information about her sons’ fate .

On DATE the Prosecutor wrote on the applicant ’s petition that “ [ the applicant ’s sons ] were taken into detention at the ORG ” .

NORP This report was prepared on behalf of the applicant by Dr PERSON , a Reader in Forensic Pathology at ORG and consultant pathologist to ORG in GPE .

NORP The report recounted the findings of the autopsy and of the other reports referred to above . PERSON observed , inter alia , the following shortcomings :

( a ) no organ weights , in particular the weight of the lungs , were recorded . Furthermore , no description of the presence or absence of petechiae was made , despite the diagnosis of asphyxiation ;

( b ) the QUANTITY laceration described by Dr PERSON is not described in any of the autopsy reports , even though a QUANTITY wound , or a scar from such wound , should have been noticed . It seems unlikely that a QUANTITY wound seen at autopsy could have been mistaken for a QUANTITY wound ; in any event they were described in different positions ;

( c ) a QUANTITY wound is a large wound to be caused by DATE ; this wound appears to have occurred whilst in custody , and not in DATE during the arrest ;

( d ) there is CARDINAL area of the original autopsy report which does not appear to have been commented on , and that is the presence of diffuse bleeding under the skin of the back . Diffuse bleeding strongly suggests that blows have been delivered to the back ;

( e ) NORP the post mortem findings in this case with lung oedema and congestion , some brain oedema and stress ulcers , and the absence of any natural cause of death , raise strong concerns that death has been caused by mechanical asphyxiation . In positional asphyxia , the pinning of the body and restraint may prevent proper breathing . This could , for example , be caused by the person being laid on the floor and somebody compressing his back . Bleeding into the back would support this scenario .

The applicant submitted to the ORG and to the ORG a number of statements taken by lawyers at the ORG branch of ORG from witnesses who had either witnessed the arrest of the applicant ’s son or who had been detained with the applicant ’s son . These statements formed the basis of the applicant ’s submissions above ( see paragraphs CARDINAL ) .

A full description of the relevant domestic law and practice , as well as relevant international reports , may be found in PERSON v. GPE ( [ ORG ] , no . DATE , § § DATE , ORG CARDINAL-VII ) .


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

On an unspecified date , the applicant was charged with having raped CARDINAL drug - addicted street prostitutes , PERSON , PERSON and PERSON , and an unrelated count of forgery . He was summoned to appear on DATE before ORG ( arrondissementsrechtbank ) in order to stand trial on these charges . In the course of the adversarial proceedings before ORG , the applicant admitted that he had had sexual intercourse with the CARDINAL women , but denied having raped them . The QUANTITY women were not heard before ORG .

In its judgment of DATE , ORG convicted the applicant of having raped PERSON , PERSON and PERSON and of forgery , and sentenced him to DATE imprisonment . In addition , having found that the applicant was suffering from a personality disorder and was dangerous , it further ordered his confinement in a custodial clinic ( terbeschikkingstelling met bevel tot verpleging van overheidswege ) . It also ordered the applicant to pay PERSON , who had joined the criminal proceedings as a civil injured party ( benadeelde partij ) and had filed a claim for compensation of damage incurred , an amount of MONEY ( “ NLG ” ; i.e. DATE ) .

The applicant filed an appeal with ORG ( gerechtshof ) .

On DATE , ORG commenced its examination of the applicant 's appeal and considered the request by the defence to summon PERSON , PERSON and PERSON , as well as CARDINAL ex - girlfriends , in order to give evidence before ORG . After having deliberated , ORG decided to adjourn its examination of this request . It considered , finding that insufficient reasons had been given for this request , that it could not determine the necessity to hear these witnesses . It requested the defence to submit a reasoned request for hearing witnesses well before DATE when it would resume its examination of the appeal .

ORG resumed the proceedings on DATE . As its composition had changed in the meantime , ORG fully recommenced its examination of the applicant 's case . The applicant submitted that he had been unjustly convicted . He confirmed that he had had sexual contacts with PERSON , PERSON and PERSON but denied that he had raped them . He stated that PERSON was a prostitute and he confirmed having taken her in his car .

When heard before ORG , PERSON stated :

“ It is correct that I got into the car of the suspect . I did not know the suspect before , also not from the café . What this man has done is not normal . I had not expected the suspect to be here . This is a shock to me and I do not want to testify now . I have been heard in a detailed manner by the police for DATE .

I also do not understand that I must now act as a witness . I have received from the public prosecutor 's department a notification for an injured party and that is the reason for my present appearance . I want compensation for what has been done to me . I now first want to consult my mother . ”

After the public prosecutor had informed ORG that it was possible that PERSON had only received the notification for an injured party but not the summons to appear as a witness , ORG suspended the hearing in order to allow PERSON to consult her mother .

When it resumed the hearing , ORG noted that PERSON was no longer in the court room . Her mother stated before the court :

“ My daughter is now in the hall of the court . She had not expected having to appear as a witness . She no longer lives at home and has not seen the summons . My daughter does not wish to see [ the applicant ] anymore and does not wish to recall what has happened to her . She has tried for DATE to stop taking drugs but unfortunately without success , she is still addicted . She can not face having to recount her story again . ”

The public prosecutor informed ORG that it did not find it necessary to hear PERSON , that the last known address of PERSON was a GPE aftercare organisation and the last known address of PERSON that of an GPE police station . The public prosecutor submitted that summoning these CARDINAL witnesses would be pointless , unless the defence had new addresses for these witnesses . The defence stated that it was important to take oral evidence from these witnesses and that it expected that , if the judicial authorities made the necessary efforts , it would be possible to summon them .

After having deliberated , ORG ordered the public prosecutor to make all possible efforts to take evidence from PERSON , PERSON and PERSON as well as from CARDINAL male witnesses , PERSON and PERSON , who had been proposed by the defence . It adjourned its further examination until DATE .

The appeal proceedings were resumed on DATE . As its composition had changed again in the meantime , ORG fully recommenced its examination of the applicant 's case . It noted , inter alia , the submission of a written record of the evidence given by PERSON on DATE before the investigating judge ( rechter - commissaris ) at ORG , and that according to information provided by the investigating judge it had not been possible to hear PERSON , PERSON , PERSON or PERSON The defence stated that it waived its wish to hear PERSON The defence further submitted that , although it understood that it was pointless and superfluous to summon the QUANTITY victims , the taking of their evidence remained important for the defence and that , therefore , it did not formally waive its wish to hear them . The public prosecutor agreed with the defence that summoning the QUANTITY victims would be pointless and proposed that ORG would proceed with its examination of the applicant 's appeal . The public prosecutor further did not find it necessary to hear Mr M.

After having deliberated , ORG decided that it did not see any merit in ordering fresh attempts to summon the CARDINAL victims as it was unlikely that they would appear within an acceptable delay . It therefore rejected the request by the defence to summon them . Further noting that none of the parties wished to hear Mr M. , it considered that it was no longer necessary to hear this witness .

It heard the applicant , who admitted having had sexual intercourse with PERSON , PERSON and PERSON but denied having raped them . As regards the charges relating to PERSON he added that he had had chocolate in his car , but denied having inserted chocolate into her vagina .. After having heard the parties ' final pleadings , ORG closed its examination and set a date for judgment .

In its judgment of DATE , ORG quashed the judgment of DATE and convicted the applicant of having raped PERSON , PERSON and PERSON and of forgery .

As regards the imposition of its sentence ORG took into account that the applicant , in the course of a period of slightly DATE , had on CARDINAL occasions picked up a street prostitute in his car . As from the outset he then subsequently misled the woman by pretending , inter alia , that he could pay by providing drugs . He then committed very humiliating acts , in particular by inserting chocolate bars in the vagina of CARDINAL of his victims . He fully ignored the victims ' feelings and abused the very vulnerable position in which the victims , being street prostitutes , found themselves . Having found that at the material time the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree , whereas there was a considerable danger of recidivism of aggressive sexual offences against women , ORG sentenced the applicant to DATE imprisonment in combination with an order for his confinement in a custodial clinic . It also ordered the applicant to pay the injured party PERSON compensation in an amount of NLG CARDINAL .

ORG based its conviction of the applicant of the rape of PERSON , PERSON and PERSON on the following means of evidence :

- the applicant 's statement before ORG that he had had sexual intercourse with PERSON ;

- the detailed statement given by PERSON to the police in which she related , inter alia , that on DATE in GPE she had seen her colleague and friend Ms X. sitting next to the driver in a car passing by , that shortly thereafter this car had stopped near to the telephone booth in which she had taken shelter from the rain and that Ms X. was no longer in the car , that she had then been picked up by the driver of this car who had subsequently raped her in a brutal and very painful manner in that , before forcing her to have intercourse with him , he had forcibly inserted several chocolate bars into her vagina , and that he had also taken photographs of her before he had allowed her to dress and leave the car ;

- a report on a medical examination of PERSON on DATE according to which her vagina was considerably soiled by chocolate ;

- the record of observations and findings ( relaas van waarnemingen en bevindingen ) drawn up by the reporting police officers GPE and GPE , according to which staff of the LOC police region had informed them , after the rape of PERSON had been signalled in a police bulletin , that in DATE both in GPE and GPE – a man had raped drug - addicted prostitutes in a similar manner , that in the GPE case the perpetrator had also taken similar photographs as in the GPE case , that in all cases the suspect had been heard who had confirmed having had contacts with the victims but that these contacts had been consensual although he had not paid the prostitutes , and that the suspect had been identified as [ the applicant ] ;

PERSON recognition of the applicant as the driver of the car from a number of photographs of different persons shown to her on DATE , at which occasion she stated that his hair style on the photograph was different than when she had seen him ;

PERSON recognition of the applicant as her assailant from a number of photographs of different persons shown to her on DATE ;

- the detailed statement given by PERSON to the police , in which she related inter alia that on or around CARDINAL DATE in the GPE region she had been forced to get into a car driven by a rather aggressive man who had subsequently raped her in a crude manner , and that she remembered the car 's licence plate ;

- the record of observations and findings drawn up by the police officer who had taken down PERSON criminal complaint on DATE . According to this record the description and licence plate of the car given by PERSON corresponded to a car that was being used by the applicant and PERSON description of her assailant corresponded to the applicant 's features . The record further states that , on DATE , the reporting police officer had been informed by the GPE police that the driver of a car with the same licence plate and whose physical features exactly matched the description given by PERSON , was being searched for having raped , sexually assaulted , threatened and unlawfully deprived of liberty a NORP street prostitute in GPE , PERSON , who had filed a criminal complaint on DATE ;

- the applicant 's statement to the police in which he confirmed that he had had sexual contacts with a prostitute in GPE and in which he described the car in which he had then driven , the licence plate and description matching the information given by PERSON ;

- the detailed statement given by PERSON to the police , in which she related , inter alia , that on DATE shortly after TIME in GPE she had been picked up by a client in a car , that her friend had noted down the licence plate of this car , and that she had subsequently been raped in an aggressive and very painful manner by the driver of this car ; and

- the applicant 's statement to the police in which he confirmed that he had had intercourse with a prostitute whom he had picked up in GPE by DATE , and in which he described the car he had then driven , the description and licence plate matching the information given by PERSON

The applicant 's subsequent appeal in cassation was rejected by ORG ( PERSON ) on DATE . ORG found that LAW did not prevent the use in evidence of the statements given by PERSON , PERSON and PERSON to the police despite the fact that neither the applicant nor his lawyer had been able to question them as a witness . In this respect ORG accepted as correct and not unreasonable the conclusion of ORG that further attempts to make the CARDINAL victims appear before ORG would serve no useful purpose . ORG also accepted that the respective statements by PERSON , PERSON and PERSON were sufficiently corroborated by other means of evidence .


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

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in ORG .

On DATE the applicant brought a civil action in ORG ( PERSON ) against PERSON and PERSON , seeking termination of a contract for lifelong maintenance ( ugovor o doživotnom uzdržavanju ) . She enclosed a copy of the contract in question , drawn up on DATE , and its annex of CARDINAL DATE . The contract stipulated that the defendants were to care for the applicant until her death in order to acquire all her property post mortem . She also asked that CARDINAL witnesses , PERSON and PERSON , be heard . The defendants submitted receipts for DATE payments for the applicant ’s maintenance and asked that CARDINAL witnesses be heard .

At the hearing held on DATE ORG heard evidence from the parties and after that , in the presence of the applicant ’s counsel , scheduled the next hearing for DATE . The applicant ’s counsel fell ill and had to be hospitalised pending urgent surgery . On DATE he sent a fax to ORG excusing himself from the hearing scheduled for DATE and asked for an adjournment of the hearing . However , ORG proceeded with the hearing and heard CARDINAL witnesses , PERSON . PERSON and PERSON , the parents of CARDINAL of the defendants . It also scheduled a further hearing for DATE and ordered that CARDINAL other witnesses , also called on behalf of the defendants , be heard . Neither the applicant nor her counsel were notified of the hearing .

NORP The counsel did attend the hearing of DATE , which he had learned about by chance when at ORG on DATE for other reasons . ORG heard CARDINAL witnesses for the defendants , PERSON and PERSON , as scheduled , but refused the proposal of the applicant ’s counsel that CARDINAL other witnesses be heard . The relevant parts of the transcript of the hearing read as follows :

“ Counsel for the plaintiff asks that the plaintiff ’s neighbours PERSON , PERSON , PERSON , PERSON and PERSON be heard as witnesses about the circumstances of the applicant ’s DATE life and the care she has received from them in DATE and in particular in DATE following her release from a hospital , when she was immobile .

Counsel for the plaintiff withdraws his request that PERSON be called as a witness since , according to the plaintiff , that person is not able to attend a hearing at the court .

The judge decides that evidence is not to be heard from PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON and no further evidence is to be presented . ”

ORG proceeded by closing the proceedings and pronouncing its judgment , dismissing the applicant ’s claim . The relevant part of the judgment read as follows :

“ In view of the above , the court considers that the factual background has been fully established on the basis of the parties’ testimony and in particular in the contract for lifelong maintenance and its annex and the enclosed receipts for payment . For that reason the court declined to hear evidence from the witnesses called on behalf of the plaintiff , because these witnesses can not tell the court anything of influence on its judgment , save for the fact that they , owing to the plaintiff ’s age , have been increasingly assisting her on a DATE basis . For precisely that reason the court is not relying on the evidence heard from the witnesses Lj . M. , Š. M. and PERSON ”

A subsequent appeal by the applicant was dismissed by ORG ( Županijski sud u ORG ) on DATE .

On DATE the applicant lodged a constitutional complaint alleging , inter alia , that her right to a fair trial had been infringed , because the hearing of CARDINAL DATE had been held in the absence of her counsel who had duly excused himself due to his urgent hospitalisation and that she had thus been prevented from questioning CARDINAL witnesses . Furthermore , neither she nor her counsel had been notified of the hearing scheduled for DATE . Although her counsel did attend the hearing , which he had learned about by chance on DATE , he had not been able to prepare himself to question the CARDINAL further witnesses who had been heard at that hearing . Thus , she had been prevented from questioning any of the CARDINAL witnesses , all of whom had been heard on behalf of the defendants . Finally , she complained that ORG had refused to hear any of her CARDINAL witnesses . On DATE ORG ( Ustavni sud PERSON ) dismissed the complaint as ill - founded .


András Baka;Elisabet Fura;Jean-Paul Costa;Mindia Ugrekhelidze

The applicant was born in DATE and lives in GPE . A member and leader of the “ green ” political party PERSON , and former regional councillor and member of ORG , since DATE he has been mayor of ORG and Vice - President of ORG of GPE and , since DATE , member of parliament for PERSON . He has also worked as a journalist DATE , for example – for the ORG television channel ORG .

NORP In DATE the applicant took part in the recording of an infotainment programme for television called Tout le monde en parle ( “ Everyone ’s talking about it ” ) , presented by PERSON , which was aired on the ORG television channel GPE CARDINAL during TIME DATE to DATE . During the programme PERSON , another guest personality , mentioned the GPE nuclear accident of DATE and spoke of the emotion he had felt on reading a book dedicated to the victims of the disaster . The applicant replied as follows ( extract from the DATE judgment of ORG ) :

“ DATE some mushrooms imported into GPE were found to contain caesium and that is the result of GPE . I was presenting the TIME news on DATE of the GPE disaster in DATE ; there was a sinister character at the PERSON called Mr Pellerin who kept on telling us that GPE was so strong – the Asterix complex – that the GPE cloud had not crossed our borders . ”

At the time of the GPE disaster Mr GPE , a radiologist and qualified senior biophysics teacher , was head of ORG central de protection contre les rayons ionisants – “ the PERSON ” ) . Under the dual authority of ORG , CARDINAL of the PERSON ’s tasks was to monitor contamination levels in GPE and alert the above ministries in the event of a problem ; it was replaced in DATE by ORG ( Office de protection contre les rayonnements ionisants – “ the ORG ” ) .

Mr Pellerin was placed under investigation on DATE for “ aggravated deception ” by the first investigating judge at the GPE tribunal de grande instance , as part of an investigation opened after persons suffering from thyroid cancer , ORG ( “ the CRIIRAD ” ) and ORG ( “ the LOC ” ) lodged a complaint in DATE against a person or persons unknown , together with an application to join the proceedings as civil parties claiming damages , for failure to protect the population against radioactive fallout from the GPE accident , alleging in particular that official authorities had lied and played down the pollution of the air , soil and foodstuffs .

By summonses served on CARDINAL and DATE , Mr Pellerin brought proceedings directly against the applicant in ORG for public defamation of a civil servant , a punishable offence under sections CARDINAL and CARDINAL of the Freedom of LAW of DATE . He also brought proceedings against the television channel GPE CARDINAL and its director of publication , Mr PERSON .

In a judgment of DATE , the court found PERSON and the applicant guilty ( as principal and accessory respectively ) , sentenced them each to pay a MONEY ( ORG ) fine and , jointly and severally , to pay ORG CARDINAL in damages , declared the GPE CARDINAL television company civilly liable and ordered the publication in a newspaper , at the GPE cost , of the following announcement :

“ In a judgment delivered on DATE by ORG ) , Mr PERSON , director of publication of the national television company GPE CARDINAL , and PERSON were sentenced to fines and to pay damages to Mr PERSON , for having committed against him the offence of defamation of a civil servant , by making accusations against him on the Tout le monde en parle television programme aired on DATE . ”

The applicant appealed , but ORG upheld the judgment in respect of the guilty verdict , the sentences and the civil claims , in a judgment of DATE worded as follows :

Defamation

Mr PERSON accuses Mr Pellerin of repeatedly ( “ kept on ” ) claiming ( “ telling us ” ) at the time of the GPE disaster that the radioactive cloud would not cross GPE ’s borders . He further specifies that the civil party worked for the PERSON ( Central Service for Protection against Ionising Radiation ) , thereby reminding us that because of his expertise and his role he could not have been unaware of what was actually happening and what is now common knowledge .

Mr PERSON thus accuses Mr Pellerin of lying to journalists , and therefore to the general public , concerning the passage of the radioactive cloud over GPE , when the file clearly shows that Mr Pellerin never said any such thing , and that he had actually said that the level of radioactivity had increased in GPE – which obviously meant that the cloud had passed over the country – but that the increase would be without any harmful effect on public health , a claim which has yet to be disproved with any certainty .

To accuse Mr Pellerin of having knowingly supplied , in his capacity as a specialist on radioactivity issues , erroneous or even untrue information about such a serious problem as the GPE disaster , which was of potential consequence for the health of the NORP population , is undeniably damaging to his honour and his reputation and is therefore defamatory . The fact that Mr PERSON ’s comments , according to his counsel , were uttered in a humorous tone , as a quip , makes them no less defamatory and to acknowledge that is not a violation of LAW ...

Good faith

As the events criticised occurred so long ago , the defendant has adduced no proof that his defamatory allegations are true , but claims that he acted in good faith .

Moderation of tone

In using such terms as “ kept on telling us ” , Mr PERSON insists strongly and in no uncertain terms that Mr Pellerin deliberately and repeatedly lied , and that he constantly and knowingly distorted the truth .

He also describes Mr Pellerin as a “ sinister ” character , which is not a neutral expression , particularly when used in connection with something like the GPE disaster . He also says the civil party suffers from the “ Asterix complex ” , thereby subjecting him to derision and undermining his credibility .

The insistence shown by Mr PERSON , the peremptory nature of his comments and the pejorative characteristics he attributes to the civil party reveal a lack of moderation in his remarks .

As CARDINAL of the conditions of good faith is lacking , the defendant can not be considered to have acted in good faith and there is no need to examine the other aspects of good faith .

He must therefore be convicted .

ORG dismissed an appeal on points of law lodged by the applicant , Mr GPE and GPE CARDINAL based , inter alia , on an alleged violation of LAW . The judgment , delivered on DATE , reads as follows :

The terms of the impugned judgment and the examination of the case file place ORG in a position to affirm that ORG , for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it , correctly assessed the meaning and scope of the remarks impugned in the summons and rightly denied the defendants the benefit of good faith , after finding , without contravening the provisions of LAW ... that the said remarks amounted to defamation .

For the remainder , ORG correctly considered that the director of publication , whose duty it is to supervise and verify every pre - recorded programme the channel broadcasts , is answerable in law for any remarks made in the course of the programme which are found to be defamatory .

The applicant adduced a copy of a ORG press release dated DATE , which reads as follows :

“ NORP soil is far enough away to have been completely spared by the radioactive fallout from the accident at the GPE power station . At no time has the recorded increase in radioactivity levels been a threat to public health .

ORG has readings taken by ORG ( PERSON ) , which answers to ORG . According to the PERSON the maximum airborne radioactivity levels have always remained entirely negligible .

GPE has asked ORG to put in place a uniform monitoring procedure , without delay , which all countries could apply in respect of non - member countries , based on the recommendations of ORG . Such measures should on no account hinder intracommunity exchanges . Furthermore , we have asked all the member GPE to inform their partners of any measurements taken and their results .

Special precautionary measures have been put in place in certain member States in respect of NORP products . This is quite unnecessary . ORG will make every effort to see to it that the free movement of all NORP products towards these countries is restored as soon as possible . ”

The applicant also adduced an extract of the transcript of the statement made by ORG to the ORG on CARDINAL DATE ; it reveals in particular that between the GPE accident and that date the PERSON issued CARDINAL statements about the accident .

The applicant further adduced a document , dated DATE , entitled “ Recapitulation of the mission completed by the CARDINAL experts in accordance with the orders of DATE and DATE of [ the ] ... first investigating judge at the GPE tribunal de grande instance ” . It is the opinion of CARDINAL judicial experts appointed by the judge in charge of the investigation mentioned in paragraph CARDINAL above to analyse , among other things , the sealed samples collected by the PERSON at the time of the GPE accident and determine what the PERSON knew . The “ general conclusions ” of the opinion read as follows :

“ At this stage in our investigation it is clear that the PERSON was very promptly supplied with all the scientific data in the possession of its network and the information it requested urgently from various bodies concerning radioactive contamination in mainland GPE and Corsica , for most of the radioactive isotopes , including iodine CARDINAL , iodine CARDINAL , tellurium CARDINAL , caesium CARDINAL and caesium CARDINAL . The information was interpretable and location - specific .

The PERSON was also aware that the results for the iodine isotopes were obtained using filters which captured only a small percentage , which meant that the readings for iodine CARDINAL and CARDINAL were well below the real values .

The release of this information by the PERSON to the decision - making authorities and the public was neither complete nor precise and certain values were concealed .

The use of different units , some of which were no longer in current use , made comparisons or evaluations very difficult , even for specialists , and therefore even more so for the decision - making authorities and the public .

The publication of mean values per département , region or part of the country helped to mask the reality of contamination concentrated in certain localities , later referred to as “ leopard spots ” , linked to weather conditions – particularly rainfall – and the landscape .

In this manner the presence , especially in DATE after the clouds passed , of quantities of radioactive isotopes which were dangerous , particularly for fœtuses and for young children , was hidden from the decision - making authorities and the public .

Telex messages contained in the sealed evidence also show how , in GPE and even in the international scientific community , partial or mean values were imposed ( some mean values being based on single readings ) , which led to the publication of inaccurate maps .

In our opinion mapping is possible only at the level of the “ leopard spots ” , where populations living in relative isolation may have been subjected to levels of radiation similar to those in certain territories close to the GPE power station in DATE .

Attempts are still being made DATE to produce these maps which , in these conditions , can not reflect what really happened in GPE in DATE following the GPE accident , and this is still a bone of contention .

The information of the IRSN [ Institut de radioprotection et de sûreté nucléaire – Institute for ORG and Nuclear Safety ] sheds some light on the subject , but it was received too late to be included in this report within the allotted time .

Finally , there is information in the sealed evidence concerning the respective roles by the various ORG authorities in such circumstances [ sic ] . There was a major controversy over the subject , including whether informing the public was the role of the PERSON or the LOC [ Secretary General of ORG ] , whose job it was according to interministerial directive SGSN CARDINAL on informing the public and the media in the event of a nuclear safety incident or accident . This aspect of the evidence can not be neglected . ”

NORP The relevant provisions of LAW of the Freedom of the Press Act of DATE provide :

“ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged . The direct publication or reproduction of such a statement or allegation shall be an offence , even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches , shouts , threats , written or printed matter , placards or posters .

It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact . ”

“ Defamation by reference to the functions or capacity of CARDINAL or more ministers or ministry officials , CARDINAL or more members of CARDINAL of the CARDINAL legislative chambers , a civil servant , a representative or officer of the law , a minister of religion in receipt of a ORG salary , a citizen temporarily or permanently responsible for a public service or discharging a public mandate , a member of a jury or a witness on the basis of his witness statement [ in speeches , shouts or threats made or uttered in public places or meetings , or in written or printed matter , drawings , engravings , paintings , emblems , images or any other written , spoken or pictorial medium sold or distributed , offered for sale or exhibited in public places or meetings , or on placards or posters on public display , or in any audiovisual medium ] shall be punishable [ by a fine of MONEY ] .

“ The truth of the defamatory allegation , but only when it relates to functions , may be established in the ordinary way in the case of allegations against ORG institutions , the army , navy or air force , the public authorities and any of the persons listed in DATE .

The truth of defamatory and insulting allegations may also be established against directors or administrators of any public industrial , commercial or financial company .

The truth of the defamatory allegations may always be established except :

( a ) when the allegation concerns the person ’s private life ;

( b ) when the allegation refers to events dating back DATE ;

( c ) when the allegation refers to events in respect of which an amnesty has been granted or which are time - barred or gave rise to a conviction which has been expunged by rehabilitation or review .

Subsections ( a ) and ( b ) above shall not apply when the facts are offences provided for and punishable under ORG CARDINAL to CARDINAL - CARDINAL and CARDINAL - CARDINAL to CARDINAL - CARDINAL of LAW and were committed against a minor .

In the cases provided for in DATE , rebutting evidence is reserved . If proof of the defamatory allegation is established , the defendant shall be acquitted .

In any other circumstances and in respect of any other unspecified person , when the allegation has given rise to proceedings brought by the prosecution service or a complaint lodged by the defendant , while the resulting investigation takes its course the proceedings and trial for defamation shall be suspended . ”


The applicant is a NORP citizen , born in DATE . He is currently detained in GPE in GPE . He is represented before the ORG by Mr PERSON , a solicitor practising in GPE .

On an unspecified date the applicant was charged by ORG with various offences of dishonesty . He applied and was granted legal aid .

At DATE the applicant 's case was transferred to ORG . It was first listed before a judge in DATE . At that stage the applicant was represented by solicitors and senior and junior counsel .

On DATE the applicant was arraigned . The hearing was fixed for DATE . However , that date was vacated because the applicant 's representatives had sent to ORG detailed submissions as to why the prosecution should have been discontinued . Following the rejection of these submissions , the applicant decided that he wished to represent himself .

On DATE the applicant 's counsel appeared before the judge and asked to be allowed , together with their solicitors , to withdraw from the case . The judge heard the applicant 's senior counsel , his solicitor and the applicant himself . He also heard counsel for the ORG .

The applicant 's position was that he wished to present himself the factual side of the case , examine and cross - examine witnesses and address the jury . At the same time he wanted to be allowed to have his solicitors and counsel to advise him upon and argue on his behalf such matters of law as might arise in the course of the case . The applicant 's solicitor told the judge that he had advised the applicant that he should be represented by counsel if his case was to be conducted properly . However , according to the solicitor , there had been a serious breakdown of confidence between himself and the applicant and in those circumstances , unless directed to the contrary , he wished to withdraw .

The applicant 's counsel said that he knew of cases where a defendant had retained solicitors and counsel to argue the law and the ORG 's counsel accepted that , provided that proper ground rules were established , such a course of action could be followed .

The judge , having satisfied himself that the applicant had formed a firm and considered opinion and that his views had been properly presented to the court , decided that it would be improper to allow the applicant to proceed with the case in the manner he envisaged . The judge considered that , if counsel were to continue to participate in the proceedings , they should have control over the case . Counsel for the applicant and the ORG agreed . Then the applicant was asked whether , in the light of this development , he wished to reconsider his decision to represent himself . He refused .

The court reconvened on DATE . The matter of the applicant 's representation was again discussed . The judge formally allowed the applicant 's counsel and solicitors to withdraw . The applicant was allowed to represent himself . However , new solicitors were retained to advise the applicant who could seek advice from counsel on particular matters . These solicitors assisted the applicant throughout the proceedings and occasionally consulted counsel .

On DATE the applicant requested that the court should sit DATE a week . However , the judge refused this request .

On a number of subsequent occasions , before the actual beginning of the trial , the applicant repeated his wish to have the kind of representation he had favoured from the beginning . However , the judge reaffirmed his earlier ruling . On CARDINAL occasion , on DATE , the judge again sought and received confirmation that the applicant had decided to represent himself .

The judge 's last pre - trial re - iteration of his ruling was on DATE when he stated the following :

“ It is an absolute right for someone to represent themselves ; and Mr GPE has decided to represent himself in this trial . I have considered the question of whether I should extend his legal aid for leading and junior counsel to represent him ; and I have come plainly to the conclusion that it would be wholly inappropriate in this case for Mr GPE to represent himself , have control of cross - examination and the calling of witnesses [ on ] issues of fact , then instruct counsel to represent him on points of law throughout the course of the case . It seems to me that that would be wrong . It would involve , were I to grant this application , an adjournment of this case for ... a considerable period ... and , in all the circumstances , I have no alternative but to reject the application that is made . The defendant has had ample time to prepare himself for this trial ... [ A ] great deal of work has been done on his behalf . The documents have all been got in order and , in my view , the representation that he has - which in the representation of experienced solicitors , who no doubt are knowledgeable in the law - is a proper basis on which we ought to proceed . ”

The trial began on DATE . The applicant requested that the hearing be adjourned for a period of DATE because he was suffering from mental exhaustion and stress . The judge , having heard expert evidence from CARDINAL doctors for the defence and CARDINAL for the prosecution , refused the applicant 's request on the ground that the applicant was fit to continue with the hearing . Then the applicant cross - examined the most important prosecution witness .

On DATE the applicant informed the judge that he was to undergo an operation as he was suffering from the disease of pneumothorax . He applied for an adjournment that would also give him sufficient time to recover from the post - operative effects . The court adjourned the case for DATE . On returning , however , on DATE , the applicant was still suffering from post - operative discomfort and requested another DATE 's adjournment . In support of his request the applicant invoked his doctor 's opinion that he was at risk of a nervous breakdown . However , the judge relied on the evidence of another doctor that the applicant was in a fit state and refused his request .

On DATE the judge , in the absence of the jury , threatened the applicant that he could be found in contempt of court because CARDINAL of his witnesses was not present .

On DATE the applicant , having completed DATE in the witness box , asked for an adjournment until DATE in order to prepare for the examination of the defence witnesses . The judge decided that the rest of DATE would be sufficient for the applicant to prepare himself .

On DATE the applicant was convicted of a number of dishonesty offences . He was sentenced to DATE imprisonment .

The applicant obtained leave to appeal to ORG against conviction and sentence . He relied on a number of grounds including the failure of the judge to grant his above - mentioned requests concerning the presentation of his case , the number of DATE and the adjournments . In the proceedings before ORG the applicant was represented by legal aid counsel .

On DATE ORG , for technical reasons , quashed the applicant 's convictions on some counts , substituted convictions for different offences and reduced his sentence to DATE . However , the court did not allow any of the grounds of appeal concerning the above - mentioned requests . Furthermore , it refused to certify any question of law involved in the determination of the appeal as being of general public importance .


The applicant is an NORP citizen born in DATE and currently detained in FAC , GPE .

He is represented before the ORG by PERSON , solicitor , PERSON J. McCrudden FAC and Mr PERSON , counsel , all practising in GPE .

A.

At TIME on DATE the applicant was arrested at his home pursuant to section CARDINAL ) of ORG ( Temporary Provisions ) Act DATE ( “ the DATE LAW ) . He was then taken to ORG where he was examined at TIME by PERSON who certified him fit to be questioned .

Before being questioned the applicant was cautioned under LAW , DATE and CARDINAL of the Criminal Evidence ( GPE ) Order DATE ( “ the DATE LAW ) . The applicant was also asked whether he wished to consult a solicitor . He replied that he did not .

In the course of DATE the applicant was interviewed on CARDINAL occasions and responded to police questioning by denying his involvement in any of the offences put to him . He offered an alibi in response to a claim that he had been involved in a robbery at a bookmaking LOC , which the police declined to accept . On TIME , the applicant informed the police that he was mistaken in this alibi and he offered another explanation for his whereabouts at the time of the robbery . Again the police refused to accept this alternative alibi . The applicant asked to consult with his solicitor , Mr McGuckin . On receipt of this request , at or TIME , a police officer made an attempt to contact PERSON at his office . The police officer was told by PERSON office that he was out and could not be contacted . It was not known when he would return but that the message that the applicant was requesting his presence at ORG would be passed on to him . In these circumstances ORG , pursuant to non - statutory guidelines issued by the Secretary of ORG relating to the questioning of terrorist suspects , authorised the interview to continue although the applicant had not had an opportunity to consult with his solicitor .

When PERSON eventually arrived at ORG DATE , at TIME , facilities were provided for the applicant to consult with him in private . The applicant had , however , already admitted to membership of ORG ( “ IRA ” ) and attempting to rob a post office . Following the consultation the applicant went on to make further verbal admissions and at TIME the applicant dictated a detailed statement to the interviewing officers describing his involvement in various terrorist offences , including a number about which he had not been questioned . After having made this statement , the applicant took the police to the area of his house and pointed out the various hiding places for weapons and explosives used by the IRA to which he had referred in his admission .

The applicant was tried by a judge sitting alone at ORG . The indictment upon which he was charged contained CARDINAL counts alleging various terrorist offences including CARDINAL counts of conspiracy to murder , possession of firearms and ammunition , possession of explosive substances , false imprisonment , hijacking , robbery and membership of the IRA .

The prosecution relied exclusively on the verbal admissions and the written statement which the applicant had made in the course of DATE of questioning at ORG .

The applicant did not dispute that the evidence before the court accurately recorded admissions which he made in the course of being interviewed . However , he submitted through his counsel at a voir dire hearing that the confession evidence should be excluded under section CARDINAL(CARDINAL ) of GPE ( Emergency LAW Act DATE ( “ the DATE LAW ) on the grounds that it had been obtained by violence and threats of violence or , alternatively , under section ORG ) of the CARDINAL Act , in order to avoid unfairness to the applicant or as otherwise being in the interests of justice .

The trial judge rejected the applicant ’s contention that the admissions had been obtained by violence or threats of violence , being satisfied with the evidence given by the interviewing officers that they had treated the applicant fairly and properly . The trial judge therefore declined to exclude the evidence in the exercise of his general discretion under section ORG ) of the CARDINAL Act .

The applicant ’s counsel also argued under section ORG ) of the CARDINAL LAW that the applicant was someone who was mentally handicapped , or in any event someone of limited intelligence with a vulnerable personality ; that he had been induced to make verbal confessions on the basis that he would be released as an informer provided he first revealed information about IRA activities , and a written confession on the basis that he would only get a CARDINAL or DATE sentence ; that notwithstanding the applicant ’s request to consult with a solicitor the police had , pending the solicitor ’s arrival , persisted in questioning the applicant ; and that in these circumstances , whether severally or as a whole , the confession evidence should be excluded so as to avoid unfairness or otherwise in the interests of justice .

In rejecting the applicant ’s argument under section ORG ) of the LAW , the trial judge found that there was no medical evidence to support the assertion that the applicant was mentally handicapped . In this connection he noted that the consultant psychiatrist called by the applicant did not suggest that the applicant was mentally handicapped . As to the claim that the applicant was a vulnerable personality , the trial judge on the basis of the totality of the evidence

“ [ was ] entirely satisfied that the [ applicant ] was in no sense a mentally handicapped person or a vulnerable personality … . I consider him to be a ‘ street - wise’ person who did not require the presence of a friend or solicitor so that his interviews could be considered fair . ”

Furthermore the trial judge rejected as lies the applicant ’s evidence that he had , in confessing , been offered inducements by the interviewing officers . He also ruled that the relevant domestic law did not , in circumstances where a terrorist suspect had requested to consult with a solicitor , automatically require the interview to cease pending the solicitor ’s arrival , and that ORG had properly authorised the continuation of the interview in accordance with paragraph CARDINAL ) of the non - statutory guidelines issued by the Secretary of ORG on the grounds that awaiting the arrival of the solicitor would cause unreasonable delay in the process of investigation . The trial judge was , in the circumstances , satisfied that it was fair to interview the applicant without waiting for his solicitor , that the confession evidence was reliable , and that he could properly act on it in convicting the applicant .

The applicant ’s counsel contended in addition at the voir dire hearing that the applicant , on TIME of his arrest on DATE , had headaches and an upset stomach caused by heavy drinking TIME , and that he was not fit to be interviewed . These claims were rejected by the trial judge , who noted that no mention of them had been made to PERSON or to police officers at the time . The judge accepted PERSON evidence that the applicant was fit to be interviewed and considered that the complaints were a “ deliberate exaggeration ” .

On DATE the applicant was convicted on CARDINAL of the CARDINAL counts in the indictment and sentenced to DATE imprisonment .

The applicant appealed against conviction . On appeal the applicant challenged the judge ’s findings in respect of the issues raised under section ORG ) of the CARDINAL Act . In respect of the denial of access to a solicitor , the applicant raised the further point that following the decision of the Commission in the case of PERSON v. GPE ( see PERSON the GPE judgment of DATE , Reports of Judgments and Decisions CARDINAL-I , p. CARDINAL , opinion of the Commission ) the denial of access to a solicitor was such as to deprive the applicant of a fair trial , and that accordingly the trial judge had erred in the exercise of his discretion in not excluding the confession evidence . The applicant did not challenge on appeal the ruling of the trial judge that the admissions had not been obtained through violence or threats of violence .

Following a review of the transcript of the evidence before the trial judge on the voir dire , ORG ( PERSON ) upheld the trial judge ’s findings in respect of the points which had been raised on behalf of the applicant under section ORG ) of the LAW . In respect of the applicant ’s further contention that in view of the decision of the Commission in the PERSON v. the GPE case the trial judge had erred in not excluding the evidence , ORG ruled that :

“ The only right which ORG intended to give a terrorist suspect in respect of access to a solicitor was the right to consult privately , after he had requested such a consultation given by LAW [ of the CARDINAL LAW ] , subject to the restrictions set out in section CARDINAL(CARDINAL ) . Moreover section CARDINAL contains no prohibition against the police interviewing a terrorist suspect before his solicitor arrives to consult with him . ... [ I]t is clear that a judge would be acting contrary to the will of ORG if he were to hold in the exercise of his discretion under section ORG ) of the CARDINAL LAW that an admission made by a terrorist suspect in an interview must be excluded from evidence on the sole ground that it was unfair that the suspect ’s solicitor was not present at the interview or that the solicitor had not consulted with him prior to the interview . ”

ORG accordingly held that the trial judge had properly exercised his discretion in not excluding the confession evidence under section ORG ) of the LAW .

B. Relevant domestic law and practice

Provisions governing inferences which may be drawn from an accused ’s silence

LAW ) Order DATE provides as relevant :

“ Circumstances in which inferences may be drawn from an accused ’s failure to mention particular facts when questioned , charged , etc .

( CARDINAL ) Where , in any proceedings against a person for an offence , evidence is given that the accused

( a ) at any time before he was charged with the offence , on being questioned by a constable trying to discover whether or by whom the offence was committed , failed to mention any fact relied on in his defence in those proceedings ; or

( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact ,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , paragraph ( CARDINAL ) applies .

( CARDINAL ) Where this paragraph applies : ...

( c ) the court ... in determining whether the accused is guilty of the offence charged , may

( i ) draw such inferences from the failure as appear proper ;

( ii ) on the basis of such inferences treat the failure as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure is material . ”

Provisions governing access to a solicitor

The relevant provisions at the time of the applicant ’s trial governing the right of access to legal advice as a terrorist suspect were contained in LAW DATE which , in so far as material , provides :

“ ( CARDINAL ) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled , if he so requests , to consult a solicitor privately . ”

Section CARDINAL of the Act does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor , nor is a person suspected of terrorist offences entitled – as provided for under paragraph CARDINAL of Code C of the Criminal Evidence ( GPE ) Order DATE in respect of non - terrorist offences – to have his solicitor present whilst he is interviewed : see section CARDINAL(CARDINAL ) of the DATE Order which provides , in so far as relevant :

“ Nothing in a code of practice ... applies to the exercise of powers conferred by or under [ the Prevention of Terrorism ( Temporary Provisions ) Act DATE ] or to a person arrested or detained under those provisions . ”

Non - statutory guidelines issued by the Secretary of ORG for GPE in respect of the detention of persons suspected of terrorist offences , current at the time of the applicant ’s arrest , provided , in so far as relevant , at paragraph CARDINAL :

“ A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless : ...

( b ) an officer of the rank of superintendent or above has reasonable grounds for believing that :

( i ) delay will involve an immediate risk of harm to persons or serious loss of , or damage to , property ; or

( ii ) where a solicitor has been contacted and has agreed to attend , awaiting his arrival would cause unreasonable delay to the process of investigation ; or

( c ) the solicitor nominated by the person , or selected by him from a list :

( i ) can not be contacted ;

( ii ) has previously indicated that he does not wish to be contacted ;

( iii ) having been contacted , has declined to attend ; or

( d ) the person has given his agreement in writing that the interview may be started at once . ”

The admissibility of confession evidence is governed by LAW of GPE ( Emergency LAW Act DATE which provides , inter alia , for the exclusion of confession evidence under section CARDINAL(CARDINAL)(b ) where that evidence has been obtained by violence or threat of violence , or under section ORG ) :

“ ... in the case of any statement made by the accused and not obtained by so subjecting him as mentioned in subsection ( CARDINAL)(b ) above , the court ... has a discretion [ to exclude the statement ] if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice . ”


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

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

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

NORP The applicant was detained and tried on a charge of fraud . So far as the subject matter of the present application is concerned , the term of the applicant ’s detention was authorised until DATE .

Prior to the expiry of the authorised term of his detention , and by means of several applications , the applicant sought the withdrawal of all the judges of the courts involved in his case on the grounds of bias .

The applicant also requested release and the public prosecution service requested an extension of the term of the applicant ’s detention . Both requests were dismissed by ORG súd ) and , following interlocutory appeals ( sťažnosť ) , by ORG ( Krajský súd ) on DATE and DATE respectively .

On DATE the applicant was indicted to stand trial on the above charges and , the following day , that is to say on DATE , he submitted an urgent request for release , relying on the expiry of the term of his detention on DATE , as mentioned above .

On DATE the president of the ORG bench trying the applicant informed him by way of a letter , in response to his request for release , that it was sufficient for the lawfulness of his detention to be examined at DATE , together with the preliminary examination of the indictment ( predbežné prerokovanie obžaloby ) .

Of the challenges for bias submitted by the applicant , the CARDINAL which is decisive for the purposes of the present case was directed against all the judges of ORG . It was dismissed as unfounded by ORG ( Najvyšší súd ) and its decision was served on ORG on DATE and DATE , respectively .

On DATE , after receiving ORG decision concerning the impartiality of its judges , ORG dismissed the applicant ’s request for release of DATE , and ruled that he should remain in detention .

On DATE , following an interlocutory appeal by the applicant , ORG came to the conclusion that , in the absence of a decision to extend his detention beyond DATE , the applicant ’s detention had had no lawful basis . It therefore quashed the decision of DATE and ordered the applicant ’s release : the order was implemented immediately .

The trial is still pending .

On DATE the applicant lodged a complaint under LAW no . PERSON . , as amended ) with ORG ( Ústavný súd ) .

Relying on LAW and CARDINAL of the LAW , the applicant contended that ORG had arbitrarily failed to release him from detention from DATE and to determine speedily the lawfulness of his detention when he had requested release on DATE .

The applicant sought an order for his release and the equivalent of MONEY ( ORG ) in damages .

NORP In reply to the complaint , ORG argued that it had not been possible for it to determine the applicant ’s request for release of DATE as long as and until his challenge of bias against all its judges had not been determined . It had ruled on the applicant ’s request the same day , as soon as it had been determined and the ORG decision of DATE in that respect had been served on ORG .

On DATE and DATE respectively ORG declared the complaint admissible and found a violation of the applicant ’s rights under LAW . It held that , in the circumstances , a decision on the applicant ’s request for release had been in the category that had to be taken immediately ( neodkladný úkon ) and should have taken precedence over the determination of impartiality of ORG judges .

At the same time , ORG held that the complaint under LAW was consumed by that LAW CARDINAL § CARDINAL of the Convention .

As to the applicant ’s just satisfaction claim , ORG held that the protection of the applicant ’s rights had been completed by his release and that , in the circumstances , the finding of a violation of his rights was sufficient redress for him . Lastly , the applicant was awarded costs .

ORG judgment ( nález ) was served on the applicant on DATE and no appeal lay against it .

The relevant part of Article CARDINAL reads as follows :

Everyone shall have the right to compensation for damage caused by an unlawful decision of a court , other ORG body or a body of public administration , or by wrongful official action .

Conditions and details ... shall be provided for by an Act of ORG . ”

Article CARDINAL :

“ CARDINAL . ORG shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash that decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order that authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

In its decision on a complaint ORG may award appropriate financial compensation to a person whose rights under paragraph CARDINAL have been violated .

Liability for damage or other loss in respect of a person who has violated rights or freedoms as referred to in paragraph CARDINAL shall not be affected by a ORG decision . ”

LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) governs the organisation of ORG , the procedure before it and the status of its judges .

An individual complaint under LAW is made subject to the rule of exhaustion of ordinary remedies , which is formulated in the relevant part of section CARDINAL(CARDINAL ) and ( CARDINAL ) as follows :

“ CARDINAL . ORG ] [ individual ] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means , which a statute effectively provides to [ the complainant ] with a view to protecting [ the complainant ’s ] fundamental rights or freedoms , and which the complainant is entitled to use under special statute .

The Constitutional Court shall not declare ORG ] [ individual ] complaint inadmissible even if the condition under paragraph CARDINAL has not been fulfilled , if the complainant establishes that [ the complainant ] has not fulfilled this condition for reasons worthy of particular consideration . ”

Under its section CARDINAL ) , when dealing with individual complaints , in the event of a finding of a violation of a fundamental right or freedoms :

“ ORG may also grant appropriate financial compensation to a person whose fundamental right or freedom has been violated . ”

Section CARDINAL(CARDINAL ) provides that :

“ If ORG quashes a final and binding ( právoplatné ) decision , measure or act and remits the matter for further proceedings , the person who issued the decision , decided on the measure or carried out the act is liable to examine and determine the matter anew . In such proceedings or procedure [ he ] is bound by the legal view of ORG . ”

In connection with the present application , as well as CARDINAL other individual applications under the Convention of a similar kind , ORG produced a report .

The report is dated DATE and concerns specifically the existence of an enforceable right to compensation , as required by LAW , in respect of detention in contravention of LAW and the Constitutional Court ’s practice in awarding appropriate financial compensation .

The report and case - law references contained therein can be summarised as follows .

Awarding appropriate financial compensation under LAW is an optional remedy in respect of a violation by a public authority of fundamental rights and freedoms of individuals and legal entities which has been found by ORG . The purpose of appropriate financial compensation is to complete the protection of the fundamental right violated in instances where it has been established that the violation occurred in such a way as to call for a level of protection higher than the mere finding of a violation or , as the case may be , an order by ORG that a case be dealt with without a violation of the fundamental right in question ( cases nos . PERSON CARDINAL/CARDINAL and PERSON CARDINAL/CARDINAL ) .

The question of an award of appropriate financial compensation arises in particular where it is not possible to remedy a violation of a right or freedom by way of quashing the impugned decision or measure or by restoring the status quo ante ( case no . I ÚS CARDINAL/CARDINAL ) .

The purpose of appropriate financial compensation is to reduce the loss felt as a result of the violation of the fundamental right ; the Constitutional Court determining the award of compensation on an equitable basis and taking into account the circumstances of the individual cases concerned ( mutatis mutandis , case no . III ÚS CARDINAL/CARDINAL ) .

As regards the system of remedies in respect of detention in violation of LAW , by virtue of LAW , the liability of a person who has violated rights or freedoms as referred to in paragraph CARDINAL of that Article for damage or other loss is not to be affected by ORG decision , including on appropriate financial compensation . This provision is of particular relevance in correlation with the right to compensation for damage ( including non - pecuniary damage ) caused by a public authority under LAW .

The provision of LAW , which allows for an award of appropriate financial compensation , is a special and autonomous remedy , which is independent of LAW . It does not constitute a lex specialis and , therefore , an award or non - award of appropriate financial compensation under LAW does not preclude a claim for compensation for pecuniary or non - pecuniary damage under sections CARDINAL , DATE and CARDINAL of LAW .

LAW ( Law no . CARDINAL/CARDINAL ) was enacted on DATE and became operative on DATE . It provides for the liability of the ORG for damage which has been caused by , inter alia , unlawful arrest , detention ( zadržanie ) or other deprivation of liberty ( section ORG ) ) ; decisions concerning remand in custody ( väzba ) ( section CARDINAL ) ) ; and wrongful official action ( section CARDINAL ) ) .

Pursuant to section CARDINAL , where a decision on arrest , detention or any other deprivation of liberty has been quashed as being unlawful or where there has been wrongful official action in that context , a person affected by it is entitled to compensation for damage .

The right to compensation for damage caused by a decision concerning detention on remand is vested in the person who has been detained , provided that the criminal proceedings against him or her have been dropped ( section CARDINAL(CARDINAL)(a ) ) , or he or she has been acquitted ( section CARDINAL ) ) , or the matter has been referred to another authority ( section CARDINAL ) ) .

NORP However , no such right arises when the person concerned himself or herself has given cause to be remanded in custody ( section CARDINAL(CARDINAL)(a ) ) .

Section CARDINAL , which deals with compensation for damage caused by wrongful official action , provides :

“ CARDINAL . The ORG is liable for damage caused by wrongful official action . Wrongful official action includes a public authority ’s failure to take action or issue a decision within the statutory time - limit , general inactivity in the exercise of public authority , unjustified delays in proceedings or other unlawful interference with rights and legally recognised interests of individuals and legal entities .

The right to compensation for damage caused by wrongful official conduct is vested in the person who sustained the damage . ”

Section CARDINAL defines the manner and extent of compensation for damage . Its relevant part provides :

“ CARDINAL . Damage and lost profit shall be compensated for , unless special legislation provides otherwise .

In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct , monetary compensation shall also be awarded for non - pecuniary damage , if it is not possible to compensate for it otherwise . ”

Under section CARDINAL(CARDINAL ) , unless provided for otherwise by special legislation , disputes concerning matters regulated by LAW are to be decided upon by the courts .

In a judgment of CARDINAL DATE ( in case no . CARDINAL CARDINAL/CARDINAL ) ORG allowed an action for damages by CARDINAL individuals against the ORG under LAW and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal .

On DATE the Banská Bystrica Regional Court upheld the judgment following the defendant ’s appeal .

On DATE ORG allowed an appeal ( case no . MONEY ) in an action by an individual against the ORG under LAW for damages and awarded him a sum of money in compensation for non - pecuniary damage caused by his remand in custody in the context of a criminal trial that had ended with his acquittal .

In a judgment of CARDINAL DATE ( case no . CARDINALC CARDINAL/CARDINAL ) the GPE I ORG allowed an action for damages by an individual against the ORG under LAW and awarded the claimant a sum of money in compensation for non - pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial .

The impugned wrongful official action concerned extension of the claimant ’s detention pending trial .

The action was preceded by a constitutional judgment of DATE ( case no . I. ÚS CARDINAL/CARDINAL ) in which ORG found a violation of the claimant ’s rights under LAW and CARDINAL in connection with the same facts .

However , ORG did not award the claimant damages as he had made no claim for damages .