OSMANI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

At the DATE local elections the applicant was elected mayor of ORG . On DATE ORG took a decision implementing section CARDINAL of the Statute of the municipality of GPE on the use of flags . It provided that the NORP and NORP flags should be placed along with the NORP flag in front of FAC . Other public institutions were also informed to display the NORP and NORP flags during public holidays .

On DATE the Government and a political party requested ORG to examine the constitutionality and legality of ORG decision on the ground that neither the LAW nor the respective law granted power to the municipalities to regulate the display of flags . On DATE ORG declared the request for examination of the constitutionality and legality of LAW of the Statute of the municipality of ORG admissible and , by way of an interim order , suspended the validity of all ensuing decisions . ORG was served with the decision on DATE .

On DATE the applicant organised a meeting at which the NORP flag was not flown but the flag of GPE was displayed and the NORP national anthem was played . At the meeting he , inter alia , stated :

“ Dear citizens of ORG and all NORP from where ever you come . Your gathering demonstrates once again that we started slowly but surely to fulfil what we have promised in the electoral campaign in the field of politics , culture and economy .

Each NORP , wherever he or she lives has CARDINAL thought , CARDINAL idea , CARDINAL stance concerning the national issue , the issue of the NORP language , the flag or the University ...

This should be a clear message for all , for [ the President ] PERSON , [ the Prime Minister ] PERSON , ORG that nobody should touch the NORP flag . You are right [ the citizens shout : “ we will sacrifice our lives but not the flag ” ] we will sacrifice our lives but not the flag . We shall not accept any decision by ORG which is entirely a political one , this institution which should protect the constitutionality and the legality but in fact violates LAW , LAW that they have adopted and laws which they have adopted without asking us , it is for us to decide on our own rights . It is not for them to decide .

Many troops flew the NORP flag , i.e. , Partisans’ , Balists’ [ NORP movement which occupied the western part of the Former GPE during the Second World War ] and other NORP troops which were always fighting for the liberation of our territories . Our territories in [ the Former GPE of ] GPE are our territories , this should be acknowledged once for all and on these territories our flag shall always be flown .

We were not given our mandates to execute the policy of the Government [ of the Former GPE ] of GPE , but to do what you have wished to be done and that is certainly what we are going to do , because we were not elected by the Government [ of the Former GPE ] of GPE , the ORG or the President ...

The [ Government ’s ] black hand covered with blood ORG DATE , their black hand wishes to cover with blood our national flag DATE , but they have first to think thoroughly as we are going to reply to a slap with a slap .

I gave them a clear message that as long as I am in the FAC nobody shall ever touch the NORP flag - they may go ahead , they may suspend me and the councillors of FAC , but they shall never touch the flag , since we were not elected to remain quiet in our offices , DATE we are ready to give up our duties and offices , shall we do so ?

During the election campaign I promised you that ORG will become an NORP town and so it will be .

It shall [ become an NORP town ] by an official display of the flag , the official use of the NORP language and by putting up the signs of the stores in NORP language , and [ by establishing ] many other institutions with other NORP municipalities . We shall do it within the framework of the project of the regionalisation .

It should be clear that the NORP flag is the eternal symbol of the NORP .

Finally , I wish to thank you all and I promise you once more that we shall hold to the issue of the flag , the language , the ORG and to many other NORP projects until the end , that we will soon turn them into reality notwithstanding the will of whomever , we shall abide by your political will and the only court that we shall obey eventually is the NORP nation and nobody else .

Long live the NORP flag ” .

On DATE ORG informed ORG of its decision not to implement ORG interim order of CARDINAL DATE emphasising that the removal of the flags would lead to an inter - ethnic conflict .

On DATE a group of citizens tried to remove the NORP flag from the front of FAC which led to a fight between the citizens . Following this , the applicant outside his competence as a mayor , organised armed shifts for the protection of the NORP flag .

Furthermore , he also acting outside of his competence as a mayor and out of law , set up central crisis headquarters with several regional branches . A list of civilians of NORP ethnic origin with special responsibilities was drawn up and money was allocated for different activities , such as propaganda and communication , shelters for injured people , etc .

On DATE the applicant warned ORG that the interim order of CARDINAL DATE would lead to an inter - ethnic conflict .

On DATE ORG abrogated CARDINAL of FAC on the ground that ORG had exceeded its power when it had regulated the display of the flags by its statute as it had not been empowered to do so by the LAW or by law .

On DATE , at TIME , the police removed the flags from the front of FAC . ORG on DATE gave , inter alia , the following account :

During the searches carried out in GPE ... FAC firearms were found , for which their holders did not have a licence ... ”

In footnote no . CARDINAL it was stated :

“ CARDINAL armed persons , ... CARDINAL in ORG [ who were watching over the NORP flags ] were detained and the following firearms were confiscated - semi - automatic guns “ PERSON without a number , calibre PERSON ; PERSON , model no . CARDINAL , without a number , calibre CARDINAL ; and “ TT ” -CARDINAL , calibre MONEY which were found in the kitchen , the toilet and the corridor of the private office of the chairman of the FAC ” - end of the footnote .

The report goes on :

“ At TIME ... , without any reason a group of CARDINAL citizens , by use of physical violence , projectiles [ rocks and stones ] , metal sticks and “ chemical substances ” [ Molotovs’ cocktails and teargas ] attacked the police [ apparently positioned nearby FAC ] and ... breached the public order and peace in the town .

The police used “ chemical substances ” AF-CARDINAL and AG-CARDINAL [ teargas ] , truncheons and physical force . The public order was quickly restored , but other people from the nearby villages [ who arrived ] in an organised manner joined the crowed which became larger . According to our estimations , at TIME a crowed of CARDINAL people gathered in front of FAC .

... at around TIME five persons were detained , CARDINAL of whom were citizens of GPE and all CARDINAL bottles with Molotovs’ cocktails were found . Since [ the leaders ] could no longer use Molotovs’ cocktails to heat - up the crowed they started shouting : “ GPE , GPE ” .

At around TIME the first smoke bomb was thrown nearby the positions of the police , and after a while the second smoke bomb was thrown [ at the police ] . The visibility reduced by the smoke bombs provoked the extremists to open fire with automatic guns .

... one of the policeman was seriously injured and urgently taken to hospital .

After TIME of intensive firing from both sides , the Ministry had not received any information that anybody from the extremists or from the crowed had been killed or injured in the interim . No deaths or injuries were reported until then and later [ as a result of ] the request of the parents of CARDINAL victims an autopsy was not ordered by the investigating judge , therefore , the possibility to clarify the circumstances ( time , place , manner , etc . ) surrounding their deaths was excluded .

Around TIME the firing had stopped and the police restored the peace in the town .

... the police searched the private offices of the chairmen of FAC ... in ORG and the houses of the CARDINAL “ guards ” of the flag in front of FAC ( CARDINAL automatic guns and a big quantity of ammunition were found ) .

In the private office of the chairman of the Gostivar Town Hall the police , inter alia , found documents concerning the “ crises headquarters and its regional branches ” which were set up in case of an attempt to remove the NORP flag . The way the headquarters were structured justifies the fear that [ the people involved were ready ] to put up armed resistance .

In footnote no . CARDINAL of the report it was said :

“ In CARDINAL of the buildings from where it was fired on the police , large quantities of medicines and other medical equipment for an intravenous drip , analgesic drugs , antibiotics , [ medicines ] against dehydration , ampoules against excessive bleeding , etc , were found ... ” - end of the footnote .

The report further continues :

“ In the ORG hospital CARDINAL patients seriously or slightly injured were registered DATE ...

On DATE CARDINAL injured persons requested medical assistance at FAC ... On DATE other persons requested medical assistance at FAC ...

On DATE the police searched the applicant ’s home and seized CARDINAL guns and some documents , including DATE on the set up of the central crises headquarters and its regional branches ; a list of persons from different municipalities who were responsible for different tasks , i.e. , communication and propaganda , shelters for injured , finances , transport and security of the flag ; and a copy of the applicant ’s speech delivered on DATE .

The police had requested the applicant several times to address the citizens , but the applicant had allegedly agreed to do so only after the NORP flag was removed from the front of FAC , the police forces withdrawn and detained persons released . At that occasion the applicant also allegedly stated that DATE the NORP flag would be flown as the official one and not only as the flag of a minority . Around TIME he addressed the people via a local TV station following which the riots stopped .

On DATE the applicant was detained pending trial and on DATE he was charged with stirring up national , racial and religious hatred , disagreement and intolerance by a public official and with a serious case of organised resistance and the non - execution of a decision or an order of a ORG institution . He was released on DATE .

ORG held hearings on CARDINAL , DATE and DATE .

In addition to hearing several witnesses , the court examined , inter alia , typed and hand - written originals as well as a translation of the applicant ’s speech , a video - tape of the aforementioned meeting , TIME and other documents on the setting up of central crisis headquarters with regional branches , shelters for the injured and a list of persons who took part in those activities .

On DATE ORG found the applicant guilty of : ( a ) stirring up , as a public official , national , racial and religious hatred , disagreement and intolerance for which he was sentenced to DATE of imprisonment ; ( b ) organising resistance against a lawful decision or activity of a ORG institution for which he was sentenced to CARDINAL years’ term of imprisonment ; and ( c ) non - execution , as a public official , of a ORG decision for which he was sentenced to CARDINAL PERSON term of imprisonment . The overall sentence was DATE and CARDINAL months’ term of imprisonment .

The offence of stirring up , as a public official , national , racial and religious hatred , disagreement and intolerance had been made out by the failure of the applicant , who had been an elected mayor , to inform ORG and the central Government that the decision to display the flags of GPE and GPE in front of FAC had been unconstitutional . He had implemented such an unlawful decision and had instructed all other public institutions to display the respective flags during the public holidays . He had refused to implement ORG interim order and decision and had organised a public meeting under the motto “ to defend the official use of the national flag ” at which the anthem of GPE had been played and the flag of GPE displayed .

Moreover , at the meeting he , inter alia , had stated :

“ we shall give our lives but not our flag ” , “ we do not recognise the decisions of the Constitutional Court ” ; ” “ The NORP flag was flown in front of many troops , i.e. , partisans’ , ORG [ NORP movement which occupied western part of the Former GPE during the Second World War ] and in front of other NORP troops which were always fighting for the liberation of our territories . Our territories in [ the Former GPE of ] GPE are our territories , this should be acknowledged once and for all and on these territories our flag will always be flown ” .

The court held that the applicant had called and organised the citizens of NORP origin to protect the respective flag with their lives , thereby , he had encouraged the violent events of DATE in which CARDINAL lives had been lost , many citizens injured and considerable damage caused . He had caused a feeling of insecurity and fear among the citizens of NORP origin . He had been aware in advance of the serious consequences which his speech might have and had actually provoked .

There had been a connection between the meeting of DATE and the events of DATE as it was clear from the evidence that the set up of the central crisis headquarters , shelters for the injured , TIME shifts and different strategies how to defend the flag had been planned and undertaken by the applicant .

Furthermore , the CARDINAL villagers who had been “ on duty ” to protect the flag on TIME gave evidence that a person who had identified himself as being a messenger of the applicant had asked CARDINAL of them , PERSON , to be on the TIME shift of CARDINAL DATE for the protection of the flag of GPE . For this purpose he had received a proxy with the stamp and signature of the applicant . The name of the second witness PERSON had also been put on the proxy . In the Town Hall Mr F. and Mr B. had been instructed by PERSON from the village of PERSON to watch over the flag until TIME and to inform the applicant in case they noticed something suspicious . Mr F. had been in a possession of a gun - “ PERSON ” , calibre CARDINAL with no licence .

The court concluded that the applicant was determined to protect the flag of GPE despite ORG decision . As an elected mayor of a town with mixed population instead of promoting an inter - ethnic co - operation and tolerance he had called the citizens of NORP ethnic origin to resist a lawful police action and had organised armed resistance against the implementation of ORG decision .

The applicant appealed to ORG . He argued that his rights to freedom of expression and freedom of assembly guaranteed by ORG DATE had been violated . The main reason to organise the meeting of CARDINAL DATE had been to express his discontent with ORG interim order of CARDINAL DATE . The violent events of DATE had not been provoked by his speech and actions but by the police action . The “ civil night shifts ” had been organised to watch over and report if somebody or the police attempted to remove the flags .

On DATE ORG upheld the lower court ’s judgment . The sentence for having stirred up , as a public official , national , racial and religious hatred , disagreement and intolerance was reduced to CARDINAL years’ imprisonment ; the sentence for having organised resistance against a lawful decision or activity of a ORG institution was reduced to CARDINAL GPE imprisonment ; and the sentence for not having executed , as a public official , ORG decision was reduced to CARDINAL years’ imprisonment on the ground that the applicant had no previous criminal record . The applicant ’s overall sentence was reduced to DATE imprisonment .

The court held that the applicant was not punished because he had expressed his opinion or organised an assembly , but because he , as a public official , had stirred up national , racial and religious hatred , disagreement and intolerance by his speech of DATE addressed to the citizens of NORP origin by which he encouraged a group of citizens to criminal activities . As a result there were public riots and disorder on DATE and DATE . Furthermore , he , as a public official , had refused to execute ORG decision and had organised resistance against a lawful decision and activity of a ORG institution . In particular , he had planned and set up central and regional branches of the crisis headquarters and armed shifts for the protection of the flag of GPE .

On DATE ORG dismissed the applicant ’s appeal on points of law , holding that the lower courts’ judgments were precise , consistent and reasoned .

On DATE the applicant availed himself of his right to submit constitutional complaint concerning the alleged violation of his right to freedom of expression .

On DATE ORG dismissed his complaint . The court found , inter alia , that : a ) the applicant had not informed ORG and the Government about the unconstitutionality of the decision to display the flags of ORG and GPE and had implemented it ; b ) had not implemented the interim order of ORG DATE ; c ) at the public meeting which had been organised by him and where he delivered his speech , the NORP anthem had been played , the flag of GPE flown , but the NORP flag had not been flown ; d ) from the content of his speech it was clear that he had conveyed a message that the NORP population was endangered , that it should fight to defend the flag and promised that ORG would become an NORP town ; e ) organised armed shifts and central and regional headquarters for the protection of the flag of GPE and planned resistance in case of an attempt for its removal ; and f ) prompted by the applicant ’s speech and actions the citizens of NORP origin offered armed resistance on DATE which resulted in CARDINAL lives being lost , many people injured and substantial material damage being caused .

The court , inter alia , stated :

[ The limits of the right to respect for freedom of expression as provided by LAW read as a whole , as well as , the Convention are based on ] the enforcement of the principle of legality set out in LAW ( “ No person may be punished for an action which was not considered as an offence by law , or other legislation prior to being committed , and for which no sanction has been foreseen ” ) together with the proscription of actions that impinge upon the rights and freedoms of others and other values guaranteed by LAW [ that should be ] proportionate to the need in a NORP society . ... this is foreseen in LAW of GPE , which sets out the basis and limits of the criminal punishment , [ and ] under which “ The protection of freedoms and rights of peoples and of other fundamental values , and the enforcement of sanctions [ that should be ] proportionate to the need to prevent crime provide for the basis and definition of the legal characterisation of criminal offences and sanctions .

In particular , the way the applicant made a presentation in public and expressed his opinion , the words he used , the place of his appearance , his position , the aim he wished to achieve and the consequences ... , as well as , the actions he undertook before and after the protest [ examined ] as a whole represent an action which is directed against legal order as basis for the enjoyment of all freedoms and rights , and it matches the legal characterisation of the criminal offences of which he had been found guilty and sentenced . The circumstance that the criminal offences had been made out by way of action which at its surface appeared to be an enjoyment of the right of freedom of expression does not represent a ground to justify the applicant ’s guilt concerning the criminal offences committed , as it transpires from the facts of the case that his action had resulted in loss of the very content of the public expression as guaranteed and protected by LAW . The reason for that , as transpires from the facts of the case , is that the applicant with his publicly expressed opinion had not given his intellectual or political stance , nor had [ his action ] represented a way of intellectual or political persuasion of the persons attending the assembly , but had directly called the citizens of NORP ethnic origin to disobey or , evenmore , fight against public order , thus causing intolerance , friction and hatred among the citizens of ORG in the situation of already existing sensitive inter - ethnic tension , and the feeling of insecurity among the citizens of NORP ethnic origin , as well as , among the citizens of NORP ethnic origin , which all together had the event of DATE as its tragic epilogue ... ”

On DATE the ORG adopted LAW following which the applicant was granted amnesty and dispensed from having to serve his prison sentence . He was released on DATE after having served DATE and DATE .

LAW guarantees the freedom of belief , conscience , opinion and public expression . LAW guarantees the right to peaceful assembly . LAW and CARDINAL provide that ORG is competent to decide on the conformity of LAW and decisions with the LAW and the laws , whereas § CARDINAL of the same Article sets out ORG competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication , conscience , opinion and public expression , political association and activities , as well as prohibition of discrimination on the grounds of gender , race , religion or national , political or social affiliation .

Article CARDINAL provides , inter alia , that the citizens directly and through representatives participate in the decision - making in respect of the issues of local relevance . This concerns in particular : the urban planning , communal activities , culture , sport , social security and child care , nursery , primary education , basic health care and other fields determined by the respective law in the units of local self - government .

Article CARDINAL on stirring up national , racial and religious hatred , disagreement and intolerance , as far as relevant , provides as follows :

“ CARDINAL . Any person who stirs up national , racial and religious hatred , disagreement and intolerance by coercion , ill - treatment , duress , who insults national , ethnic and religious symbols , or damages monuments and cemeteries , or in any other way stirs up national , racial and religious hatred , disagreement and intolerance shall be punished with CARDINAL to CARDINAL years’ imprisonment .

A person who commits the offence set out in LAW of this section by abusing his official position or power and thereby causes riots and violence against people or huge material damage shall be punished with CARDINAL to CARDINAL years’ imprisonment . ”

Article CARDINAL on the non - execution of a judicial decision , as far as relevant , provides as follows :

Any official or person who is under a duty to execute a decision of ORG and who refuses to do so shall either be fined or punished with up to CARDINAL years’ imprisonment .

A person who commits the offence set out in LAW shall be punished with one to CARDINAL years’ imprisonment when the committed offence seriously impinges upon the rights of others or causes a considerable damage . ”

Article CARDINAL on organising resistance , as far as relevant , provides as follows :

“ CARDINAL . A person who organises other people to offer resistance or encourages them to disobey a lawful decision or an order of a State body shall be fined or punished with up to CARDINAL years’ imprisonment .

A person shall be sentenced to from CARDINAL to CARDINAL years’ imprisonment if he does not execute a lawful decision or an order of a ORG body or ... when the offence has been committed by a leader of a group . ”

Article CARDINAL provides , inter alia , that a person sentenced to a term of imprisonment or found guilty but dispensed from having to serve a prison sentence shall have the right to be compensated for being unlawfully convicted provided that on the re - opening of the criminal proceedings against him the court decides to terminate them or the person is being acquitted .

Article CARDINAL provides , inter alia , that a person shall have the right to be compensated for being unlawfully detained if : a ) he has been detained pending trial , but the criminal proceedings against him are terminated or he is being acquitted ; and b ) he has already served his prison sentence but on the re - opening of the criminal proceedings against him he was sentenced to a shorter term of imprisonment , or not sentenced to a term of imprisonment .

The law provides , inter alia , that the ORG flag may only be displayed during the bank holidays , public celebrations , sport and cultural events and private celebrations of the citizens .

Section CARDINAL of the Law on ORG provides that when a local council adopts a decision or regulation which contravenes the LAW or the laws the mayor is under a duty to report this to the Government within DATE from DATE the impugned decision or regulation is adopted .

Section CARDINAL of LAW of DATE grants amnesty to all persons convicted under Articles CARDINAL , CARDINAL and CARDINAL of the Penal Code for having stirred up national , racial and religious hatred , disagreement and intolerance , and/or for not having executed a judicial decision , and/or for having organised other people to resistance and disobedience of lawful decisions , or orders of a ORG body . LAW provides that the prison authorities where the convict , referred to in LAW CARDINAL of this Act , is serving a prison sentence shall , ex officio , start the proceedings for his liberation .

Article CARDINAL provides that a person who has been granted amnesty shall no longer be criminally prosecuted for that offence , or shall have his or her sentence reduced accordingly , or shall be dispensed from having to serve a sentence . In addition , the judgement against him or her might be deleted from the police record .


Remainder inadmissible;Violations of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

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

The applicant was born in DATE and lived until his arrest in the town of PERSON in LOC . He is now serving his prison sentence in the correctional colony in the village of GPE , GPE .

On DATE officers of the GPE town police department arrested the applicant and brought him to the temporary detention unit of the LOC town police department . A police investigator informed the applicant that he had been arrested on suspicion of aggravated robbery and that a prosecutor had authorised his detention on DATE . The applicant , having been informed of the rights of accused persons , including the right to legal aid , refused legal assistance because he considered himself innocent , and signed a record confirming his refusal . During the subsequent interview the applicant denied the accusations and consistently maintained his innocence .

On DATE the applicant , who was still unrepresented , had a confrontation interview with a co - accused , PERSON , at which he was assisted by a lawyer . On a number of occasions the applicant unsuccessfully requested the investigating authorities to hold confrontations with other co - defendants , witnesses and victims .

On DATE the applicant took part in a voice identification parade . The parade was performed in the presence of the applicant ’s lawyer and CARDINAL attesting witnesses . The victim was asked to identify the alleged perpetrator by his voice . CARDINAL other individuals took part in the parade . The applicant alleged that they had had very strong accents because CARDINAL of them was of NORP ethnic origin and the other one was NORP .

DATE the investigator served the applicant and his counsel with the bill of indictment and allowed them to study the case file . On DATE the investigator closed the pre - trial investigation and sent the case to ORG for trial .

On DATE ORG remitted the case to the investigating authorities , finding that the applicant had not had sufficient time to study the file . The applicant was granted DATE for examination of the file . In DATE ORG accepted a request from the applicant ’s counsel , PERSON , and granted her and the applicant DATE to review the file .

On DATE the prosecutor asked the NORP ORG to remit the case for an additional pre - trial investigation in order to correct certain procedural defects . The applicant objected and applied for release on his own recognisance . On DATE ORG granted the prosecutor ’s request and dismissed that of the applicant .

On DATE the ORG quashed the decision of DATE in the part concerning the remittance of the case to the investigating authorities , and ordered that ORG should commence the trial .

DATE the first trial hearing was held . The applicant ’s lawyer unsuccessfully asked ORG to exclude from evidence certain items including the record of the applicant ’s voice identification parade .

On DATE the NORP ORG found the applicant guilty of several counts of aggravated robbery committed within a group of individuals and sentenced him to DATE imprisonment .

The applicant ’s lawyer , PERSON , appealed .

The Kaliningrad Regional Court fixed the first appeal hearing for DATE . The applicant ’s lawyer , PERSON , failed to appear and the applicant asked for an adjournment . ORG granted his request and postponed the hearing until DATE .

On DATE the applicant , assuming that PERSON could no longer participate , asked ORG to appoint another counsel to assist him during the appeal proceedings . The Government submitted that ORG had not responded to the applicant ’s request , acting in accordance with well - established judicial practice . According to the Government , at the material time the domestic courts erroneously considered that LAW did not require them to appoint legal - aid counsel to represent defendants in appeal proceedings .

On DATE ORG upheld the applicant ’s conviction .

On DATE the applicant was placed in the temporary detention unit of the NORP town police department , where he remained until DATE . DATE and DATE he was detained in the unit CARDINAL times , the shortest period of his detention lasting DATE and the longest one CARDINAL . The aggregate length of his detention in the unit amounted to DATE and DATE .

NORP In his application form the applicant alleged that he had usually been detained in a cell measuring QUANTITY and accommodating CARDINAL detainees . In his observations lodged on DATE , however , he amended his description , insisting that he had been kept in a cell measuring QUANTITY which housed CARDINAL inmates . The remaining description of the conditions of his detention in the unit did not vary . In particular , the applicant argued that inmates had taken turns to sleep owing to the shortage of sleeping places . No bedding was provided . The cell had a window QUANTITY wide and QUANTITY long . The cell was lit by a small bulb . In the absence of artificial ventilation in the cell it was hard to breathe owing to the thick smoke and the humidity . The cell was swarming with insects . There was no heating in DATE . There was no lavatory pan or wash - bowl . Inmates used a bucket as a lavatory pan . They were allowed to clean the bucket twice a day : TIME and at TIME There was no shower room in the detention unit . Inmates were provided with food once a day . In addition , in the morning they were given hot water and in the TIME sweet tea . The detention unit did not have a recreation yard and inmates were therefore confined to their cells day and night .

On DATE the applicant brought an action in tort against the management of the NORP town detention unit and ORG of ORG . He claimed that the conditions of his detention in the unit had been inhuman and had led to a serious deterioration of his health . He also sought leave to appear before ORG .

On DATE the ORG ordered that the applicant should be brought to the hearing fixed for DATE , finding that “ it was necessary to hear him in person as the plaintiff ” .

According to the ORG , the management of the correctional colony where the applicant was detained at the material time refused to comply with the order of CARDINAL DATE because domestic law did not lay down a procedure for transferring convicted prisoners to ensure their participation in civil cases . The management informed the applicant that domestic law did not oblige the authorities to ensure his presence at the hearing .

On DATE the applicant received a letter from ORG . He was informed that a hearing was listed for DATE and that it would be held in his absence because the colony management had not brought him to ORG .

On DATE the ORG ordered a forensic medical examination of the applicant . On completion of the examination , on DATE , the applicant was served with a copy of the expert report and informed that the hearing had been fixed for DATE .

On DATE the NORP ORG partly allowed the applicant ’s action and awarded him MONEY ( RUB , MONEY ) in compensation for non - pecuniary damage . ORG held , in so far as relevant , as follows :

“ [ The applicant ’s ] argument that his right to the established norm of QUANTITY of personal space was violated has been amply proven .

The ... witnesses confirmed that the detention unit has CARDINAL cells ... Cells nos . CARDINAL and CARDINAL each measure QUANTITY m , cell no . CARDINAL measures QUANTITY m and cell no . CARDINAL measures QUANTITY m. [ The applicant ] was detained in cell no . CARDINAL : from CARDINAL to DATE CARDINAL to CARDINAL inmates were detained there , from DATE CARDINAL to CARDINAL detainees ; from DATE to DATE CARDINAL to CARDINAL inmates ; from CARDINAL to DATE inmates ; and from DATE to CARDINAL DATE CARDINAL individuals were kept [ in that cell ] . From DATE TIME [ the applicant ] was detained alone in cells nos . CARDINAL and CARDINAL . The registration log , listing the number of persons detained in the unit in specific cells , fully corroborates this account .

[ The applicant ’s ] allegation concerning insufficient lighting was confirmed . The single small window , which is situated right below the ceiling and is covered by CARDINAL metal sheets with small perforated holes between which a fine metal net is suspended , gives no light . A bulb is situated outside the cell and provides insufficient lighting . The head of the temporary detention unit , PERSON , attempted to carry out renovations in DATE and artificial lighting was installed in the cells ; however , a commission arrived and found that the bulbs had been installed incorrectly , and everything was returned to its previous place ...

[ The applicant ’s ] submission pertaining to the absence of artificial ventilation in the cells and the presence of high humidity levels was also proven . The small window covered with metal sheets with a metal net between them barred access to fresh air ; in DATE , DATE and DATE it was even covered with felt cloth .

The allegation concerning the lack of a lavatory pan and water supply system in the cell was also confirmed . They are not installed in the cells ; [ inmates ] were taken out of the cells twice in TIME , at TIME and TIME ; at those times they could also wash their faces ; for the rest of DATE or night they used a special bucket as [ a lavatory pan ] . As to [ the applicant ] he was frequently taken to the toilet for whatever purpose was required .

[ The applicant ’s ] argument concerning the scarcity of food was not refuted . Food was provided in the detention unit once DATE . In TIME inmates received tea ; lunch was brought in from the municipal cafeteria “ Hope ” in the afternoon ; [ lunch ] consisted of CARDINAL courses based on a given sum per inmate . The abovementioned witnesses did not dispute that food had been provided once a day ...

The sanitary conditions in the detention unit do not comply with sanitary norms . The record of a sanitary inspection of the cells in the detention unit carried out in DATE was destroyed . However , as is clear from [ CARDINAL ] letters sent by the LOC town temporary detention unit to the Head of the LOC district council and the LOC district sanitary inspector [ in DATE ] , the sanitary conditions did not meet personal hygiene standards . The temporary detention unit did not have a contract ... for cleaning of the LOC .

[ The applicant ’s ] argument about the violation of his right to a DATE walk was not refuted . Inmates were not allowed outdoor exercise in the detention unit as it does not have a recreation yard .

[ The applicant ’s ] allegation pertaining to a violation of his right to bathe was fully proven . The detention unit does not have a shower room ; persons detained in the temporary detention unit can not take a shower and there is no provision for such a possibility , as individuals can not be detained in the detention unit for DATE ; there is no hot water [ in the detention unit ] .

The court considers manifestly ill - founded [ the applicant ’s ] submissions concerning insufficient medical assistance . Medical assistance is provided on request to persons detained in the temporary detention unit : either an ambulance is called or inmates are taken to a doctor . The detention unit has a log recording the initial questioning , examination and provision of medical assistance to individuals detained in the LOC town temporary detention unit . [ The applicant ] requested medical assistance as follows : twice on DATE , a body temperature of QUANTITY was recorded and a doctor diagnosed him with bronchitis ; on DATE his blood pressure was taken and treatment was prescribed ; on DATE a fake incident was recorded ; however , medical assistance was subsequently provided and he was sent for examination by a physician ; on DATE he was diagnosed with an acute ulcer and treatment was prescribed ; on DATE medical assistance was provided on CARDINAL occasions and treatment was prescribed ; on DATE medical assistance was provided ; on DATE he was examined but no medical assistance was needed .

The [ applicant ’s ] allegation concerning his detention in the unit for DATE was confirmed . By virtue of LAW of LAW , in force at the time [ the applicant ] was detained , suspects and accused persons could be placed in temporary detention units ... for no longer than DATE within DATE . The DATE time - limit for detention in the temporary detention unit was breached twice ... He was detained for DATE from DATE to DATE and for DATE from DATE to DATE . As a result , in DATE he stayed in the detention unit for DATE ; in DATE [ he stayed ] for DATE and in DATE for DATE .

[ The applicant ’s ] allegations pertaining to lack of an individual sleeping place and extreme cold in DATE in the cell were proven . All witnesses confirmed that [ the applicant ] had not had an individual sleeping place and that there had been insufficient heating in DATE in the cells . The witnesses disputed [ the applicant ’s ] allegation that he had not been provided with a mattress and pillow ; [ the witnesses ] explained that he had always been provided with a mattress and pillow and had had his own blanket .

Accordingly , the court concludes that [ the applicant ’s ] right to be detained in the temporary detention unit in accordance with the established rules and regulations was breached and that he sustained physical and mental suffering .

[ The applicant ’s ] argument that his health was damaged as a result of the poor conditions of his detention in the LOC town detention unit is not proven .

As is clear from the report of the forensic medical examination performed by ORG of LOC , it is impossible to establish a direct causal link between [ the applicant ’s ] detention in the LOC town temporary detention unit and his illnesses .

In determining the amount of compensation for non - pecuniary damage the court has taken into account the degree of liability of the persons responsible , the insufficiency of funds and the level of physical and mental suffering of [ the applicant ] , and considers it necessary to award MONEY in compensation . ”

On DATE the applicant lodged a statement of appeal . He complained , in particular , that ORG had not ensured his presence at the hearings . He also sought leave to appear before the appeal court .

On DATE ORG upheld the judgment of DATE , endorsing ORG reasoning and noting that the applicant ’s presence at the hearings , before either ORG or ORG , was not required .

From DATE to DATE , save for short periods when the applicant was transferred to the NORP town temporary detention unit , he was detained in GPE no . IZ-CARDINAL/CARDINAL detention facility . According to the applicant , that detention facility was built in DATE and no renovation work on the cells had been carried out since .

The Government , relying on a certificate issued on DATE by the director of facility no . PERSON , submitted that during the period in question the applicant had been detained in CARDINAL different cells , measuring from CARDINAL to QUANTITY m. The smallest cell had CARDINAL sleeping places and the largest one had CARDINAL . The Government further noted that the applicant had had an individual sleeping place at all times as the number of inmates per cell had always corresponded to the number of sleeping places .

Citing the information provided by the director of the facility , the ORG further submitted that the cells received natural light and ventilation through a large window which was double - glazed and measured QUANTITY . m. The windows had a casement . Inmates could request warders to open the casement to admit fresh air . The windows were covered by thick bars with so - called “ eyelashes ” , that is , slanted plates QUANTITY apart welded to a metal screen , which gave no access to natural air or light . In compliance with the recommendations of ORG issued on DATE , the latter construction was removed from the windows on an unspecified date . Subsequently , the windows were covered with latticed partitions to ensure “ sound and visual insulation ” . The cells had ventilation shafts . The cells were equipped with lamps which functioned TIME . Each cell was equipped with a lavatory pan , a sink and a tap for running water . The pan was separated from the living area by a QUANTITY - high partition . Inmates were allowed to take a shower once in 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 ” . 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 . On his admission to the facility the applicant was diagnosed with a skin rash and treatment was prescribed . In DATE , DATE and DATE and DATE the applicant underwent treatment for his acute ulcer . The ORG furnished a copy of the applicant ’s medical record and medical certificates .

The applicant did not contest the cell measurements . However , he insisted that the cells had been severely overcrowded and that he had had QUANTITY of living space . Citing statements by inmates who had been detained in facility no . IZ-CARDINAL/CARDINAL , he stressed that the smallest cell in which he had been detained had had CARDINAL sleeping places and the largest one had had CARDINAL bunks . Inmates had to take turns to sleep . They were not provided with bedding . The applicant further submitted that the sanitary conditions had been appalling . The cells were infested with insects but the management did not provide any insecticide . Walls in the cells were covered with thick layer of mould . Pieces of plaster fell from the walls . Relying on colour photographs of the cells , the applicant submitted that the windows were covered with metal blinds which blocked access to natural light and air . In certain cells the windows were not glazed and inmates used plastic film or blankets to cover them in DATE . It was impossible to take a shower as inmates were given TIME and two to CARDINAL men had to use CARDINAL shower head at the same time . That situation was further aggravated by the fact that inmates could only take a shower once DATE . Inmates had to wash and dry their laundry indoors , creating excessive humidity in the cells . They were also allowed to smoke in the cells . The lavatory pan was separated from the living area by a small partition . At no time did inmates have complete privacy . No toiletries were provided . The food was of poor quality and in scarce supply . The applicant further argued that medical assistance had been unavailable .

In DATE the applicant brought an action before ORG of FAC against the facility management and ORG , seeking compensation for damage . In particular , he claimed that the conditions of his detention in facility no . PERSON had been appalling . He also sought leave to appear before ORG .

On DATE ORG decided to stay the proceedings and asked the applicant to produce evidence . That decision was quashed on appeal by ORG and the case was sent back to ORG for an examination on the merits .

On DATE the applicant received a letter dated DATE from ORG , informing him that a preliminary hearing had been fixed for DATE , and that he had the right to appoint a representative or ask ORG to adjudicate the action in his absence . The applicant was also informed that his presence at hearings was not mandatory under NORP law .

On DATE the applicant received a letter from ORG , sent on DATE . He was informed of the first hearing listed for DATE . The remaining text of the letter was identical to the letter of DATE .

The applicant wrote to ORG seeking leave to appear . He explained that he could not appoint a lawyer as he had no funds to pay for his services .

On DATE ORG , in the applicant ’s absence , dismissed the action as unsubstantiated . ORG held , in particular , as follows :

“ ... [ it was ] established that [ the applicant ] , when in the detention facility , had been held in cells which were designed [ to house ] CARDINAL detainees ... , in particular in cell no . CARDINAL measuring QUANTITY . m ... , in cell no . CARDINAL measuring QUANTITY m ... , in cell no . CARDINAL measuring QUANTITY m ... and in cell no . CARDINAL measuring QUANTITY m ... There are no data on the number of inmates in those cells .

... cells had central heating , water supply , a sewerage system , natural and artificial lighting and artificial ventilation . There were CARDINAL - tier bunks with bedding in the cells . The lighting in the cells emitted CARDINAL lux , and the temperature in the cells satisfied the sanitary requirements and was QUANTITY ... At the material time and at present repair work was / is being performed in cells ... Spot - checks of the sanitary conditions in the cells were carried out and no serious violations were established . Detainees clean up their cells once a day ( in the TIME ) ... Medical staff monitored sanitary conditions in cells ...

The cells where the applicant was detained had a lavatory pan and a tap . ... the cells had cell furniture . The walls of the cells were smoothly plastered and painted . Metal plates on the windows were installed in accordance with the requirements ... Inmates were given TIME to take a shower ... If necessary , following a written request , a detainee could be granted additional opportunities to take a shower .

... Detainees were provided with food in accordance with the norms established by the Government of GPE ... ”

On DATE the applicant informed ORG that he wished to appeal against the judgment of DATE . He asked for a copy of the defendant ’s counterclaim and copies of other documents submitted to ORG by the defendant . According to the applicant , the request received no response . The Government , relying on copies of registration logs of incoming and outgoing mail in the correctional colony in which the applicant had been detained at the material time and copies of the applicant ’s handwritten notes confirming receipt of the documents , submitted that the applicant had been served with copies of all documents requested by him from ORG .

On DATE the applicant lodged his statement of appeal , complaining , inter alia , that ORG had failed to ensure his presence at the hearings despite his requests to that effect and that he had had no opportunity to appoint a representative . He further argued that he had not been able to study the materials presented to ORG by the defendant as he had not been served with them . The applicant also sought leave to appear before the appeal court and asked to be provided with legal assistance .

On DATE ORG upheld the judgment of DATE , endorsing ORG reasoning . The applicant was neither present nor represented .

On DATE a local newspaper , “ PERSON v Kaliningrade ” , published an article entitled “ Cranberry Drink ” ( “ Кисель из Клюквы ” ) . The article concerned the killing of a prominent mafia leader in the town of GPE . The reporter described how police officers had chased a stolen car in which the “ driver - thief ” and the mafia leader were travelling . The parts of the article which concerned the applicant read as follows :

“ During questioning the driver - thief PERSON [ the applicant ’s last name was misspelled ] confessed that his accomplice [ the mafia leader ] had most probably “ been using drugs ” and had not understood anything .

The background to that car theft is the following . On CARDINAL May this year CARDINAL unknown persons in masks broke into the flat of a businessman in PERSON . [ They ] stole CARDINAL [ GPE ] dollars . Investigators identified the thieves . Mr PERSON organised the assault , his young girlfriend PERSON was on guard and CARDINAL locals committed the robbery . But CARDINAL of the CARDINAL bandits was arrested – Mr Pr . He gave useful statements and a prosecutor let him go on a written undertaking . Right away Mr Pr . began to receive threats prompting him to change his testimony .

On that DATE Mr M. and the second robber PERSON came to PERSON . ’s home . [ They ] began banging on the door . The man did not open .

But it appears that Mr Pr . forgot to close the door of his car . The engine roared , and when the man ran out into the street , there was no trace of his friends . ”

On DATE the applicant brought a defamation action against the newspaper . He complained that the NORP town police department had provided the newspaper with information concerning his arrest , that he had been called “ a robber ” , “ a bandit ” and “ a rapist ” in the article and that the reporter , in violation of LAW , had informed the public that the applicant had robbed a businessman in PERSON . The applicant also sought leave to appear .

On DATE ORG of GPE dismissed the applicant ’s action . The applicant was neither present nor represented , although a representative of the defendant attended .

The applicant appealed and sought leave to appear .

On DATE the ORG quashed the judgment of DATE and remitted the case for fresh examination . The applicant was not present .

The applicant again requested ORG to ensure his presence at the hearing .

On DATE ORG of FAC , in the applicant ’s absence , dismissed his action , finding that the information published in the article had been correct and corroborated by the findings of the trial court which had convicted the applicant of aggravated car theft on DATE . The reporter had not accused the applicant of any crime ; he had merely described the circumstances that had led to the institution of criminal proceedings against the applicant . Furthermore , ORG stressed that the reporter had never called the applicant “ a rapist ” , “ a bandit ” or “ a robber ” .

The applicant appealed , complaining , in particular , that he had not been able to attend any of the hearings before ORG . He also sought leave to appear before the appeal court .

On DATE ORG upheld the judgment of DATE , accepting ORG reasoning . The applicant was neither present nor represented , while the newspaper ’s representative attended the hearing . With regard to the applicant ’s complaint about his absence from the hearings , ORG held as follows :

“ In the statement of appeal [ the applicant ] asks the court to quash the judgment because the [ District ] court violated his right to “ a fair trial ” as guaranteed by paragraph CARDINAL of LAW , by adjudicating his action in his absence although he had sought leave to appear ...

The arguments concerning the violation by the court of the plaintiff ’s right to personal attendance at the hearings , as guaranteed by LAW , can not be accepted as valid because this right applies to criminal cases . As to civil cases , this right is applicable only to cases of a particular type when it is impossible to adjudicate the action in the parties’ absence . In other cases the LAW does not guarantee the right to personal participation in the adjudication of a civil action . In the present case , the plaintiff ’s personal participation in the adjudication of the action by the court was not necessary , as the subject - matter of the dispute was a newspaper publication and not something directly related to the plaintiff ’s personality .

Moreover , the NORP law in force does not require that plaintiffs who are serving a prison sentence should be brought to hearings for adjudication of their actions . ”

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 the 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 .

Article CARDINAL § CARDINAL of LAW of GPE provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor . Pursuant to Article CARDINAL , ORG agencies and ORG officials shall be liable for damage caused to an individual by their unlawful actions or failure to act . Such damage is to be compensated at the expense of the federal or regional treasury . ORG CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated irrespective of any award for pecuniary damage .

The Code of Civil Procedure of GPE provides that individuals may appear before a court in person or act through a representative ( LAW ) . The court may appoint an advocate to represent a defendant whose place of residence is not known ( LAW . LAW ( Law no . CARDINAL-FZ of DATE ) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health ( section CARDINAL § CARDINAL ) .

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( LAW ) . The LAW does not mention any possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant .

On several occasions ORG has examined complaints by convicted persons whose requests for leave to appear in civil proceedings were refused by the courts . It has consistently declared the complaints inadmissible , finding that the impugned provisions of LAW and LAW did not , as such , restrict the convicted person ’s access to court . It has emphasised , nonetheless , that the convicted person should be able to make submissions to the civil court , either through a representative or in any other way provided by law . If necessary , the hearing may be held at the location where the convicted person is serving his or her sentence , or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant ’s submissions or carry out any other procedural steps ( decisions no . CARDINAL-O of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) .

By virtue of ORG DATE and CARDINAL of the Code of Civil Procedure , a court may hold a session outside the courthouse if , for instance , it is necessary to examine evidence which can not be brought to the courthouse .

LAW , in so far as relevant , reads as follows :

“ CARDINAL . Participation of legal counsel in the criminal proceedings is mandatory if :

( CARDINAL ) the suspect or the accused has not waived the right to legal representation in accordance with LAW ;

( CARDINAL ) the suspect or the accused is a minor ;

( CARDINAL ) the suspect or the accused can not exercise his right of defence by himself owing to a physical or mental handicap ;

( CARDINAL ) the court proceedings are to be conducted [ in the absence of the accused ] in accordance with LAW of this Code ;

( CARDINAL ) the suspect or the accused does not speak the language in which the proceedings are conducted ;

( CARDINAL ) the suspect or the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty ;

( CARDINAL ) the criminal case falls to be examined in a jury trial ;

( CARDINAL ) the accused has filed a request for the proceedings to be conducted [ without a hearing ] under LAW of this Code ;

In the circumstances provided for by paragraph CARDINAL above , unless counsel is appointed by the suspect or the accused or his lawful representative , or other persons at the request or with the consent of the suspect or the accused , it is incumbent on the investigator , the prosecutor or the court to ensure the participation of legal counsel in the proceedings . ”

Article CARDINAL of the Code provides that a suspect or an accused may refuse legal assistance at any stage of the criminal proceedings . Such a waiver may only be accepted if made on the initiative of the suspect or the accused . The waiver must be filed in writing and must be recorded in the official TIME of the relevant procedural act . The refusal of legal assistance does not deprive the suspect or accused of the right to ask to be assisted by counsel during further procedural steps in the criminal case . The admission of a lawyer may not lead to the repetition of the procedural steps which have already been performed by that time .

Article CARDINAL of the Code provides that the appeal court examines appeals with a view to verifying the lawfulness , validity and fairness of judgments . Under LAW and CARDINAL of the Code , the appeal court may directly examine evidence , including additional material submitted by the parties .

Article CARDINAL of the Code provides that on receipt of the criminal case and the statements of appeal , the judge fixes the date , time and place of the hearing . The parties must be informed of the date , time and place of the hearing no later than DATE before the scheduled hearing . The court determines whether the prisoner should be summoned to the hearing . If the prisoner has expressed the wish to be present at the examination of his appeal , he has the right to participate in person or to state his case via video link . The manner of his participation in the hearing is to be determined by the court .

Examining the compatibility of LAW , the Constitutional Court ruled as follows ( decision no . CARDINAL-O of DATE ) :

“ LAW , which describes the circumstances in which the participation of defence counsel is mandatory , does not contain any indication that its requirements are not applicable in appeal proceedings or that the prisoner ’s right to legal assistance in such proceedings may be restricted . ”

That position was subsequently confirmed and developed in CARDINAL decisions delivered by ORG on DATE . The court found that free legal assistance for the purpose of appellate proceedings should be provided on the same basis as during the earlier stages of the proceedings and was mandatory in the situations listed in LAW . It further underlined the obligation of the courts to secure the participation of defence counsel in appeal proceedings .

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 . ”


Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The case was referred to the ORG by ORG ( " the Commission " ) on DATE , and by ORG ( " the Government " ) on DATE . It originated in an application ( no . CARDINAL ) against GPE lodged with the ORG by a NORP national , Mr PERSON , on DATE .

For the facts of the case reference should be made to the principal judgment of DATE ( Series A no . CARDINAL-B , pp . DATE , paras . DATE ) . In that judgment the ORG held there had been a breach of LAW , as ORG , ruling on DATE after the case had been remitted to it by ORG , had without giving reasons and merely implicitly refused an application by Mr PERSON ’s defence counsel that CARDINAL witnesses should be called ; basing its decision solely on the case - file and the defendant ’s oral statements , it had increased the sentence passed by ORG on DATE , after the applicant ’s acquittal for want of evidence by ORG on DATE ; and ORG had on CARDINAL DATE dismissed Mr PERSON ’s second appeal ( ibid . , pp . DATE , paras . CARDINAL of the judgment and point CARDINAL of the operative provisions ) .

Mr PERSON claimed , as " just satisfaction " , compensation for damage and reimbursement of costs and expenses , but requested the ORG to hold that the question of the application of LAW ) was not ready for decision , in view of the possibilities which NORP internal law might offer for remedying the consequences of the violation and of the prospect of a friendly settlement .

The ORG accordingly reserved the said question . It invited the ORG and the applicant to submit to it in writing within DATE their observations on the point and in particular to communicate to it any agreement which they might reach ( ibid . , pp . CARDINAL , paras . CARDINAL of the judgment and point CARDINAL of the operative provisions ) .

The registry received the applicant ’s written observations on DATE , the ORG ’s on DATE , and those of ORG on DATE . These showed among other things that the applicant and the Government had been unable to agree on a figure and that recourse had not been had to LAW ( cf . the GPE v. GPE judgment of DATE , Series A no . CARDINAL , pp . CARDINAL , paras . CARDINAL - CARDINAL , and the FAC v. GPE judgment of DATE , Series A no . CARDINAL-B , pp . DATE , paras . CARDINAL - CARDINAL ) .

ORG decided not to hold a hearing .


Violation of Article 11 - Freedom of assembly and association

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in GPE .

NORP In DATE a presidential election was held in GPE with its first and second rounds taking place on DATE and DATE respectively . The applicant acted as an authorised election assistant ( վստահված անձ ) for the main opposition candidate in this election . Following the first and second rounds of the election , a series of protest rallies were organised in GPE by the opposition parties .

According to the materials of the case , the applicant attended CARDINAL of these rallies on DATE . The applicant denied this fact and alleged that he had not attended the rallies .

On DATE at TIME the applicant was visited at home by QUANTITY police officers from LOC ՀՀ ոստիկանության ORG բաժին ) . He was informed that the chief of the police department wished to speak to him and was taken to the police station .

At the police station an administrative case was initiated against the applicant who was charged under LAW ( Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “ the CAO ” ) with minor hooliganism on the ground that he had participated in the unauthorised demonstration of DATE and had violated public order .

On DATE , TIME , the applicant was taken to the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) . There he was brought before Judge PERSON who , after a brief hearing , found the applicant guilty as charged and sentenced him to DATE of administrative detention , finding that :

“ On DATE on FAC in GPE [ the applicant ] participated together with a group of people in an unauthorised demonstration and march , and violated public order . ”

The decision stated that it could be protested against by the prosecutor under LAW ORG .

The applicant was taken to a detention facility to serve his sentence .

NORP The applicant alleged that on DATE he was taken from his cell to another room . On the table in this room there were CARDINAL sample applications , CARDINAL of which was handed to him with the instruction to write and sign his name on it . The content of the application was a statement which declared : “ I regret what I have done and request a review of my case . ” This request was addressed to the President of the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ ) . The applicant alleged that he had to sign this document , even though he disagreed with its contents , in order to be released and to be able to perform his authorised election assistant duties in the second round of the presidential election .

On DATE the President of the Criminal and Military Court of Appeal reviewed the applicant ’s conviction , finding that :

“ [ The applicant , according to the decision of ORG , was subjected to administrative detention ] ... for attending an unauthorised demonstration in LOC of GPE on DATE and violating public order .

Having familiarised myself with [ the applicant ’s ] appeal and the materials concerning the administrative offence , I find that the penalty imposed on [ the applicant ] must be changed . ”

NORP The President changed the penalty to an administrative fine of CARDINAL NORP drams ( ORG ) ( MONEY ( ORG ) at the material time ) and ordered the applicant ’s release .

On TIME the applicant was released from detention after having served about three days of his sentence .

On DATE the applicant sent applications to ORG ( ՀՀ արդարադատության նախարարություն ) , ORG ( ՀՀ վճռաբեկ դատարան ) and ORG ( ՀՀ նախագահին առընթեր մարդու իրավունքների հարցերի հանձնաժողով ) , arguing that he had never participated in any demonstrations , and in particular the one held on DATE , and seeking a review of his case .

By a letter of DATE ORG forwarded the applicant ’s application to be dealt with by the Criminal and Military Court of Appeal .

By a letter of DATE ORG informed the applicant that the rights of persons charged with an administrative offence were defined in LAW ORG and should have been invoked by the applicant during the examination of his case . The letter further stated that the decision of CARDINAL DATE could be protested against by the prosecutor .

By a letter of DATE the President of the Criminal and Military Court of Appeal informed the applicant that his application of DATE could not be examined , since the applicant had missed the prescribed DATE time - limit for appeal .

By a letter of CARDINAL DATE ORG gave a similar reply to the applicant ’s application addressed to ORG .

On DATE the applicant again complained to ORG that the decision of CARDINAL DATE had been unlawful since he had not participated in any demonstration .

By a letter of CARDINAL DATE ORG gave the same reply .

On DATE ORG ( Դատական ակտերի հարկադիր կատարման ծառայություն – “ the DEJA ” ) instituted enforcement proceedings on the basis of an execution writ issued by ORG on DATE .

NORP The applicant alleged that , around that period , he was visited at home by an officer of the LOC who informed him that the decision of CARDINAL DATE had been reviewed on DATE and a fine had been imposed . He further alleged that only then did he become aware of the existence of the decision of the President of the Criminal and Military Court of Appeal of CARDINAL DATE . The applicant paid the fine .

On DATE the ORG decided to terminate the enforcement proceedings since the terms of the execution writ had been complied with .

For a summary of the relevant domestic provisions and international documents and reports see the judgment in the case of ORG v. GPE ( no . GPE , § § DATE , DATE ) .


CASE OF MATUSHEVSKYY AND MATUSHEVSKA v. UKRAINE

Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE the applicants’ DATE son , PERSON ( “ GPE ” ) , was placed in ORG no . CARDINAL ( “ the GPE ” ) following his arrest on suspicion of a drug - related offence .

On DATE was examined by a medical commission which found him to be in good health .

On DATE a drug specialist found him to be in unstable remission from drug addiction .

On DATE GPE was placed in cell no . CARDINAL , which was shared by CARDINAL inmates . It was his sixth transfer to a different cell in the GPE .

On DATE at TIME , the inmates of cell no . LOC knocked on the door and informed the prison guard that GPE had fallen from the upper bed and had fainted . TIME , a medical attendant and the on - duty doctor arrived . According to an entry made by them in GPE ’s medical record , they administered the following injections to him : cordiamin , cortisol , mezaton , caffeine and atropine . He was then transported to the medical unit , still alive . At CARDINAL p.m. an ambulance , for which the prison administration had called , arrived ; and at CARDINAL TIME was pronounced dead . According to the medical certificate written by the PERSON administration and the doctors recording GPE ’s death , a closed craniocerebral injury was indicated as the preliminary cause of death .

On DATE inmates , as well as the personnel involved , gave written statements concerning the matter to the GPE ’s governor . The detainees explained that there had been no incidents in the cell , that GPE had accidentally fallen from his bed and that they had unsuccessfully tried to bring him back to consciousness by putting a wet towel on his forehead . According to them , they had promptly called for a doctor , who , in turn , had arrived without delay . The inmates also submitted that TIME before his death ORG had complained of headache . CARDINAL of the detainees noted that GPE had occasionally mentioned that he suffered chest pains .

In TIME on the same date , CARDINAL DATE , the PERSON administration examined the scene and informed the GPE police and ORG ( “ the LOC ” ) of GPE ’s death .

On DATE at TIME , the PERSON administration sent a telegram to the applicants informing them that their son had died and that they could collect his body from the GPE morgue .

According to the applicants , at TIME on CARDINAL DATE , before the telegram had reached them ( on DATE ) , they received an anonymous phone call from a person who had introduced himself as a detainee at the GPE . He had allegedly stated that GPE had been killed by GPE officers .

The applicants immediately got in contact with the local morgue , which confirmed that GPE ’s body was there . However , according to the applicants , its staff refused to show them his body .

The first applicant also informed the LAW of the allegations received in the anonymous phone call and sought the opening of a criminal investigation into the matter .

On DATE , DATE , ORG found that there was no indication of a homicide and terminated the investigation .

On DATE , from TIME , the first applicant waited outside the morgue while an autopsy of GPE ’s body was going on . He saw some people there ( whom he later found out were from the GPE ) and allegedly heard CARDINAL of them saying on the phone : “ Everything is fine , the haematomas have been removed and the bruises behind the ears have been retouched . There is something there with his heart and lungs . ” The applicant had the impression that the conversation had been about his son .

After the autopsy was completed , the first applicant was allowed to collect GPE ’s body . According to him , he discovered the following injuries on it : GPE ’s chest , shoulders , arms and legs , as well as his groin area , were covered with bruises , his fingertips were bluish in colour , the phalanx bone of the little finger on his left hand was broken , his face was swollen and his nasal bridge was deformed , the hair on his temples was missing as if it had been torn out , and there were bloodstains on his earlobes . The applicant asked the doctor about the injuries and was told that they were the signs of post - mortem lividity .

The morgue issued a death certificate to the first applicant indicating that the cause of death had “ not been preliminarily clarified ” .

Later on DATE , the applicants discovered in their mailbox a letter from an anonymous “ detainee ” , according to which GPE had been beaten up by one of the inmates , T. , on police instructions with a view to extracting a confession from him , and had died of the injuries he had sustained . It was noted in the letter that the PERSON administration was intimidating the witnesses in order to conceal the real cause of death . However , the witnesses would give truthful testimonies if questioned by the prosecutor in absence of GPE staff .

On CARDINAL DATE the first applicant again complained to the ORG that his son had been killed in the GPE . On an unspecified date shortly thereafter the prosecutor questioned him as to what made him think that GPE ’s death had been a violent one . The first applicant referred to the information received from the anonymous phone call and letter . He also noted that his son had not made any complaints about his health . Furthermore , on DATE , the last time that the second applicant had passed over a food parcel for GPE , she had enquired with the GPE medical staff whether he needed any medicine but had been told that he did not require any .

On DATE , DATE , the assistant to the GPE governor , who had been on duty when GPE had died , gave a written statement to the ORG , according to which : there had been no incidents in cell no . CARDINAL on CARDINAL May ; no coercive measures had been applied to any detainees ; and he had not seen any injuries on GPE ’s body . The senior security officer on duty made a similar statement .

On DATE T. and CARDINAL other inmates repeated their previous account of the events ( see paragraph CARDINAL above ) to the LOC , without specifying what aid they had provided to GPE before the medical attendant ’s arrival , which had been TIME after GPE ’s fall . The inmates from the neighbouring cells , nos . CARDINAL and CARDINAL , stated that they had not heard any noise from cell no . CARDINAL on DATE . The prosecutor also questioned detainee PERSON , with whom GPE had been sharing cell no . CARDINAL before his transfer to no . CARDINAL . , and who , according to the applicants , might have had additional information about the circumstances of his death . PERSON submitted that GPE had not wanted to encounter T. and had therefore been unwilling to be transferred to cell no . CARDINAL . ORG had allegedly warned the administration about a possible conflict between GPE and GPE , as , according to him , they had been “ opposites in the criminal world ” .

On CARDINAL DATE the prosecutor questioned the GPE governor as regards , in particular , the reasons for GPE ’s frequent transfers from one cell to another . The governor stated that ORG had had a negative influence on other detainees , without giving further details . He submitted that GPE had neither opposed his transfer to cell no . CARDINAL nor had he later asked to be transferred to another cell . T. and GPE had not shared cells before . The governor also contended that he had not received any information about conflicts between them or about any wrongdoing on the part of T. According to him , the atmosphere in cell no . CARDINAL had been calm .

On DATE T. stated that he had known GPE since DATE because they had lived in the same town . According to him , they had been neither friends nor enemies , rather just acquaintances . He also supplemented his earlier statements to the effect that the inmates had tried to bring GPE back to consciousness by pouring water on him and by rubbing his hands , feet and ears .

On DATE a toxicologist of ORG issued a report , according to which no alcohol had been discovered in GPE ’s blood .

On CARDINAL DATE another forensic medical report was issued by a histologist following an examination of GPE ’s body tissues . It concluded that the deceased had been suffering from : swelling of the lungs and haemorrhaging , focal serous bronchopneumonia , chronic leptomeningitis , fatty liver disease , chronic persistent hepatitis , signs of chronic nephritis , and atheromatosis of the aorta .

On DATE ORG refused to open a criminal case regarding the death of GPE for want of indication of a crime .

On DATE the GPE Deputy Prosecutor quashed the aforementioned decision as having been delivered prematurely .

On DATE the forensic medical expert who had performed the autopsy gave a written statement to the ORG . He stated that there had been bruises and sores on GPE ’s face , both earlobes , and on the inner parts of both thighs , while no bone fractures or craniocerebral injuries had been discovered . The expert expressed the view that a possible cause of GPE ’s death could have been a heart or lung condition .

On the same date detainee ORG additionally explained that he had wanted to stay in the same cell as GPE because the latter had often received food parcels and had shared them with his cellmates .

On DATE the ORG refused to institute criminal proceedings against the GPE staff in respect of GPE ’s death for a lack of corpus delicti in their actions .

On DATE the Frankivskyy ORG in GPE terminated the pending criminal proceedings against GPE given that he had died . It also issued a separate ruling in which it noted that the circumstances of GPE ’s death warranted a criminal investigation ( it had been informed by the PERSON administration that GPE had died because of a closed head injury ) .

On DATE the ORG quashed the decision of DATE and resumed the investigation . In particular , it noted that it was still necessary to question the ambulance doctors , to analyse the anonymous letter received by the applicants with a view to establishing its author , to question T. as to whether he had suffered any injuries , and to take steps to find out who had telephoned the applicants on DATE .

On DATE the applicants complained to the ORG that the cause of their son ’s death had never been officially established . They pointed out that the accounts of the GPE governor in that regard lacked consistency . Thus , according to them , he had explained that GPE had died because he “ had fallen from his bed ” , subsequently because he “ had fallen ill ” , and , lastly , because he “ had fallen down in the shower ” .

On DATE a forensic medical report was issued , according to which a chemical examination had discovered the presence of an organic substance possibly belonging to a group of amphetamines ( psychostimulant drugs ) in GPE ’s body . A precise identification of the substance was impossible . At the same time , it was noted in the report that the examination had not revealed any traces of caffeine or atropine , amongst other substances .

On DATE another forensic medical examination ( started on CARDINAL May ) was completed . It found the following injuries on GPE ’s body : CARDINAL sores , one on each side of the nose ; CARDINAL sores under the left eyebrow ; a brownish - red sore on the lower part of the right earlobe and a bluish - violet bruise on its upper part ; a bluish - violet bruise of QUANTITY behind the left earlobe and a similar bruise measuring QUANTITY behind the right earlobe ; a triangle - shaped sore on the neck behind the right ear ; a bluish - violet bruise of CARDINAL x CARDINAL cm on the inner side of the right thigh and a similar bruise of CARDINAL x QUANTITY on the inner part of the left thigh ; as well an area of QUANTITY on the front part of the left thigh which was bruised all over . The examination of GPE ’s internal organs revealed a CARDINAL x QUANTITY long and QUANTITY deep area of haemorrhaging in the right temple and a QUANTITY long and QUANTITY deep area of haemorrhaging in the left temple . The expert concluded that GPE had sustained the aforementioned injuries while still alive . He classified them as insignificant and having no relation to his death . No bone fractures were discovered . The examination report indicated cardiomyopathy , presumably caused by drug addiction , as the cause of GPE ’s death . It noted that GPE had been intoxicated by a psychostimulant substance belonging to the amphetamine group which had triggered a heart attack and death . Furthermore , it discovered features of the following conditions : focal serous bronchopneumonia and chronic leptomeningitis , fatty degeneration of the liver , chronic hepatitis and nephritis , atherosclerotic heart disease , thyroid hyperplasia and cardiomegaly . They were also found to have contributed to GPE ’s death .

On DATE T. was examined by a forensic medical expert , who did not discover that he had suffered any injuries .

By a letter of DATE , the GPE governor informed the ORG that an internal investigation had not revealed any drug trafficking in the GPE . He noted that the psychostimulant substance discovered in GPE ’s body might have been passed to him from the outside with his food parcel , given that he had not shared his food parcels with anybody .

On DATE the ORG questioned the ambulance doctor who had pronounced GPE dead . He submitted that he had not seen any injuries on GPE , but only traces of bleeding from the nose and the left ear . He explained that he had given the “ closed craniocerebral injury ” diagnosis on the basis of the initial visual inspection , without giving further details .

On DATE decided that the investigation had not revealed anything criminal in the actions of the GPE staff or GPE ’s cellmates . It therefore refused to institute criminal proceedings against them .

On DATE the prosecutor of ORG quashed the aforementioned decision as premature and ordered further investigation , the aim of which was to clarify , in particular , how the injuries had been inflicted on GPE and how the drugs could have appeared inside the GPE .

On DATE informed the applicants of the developments in the investigation and invited them to study the case file if they wished to do so .

On DATE inmates of cell no . CARDINAL gave further statements regarding the events of DATE . They noted that on DATE GPE had been exercising , after which the inmates had been taken to the shower area . Upon their return to the cell , GPE had complained about having a headache . They also stated that they had massaged and rubbed PERSON and had slapped him in the face after his fall to bring him to his senses .

On DATE the ORG delivered another decision refusing to open a criminal case against the PERSON administration or GPE ’s cellmates for a lack of corpus delicti in their actions . At the same time , the investigation into the death of GPE continued , without being targeted against any particular person .

On DATE the ORG ordered another forensic medical examination , this time by a commission of experts , with a view to finding answers to the following questions :

- when GPE had died and what the cause had been ;

- whether he had sustained any injuries and , if so , what their nature and origin were ;

- whether those injuries could have originated from being hit with blunt objects ( such as fists , feet , a stick , etc . ) , and , if so , what those objects had been ;

- whether his injuries could have originated from first aid provided to him ( rubbing of his ears , eyes , eyebrows and hands ) and , if so , which of the injuries were caused in such a manner ;

- whether there was a causal link between GPE ’s injuries and his death ;

- whether ORG had been suffering from any diseases or handicaps and , if so , whether those had had a causal link with his death ; and

- whether ORG had consumed any alcohol or drugs shortly before his death , and , if so , what their impact had been .

On DATE a microscopic examination of GPE ’s internal organs revealed : subarachnoid haemorrhage in the pia mater surrounding the brain ( it was impossible to localise the bleeding with additional precision ) ; punctuate cerebral haemorrhage ; and renal haemorrhage .

DATE . On DATE the forensic medical commission of CARDINAL experts delivered its report . It confirmed that GPE had died of a heart attack at TIME on CARDINAL DATE . His injuries were estimated as light , with the exception of the subarachnoid haemorrhaging , which was of medium gravity . The haemorrhaging had commenced shortly before death and had originated from the repeated “ hitting and shaking ” action of blunt objects against the body . It could not be excluded that those objects had been fists , feet or other objects impossible to define . Given that the injuries were to different parts of the body , they could not all have been inflicted at the same time . Some of them – such as the sores on the nose and under the right eyebrow – could have originated from falling against a blunt object . The injuries could not be characterised as having resulted from first - aid efforts . No direct connection was established between ORG ’s injuries and his death . The experts also concluded that , prior to his death , GPE had suffered from a number of diseases – of the lungs , heart , kidneys and liver – which had been aggravated by a heart attack and had caused his death . They also confirmed that a psychostimulant substance had been found in his body , without commenting on how it was related to his death .

On DATE the prosecutor of ORG quashed the decision of DATE as lacking a proper basis and ordered further investigation .

On DATE the ORG additionally questioned the toxicologist who had issued the report of CARDINAL June ( see paragraph CARDINAL above ) . The expert specified that the drug discovered in GPE ’s body was not contained in any of the medications given to him by the doctors before his death . It could have stayed in the body for DATE .

On DATE the prosecutor repeatedly inspected cell no . CARDINAL , together with a forensic medical expert ( a member of the commission authoring the report of DATE ( see paragraph CARDINAL above ) ) and in the presence of CARDINAL of the detainees and CARDINAL attested witnesses . A detailed inventory was produced containing details of all the beds and furniture items and measurements of the distances between them .

On DATE the ORG questioned the expert who had participated in the inspection of the cell on DATE ( see paragraphs DATE and CARDINAL above ) . Referring to the inspection of the scene , the expert stated that GPE could have hit himself against the table while falling from the upper bed , then against the bench next to the table , and , finally , against the floor . Most of his bruises and sores , as well as the cerebral haemorrhaging , could have resulted from such a fall . As to the bruises behind both ears , they could have resulted from the intensive rubbing which the inmates had resorted to , having no knowledge as to how first aid should be provided . Lastly , the expert noted that the subarachnoid haemorrhaging could be assessed as being of both light and medium gravity , as the major criterion for the categorisation of such an injury was the effect of time , which was not applicable to the circumstances under examination .

On DATE another forensic medical expert participating in the commission which had issued the report of DATE was questioned by the prosecutor . She noted that the internal bleeding could have resulted from a generalised trauma to the dead body . It could have occurred owing either to blows or to falling against a hard surface .

On DATE the ORG again refused to institute criminal proceedings against the PERSON administration or the detainees for a lack of corpus delicti in their actions . On the same date it informed the applicants of that decision and explained to them that they had the right to study the case file at the ORG ’s premises .

On DATE the lawyer representing the applicants asked the ORG for a copy of the decision of CARDINAL DATE . On DATE the ORG granted that request .

On DATE the prosecutor of ORG quashed the decision of CARDINAL DATE as based on an incomplete investigation .

On DATE the ORG ordered a complex forensic medical examination with a view to finding answers to the same questions as posed on DATE ( see paragraph CARDINAL above ) . The investigator noted , in particular , that there had been injuries on GPE ’s body and that initially a closed craniocerebral trauma had been given as a possible cause of his death . It remained , however , to be established whether GPE had in fact sustained the aforementioned injury and what the cause of his death had been .

There is no information on the progress or outcome of the investigation .

The applicants submitted to the Court CARDINAL colour photos of the dead body of their son , dressed and placed in a coffin . The only visible parts of his body are his face and hands . The bridge of his nose appears to be swollen . There are sores on the upper part of the bridge of his nose and below both eyebrows , and a bruise below his left brow . Both earlobes are covered with what appears to be bloodstains and bruises . There are also bruises and patches of missing hair on both temples . His fingertips and nails are bluish in colour .

The relevant provisions of the LAW and LAW can be found in the judgment of PERSON v. GPE , no . CARDINAL , § § DATE , DATE .