CASE OF NECHIPORUK AND YONKALO v. UKRAINE

Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violations of Art. 5-1;Violation of Art. 5-2;Violations of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violations of Art. 6-1;Violation of Art. 6-3-c;Remainder inadmissible;Non-pecuniary damage - award

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

The applicants were born in DATE and DATE respectively . The first applicant is serving a prison sentence in FAC no . CARDINAL . The second applicant lives in GPE .

On DATE CARDINAL persons wearing masks , one of whom was armed with a gun , attacked a certain PERSON and her son at the door of their flat in GPE . In the course of the fight the armed intruder shot at PERSON , after which they both retreated without any further action and without their faces being seen . TIME PERSON died .

On DATE , at TIME , the police apprehended the first applicant in the street and took him to the Pivdenno - Zakhidna Police Station . According to a written explanation addressed by CARDINAL of the arresting officers to the Chief of ORG , the apprehension was occasioned by the suspicious behaviour of the applicant , whom the police had seen “ walking fast and looking around ” , entering a building ( according to the case - file materials , that was the building in which the applicant lived ) , leaving it when approached and trying to re - enter it later . In the applicant 's submission , he was asked by CARDINAL officers to go to the police station “ to clarify some issues ” , to which he agreed .

The applicant was body - searched in the police station . As a result , a packet containing a “ green substance of plant origin ” was discovered in his pocket . According to the applicant , it had been planted on him by the police .

On DATE , at TIME , on the premises of the police station , the applicant was placed in “ administrative detention ” on suspicion of illegal drug possession . As noted in the respective police report , the offence on suspicion of which the applicant was detained was “ a breach of Article CARDINAL of the Code on Administrative Offences ” .

The applicant 's relatives , while learning about his detention from a witness , were not informed of his whereabouts and enquired unsuccessfully at various police stations and detention facilities in the town , including ORG .

On DATE an expert report was issued , according to which the substance discovered in the applicant 's pocket was not a drug .

On DATE CARDINALHe was however immediately re - arrested in the framework of the criminal proceedings ( see below ) .

On DATE the police terminated the administrative offence proceedings , finding that there was no case to answer .

The applicant 's account of the events of CARDINAL DATE is as follows . During TIME DATE he was taken from the cell to an office in the Pivdenno - Zakhidna Police Station , where the police officers GPE and GPE urged him , under threat of violence , to confess that he had murdered PERSON As the applicant refused to confess , at QUANTITY those officers brought in a manual electricity generator . The applicant was handcuffed and suspended from a metal bar CARDINAL tables , with naked wires from the generator attached to his ankles and coccyx . CARDINAL of the officers , GPE , administered electric shocks to the applicant , while the other officer , PERSON , gagged his mouth with a sofa cushion . At TIME the applicant lost consciousness . After he had recovered consciousness , several officers took it in turns to beat him until TIME , having previously put a bullet - proof jacket on him and covered his head with a pillow . In the meantime , at TIME , the applicant heard his wife ( the second applicant ) being questioned in the neighbouring office . CARDINAL of the officers entered the office where the applicant was , and asked his colleague : “ Do you think she would be able to survive what he has gone through ? ” The applicant then wrote his first confession , allegedly under dictation from a police officer . He stated that he had committed the murder of PERSON together with a certain Mr M. At TIME the applicant was placed in FAC ( the “ FAC ) .

The Government did not submit their version of the events of CARDINAL DATE , apart from mentioning the first applicant 's placement in FAC .

At some point on DATE the applicant was taken to the investigator in ORG ( “ the KCPO ” ) , to whom he complained about his alleged torture by electric shocks .

On DATE the applicant repeated his complaint to the investigator during questioning . On DATE he was examined by a doctor of ORG , who noted that his both ankles had sores of QUANTITY and QUANTITY x QUANTITY respectively . The doctor concluded that those injuries were minor and could have been inflicted on the applicant with blunt objects DATE . Given their nature , which the doctor described as “ unspecific ” , he expressed doubt as to the plausibility of the applicant 's allegation that electric current had been applied to him .

On DATE the applicant 's lawyer and relatives complained to the KCPO that he had been tortured during TIME of CARDINAL DATE by CARDINAL police officers , GPE and NORP They noted that the doctor who had examined the applicant on CARDINAL DATE had ignored a number of pinpoint sores on his ankles and that the medical report had been inaccurate . The complainants sought an investigation into the matter and a new medical examination of the first applicant .

On DATE the first applicant raised the ill - treatment complaint before ORG during the examination of the prosecutor 's request for him to be remanded in custody ( see paragraph CARDINAL below ) . The court allegedly ignored his complaint .

Later on DATE the first applicant was allegedly beaten again by police officers , who had previously put a bullet - proof jacket on him . He confessed to the crimes again .

On DATE the ORG examined the office in which the first applicant 's questioning had been conducted on DATE and issued a report according to which “ there were no foreign objects discovered there which could have been used for inflicting bodily injuries ” .

On DATE the first applicant underwent another forensic medical examination ordered by the investigator . According to its report , CARDINAL pinpoint sores had been discovered on the applicant 's feet and ankles , each QUANTITY wide and QUANTITY long . A purple bruise , QUANTITY x QUANTITY , was discovered on the back of his right thigh . The doctor concluded that the injuries were minor and could have been inflicted with blunt objects , possibly on DATE . The report mentioned : “ There is no medical indication that the injuries were caused by an electric current ” .

On DATE the Khmelnytskyy ORG issued a report of its internal investigation in which it found the first applicant 's allegation of his ill - treatment in police custody to be unsubstantiated . The report was based on the questioning of the police officers involved , who denied any coercion , as well as the medical findings of CARDINAL DATE and the office examination report of DATE .

On DATE the KCPO issued a decision refusing criminal prosecution of the police officers for lack of corpus delicti in their actions . It was mainly based on the questioning of the police officers involved and the findings of the medical reports of CARDINAL May and DATE .

The first applicant challenged that refusal both separately and in the course of his own trial . In DATE the KCPO informed him that his complaints about his alleged ill - treatment by the police had been added to his own case file and would be considered in the course of his trial .

Overall , the prosecutor 's refusal on DATE to bring proceedings against the police officers involved to establish their criminal liability was quashed and subsequently upheld CARDINAL times . Having quashed it for the last time on DATE , ORG ( “ the NORP Regional Court ” ) also referred to the fact that the first applicant 's ill - treatment complaint had been included in the case file concerning his own criminal case and was to be examined in the context of his trial ( see also paragraph CARDINAL below ) .

On DATE the first applicant was transferred from FAC to ORG ( “ the GPE ” ) . According to the Government , he did not raise any allegation about illtreatment before the ORG or the GPE medical personnel or administration .

On DATE the first applicant was allegedly beaten up again by the police officers who had escorted him to the court for a decision regarding his detention . On DATE his father raised a complaint in that regard before ORG ( “ the ORG ” ) .

The applicant 's father also complained about the alleged illtreatment of the applicant to the hotline of ORG of ORG .

On DATE the aforementioned authority decided to forward the case to ORG ( “ the KRPO ” ) given the inability of its own investigation to establish the truth .

In DATE the first applicant 's lawyer asked a licensed private forensic - medical centre for an expert 's conclusion regarding the following : ( a ) whether the findings of the medical reports of DATE and DATE provided grounds to state that the injuries to the applicant 's ankles might have been caused by blunt objects ; ( b ) what marks typically appeared on the skin in cases of direct contact with electric current and whether the marks on the applicant 's body were of that nature ; ( c ) what injuries could be caused if a bullet - proof jacket was put on the person before beating .

On DATE CARDINAL experts of the aforementioned centre , with CARDINAL and DATE of experience respectively , issued a report with the following conclusions : the first applicant 's injuries could not have been caused by blunt objects ; their number and features indicated that they might have been inflicted on CARDINAL DATE by contacts , possibly multiple ones , with naked electric wires . As to the question about injuries from beatings inflicted through a bullet - proof jacket , the doctors referred to statements from their colleagues at ORG given in the course of the trial , according to which in such cases internal injuries could be inflicted . They could be identified by PERSON , whereas the first applicant had not been X - rayed .

As is apparent from the ruling of ORG of DATE ( see paragraph CARDINAL below ) , the above medical report had been included in the first applicant 's case file .

The facts concerning the investigation into the applicant 's illtreatment allegation in the course of his trial are summarised below in the sections pertaining to the trial .

On DATE the first applicant confessed to the armed assault and murder of PERSON ( see also paragraph CARDINAL above ) .

On DATE the investigator applied to ORG for authorisation to search CARDINAL flats where the first applicant 's domicile was registered and where he actually lived . As noted in the application , the investigation had revealed that the applicant might have been involved in the murder and that significant evidence might be found at the place of his residence and/or official domicile .

On DATE ORG authorised the requested searches .

At TIME the police searched the flat where the first applicant lived with his wife ( the second applicant ) . TIME they searched his parents ' flat where his domicile was registered . Apparently the searches did not reveal anything of relevance to the investigation .

On CARDINAL DATE a criminal case was opened against the first applicant on suspicion of assault with intent to commit robbery and murder for profit , and he was arrested by the investigator in the context of the criminal proceedings . The investigator documented the arrest at TIME by filling in a document template entitled “ Record of a suspect 's arrest ” . The reasons for the arrest were included in the pre - printed part of the template and read as follows :

crime committed , provides grounds for his detention ” .

In the line “ Explanations of the detainee ” it was noted that the first applicant “ had not given any explanations ” . The applicant had been body - searched , with “ nothing having been discovered ” . On DATE he withdrew his earlier confessions , alleging they had been extracted by force .

NORP On DATE the KCPO requested ORG to remand the applicant in custody , referring to strong evidence against him and to the fact that he was suspected of having committed serious crimes . According to the request , on CARDINAL DATE the first applicant had walked into the Pivdenno - Zakhidna Police Station and had given himself up to the police , confessing to assault and murder . It then stated that he had been detained on suspicion of the aforementioned crimes on DATE .

On DATE , CARDINAL DATE , ORG , following a hearing with the participation of the first applicant and the lawyer contracted by his parents , PERSON . ( see § DATE below ) , allowed the prosecutor 's request and remanded the applicant in custody . It referred to the gravity of the charges against him and the inherent risk of his absconding or obstructing justice . It was noted in the aforementioned ruling that it could be appealed against within DATE .

The case file contains a copy of the first applicant 's written statement dated DATE , according to which he refused to make any statement in the course of the pre - trial investigation , relying on LAW . At the same time it transpires from some other documents that on the aforementioned date the applicant made another confession . According to the first applicant , he confessed again after his alleged beating by police officers in FAC and the confession was dictated by the investigator .

On DATE the first applicant again confessed to those crimes in the presence of his lawyer ( Mr Ma . ) . According to him , those confessions were made in the presence of the police officers involved in his alleged illtreatment . The record of his questioning of DATE contained both his confession and his note “ I do not admit my guilt ” .

On DATE a certain Mr PERSON was arrested on the same charges as those laid against the applicant and confessed to the crimes after his alleged beating by police officers ( as he would later complain during his trial ) .

On DATE a confrontation was held between the applicant and Mr M. , during which the first applicant repeated his confession in the presence of the appointed lawyer Mr PERSON . ( see paragraph CARDINAL below ) .

On DATE the first applicant , in the presence of the lawyer Mr Ma . , retracted his earlier confessions as having been given under duress and pleaded not guilty .

On DATE ORG , acting at the prosecutor 's request , extended the term of the first applicant 's detention to DATE , referring to the seriousness of the charges against him and to the inherent risk of his absconding , as well as the possibility of his impeding the investigation which had not yet been completed .

On DATE the charges against the first applicant were changed from premeditated murder to grievous bodily harm causing death . Both co - accused were also charged with violent robbery and unlawful possession of weapons .

DATE . On DATE the investigation was declared complete , and the first applicant and Mr M. received access to the case file .

On DATE the case was sent to ORG .

According to the first applicant , he was not legally represented during the period from DATE .

The Government maintained that on DATE a lawyer ( Mr PERSON . ) was appointed for the applicant .

On DATE the first applicant 's parents entered into an agreement with a private lawyer , PERSON . , for legal representation of the applicant in the criminal proceedings against him .

On DATE Mr Ma . received from the investigator dealing with the case a written permit for his meetings with the first applicant in the Khmelnytskyy ORG , where his client was detained .

On DATE the first applicant refused the services of the appointed lawyer Mr PERSON . and expressed his wish to be represented by Mr Ma . During some investigative activities thereafter he however agreed to be represented by PERSON .

On DATE Mr Ma . was not admitted to see the applicant on the ground that the permit allegedly contained flaws . On DATE he complained about that to the Chief of ORG .

On DATE Mr Ma . also complained to the KCPO that the investigator was obstructing his participation in the investigative measures . He submitted in particular that he had not been duly notified of the investigative activities , which were conducted in his absence . Furthermore , he complained that the lawyer appointed for the applicant was incompetent .

On DATE the Chief of ORG wrote to PERSON . that indeed the ORG official had wrongly impeded his meetings with the applicant for which he had been disciplined .

On DATE ORG held a preparatory hearing at which it maintained the first applicant 's detention . The materials submitted by the parties to the ORG did not contain a copy of that ruling .

On DATE ORG , under the presidency of Judge PERSON , acquitted the applicant on all the charges , while the other co - defendant , PERSON , was found guilty of an unrelated instance of illegal possession of weapons ( a hunting gun and a box of bullets – of no relation to the murder of PERSON had been discovered in his garage ) . The court found that there was no evidence of the defendants ' guilt and that their confessions had been extracted by force .

The judgment noted as follows :

“ As it had been stated by the defendants in the course of the pre - trial investigation and later confirmed during the trial , ... the police had applied physical and psychological violence to them with the intention of coercing them into confessing to the murder which they had not committed and the circumstances of which they had found out from the police .

There are no doubts about that , as it clearly transpires from the case file that the defendants were under arrest when they wrote their confessions . They name specific officers of ORG as behaving violently towards them , and give a detailed account of their actions . The medical examinations held at the defendants ' requests [ ... ] revealed injuries to their bodies . During the pre - trial investigation [ the applicant and PERSON ] retracted their confessions to the crime against the family of PERSON . and complained to various authorities that they had been illtreated in police custody . ”

The court noted that both the circumstances and motives of the crime were presented inconsistently in the confessions of the co - defendants . It observed that they had attracted the suspicion of the police only because the son of PERSON , who had happened to see them together in the street , believed that their statures and size were similar to those of the offenders . The court found that that investigation had wrongly taken over that wholly unsubstantiated argument . Moreover , it recognised all the findings of the investigation as mere presumptions not corroborated by any evidence .

The court further observed that the pre - trial investigation relied “ as one of the key pieces of evidence proving the defendants ' guilt ” on the statements of a taxi driver , PERSON , who stated that he had taken CARDINAL passengers somewhere close to the building where the murder took place . The court noted , however , that his description of those passengers changed on DATE in comparison with that given earlier on CARDINAL March CARDINAL . While PERSON had not been able to indicate any specific features of their appearance , he later recognised the first applicant from a choice of CARDINAL persons “ by his size ” .

As to the other evidence , CARDINAL witnesses had seen QUANTITY persons running down the stairs close to the murder site , but they were not able to identify them as the defendants . The investigation had also found a box containing bullets at Mr M. 's home , but they were of a different type from the one with which the victim had been shot .

The court lifted the preventive measure concerning the applicant .

On DATE , CARDINAL DATE , ORG issued a separate ruling , by which it brought to the attention of the ORG , ORG and ORG the following violations :

“ [ the defendants ] had been detained for fictitious reasons ; they had not been examined in the presence of attested witnesses ; neither the reasons for the detention nor their right to defence had been explained to them ; and their relatives had not been informed that they were detained ” .

It was also noted in the separate ruling that the defendants had consistently complained that they had been ill - treated in police custody , naming the police officers involved , and that injuries had been discovered on their bodies . The court considered that the doctor who had examined the applicant on CARDINAL DATE had come to a superficial and unfounded conclusion that there were no injuries caused by electric current .

DATE . On CARDINAL DATE ORG also issued another ruling , by which it quashed the prosecutor 's decision of DATE not to open a criminal case into the applicant 's allegation that he had been ill - treated in police custody .

PERSON ( the son and husband of the deceased PERSON having victim status in the proceedings ) appealed against the judgment of CARDINAL DATE . In DATE they challenged before ORG the composition of ORG , which was to examine their appeal , on the ground that some of its judges allegedly had friendly relations with Judge PERSON under whose presidency the impugned judgment had been delivered at first instance . They further contended that certain judges there were members of the regional lawyers ' qualification and disciplinary board to which the defendants ' lawyers also belonged . PERSON therefore sought the transfer of the case to any other regional appellate court .

On DATE the Deputy President of ORG instructed ORG to transfer the case to ORG ( “ the ORG ” ) “ with a view to ensuring the most comprehensive and objective examination of the case ” .

On DATE ORG found that the first - instance court had failed to assess all the evidence in the case thoroughly and conclusively and that it had accepted the defendants ' allegations that they had been ill - treated in police custody , without having taken into consideration the related findings of the prosecution authorities . It also remarked that no assessment had been made of the confessions by the defendants in the presence of their lawyers . The ORG noted that some hearings had been held without the prosecutor 's participation , and that ORG had not responded to the victims ' request for remittal of the case for additional investigation , by which they had sought application of a stricter provision of LAW . On those grounds , ORG quashed both the acquittal and the CARDINAL rulings of ORG of DATE , and remitted the case to it for fresh examination by a different panel .

ORG rejected the victims ' request for transfer of the case to any other trial court in the NORP region , as such a transfer would be contrary to LAW ( “ the ORG ” ) .

In DATE and DATE the lawyer representing the victims requested ORG to transfer the case from ORG to a court in a different region . He noted that Judge PERSON under whose presidency the case had earlier been examined ( see paragraph CARDINAL above ) , was the Deputy President of ORG and that he would therefore influence the proceedings regardless of the panel 's composition .

On DATE the First Deputy President of ORG , while finding no grounds to transfer the case to a different region , instructed ORG to consider transferring it to another court within the GPE region .

On DATE ORG transferred the case to ORG ( “ the ORG ” ) , within the GPE region .

DATE . On DATE ORG held a preparatory hearing , during which the victims unsuccessfully sought a change of preventive measure in respect of the defendants .

On DATE the ORG again rejected the victims ' request for pre - trial detention of the co - defendants instead of an undertaking not to abscond . The court noted that the co - defendants had not been evading or impeding the investigation .

On DATE ORG remitted the case to the KCPO for additional investigation , indicating CARDINAL shortcomings in the investigation previously undertaken , which could not be remedied in the course of the trial .

The court noted , inter alia , that the defendants ' confessions lacked consistency , as did the statements by the witnesses and the victim ( Mr I. , the son of PERSON ) . It observed in particular that PERSON had initially stated on several occasions that he and his mother had been attacked by their business competitors . Later in the trial , he changed both his description of the perpetrators ' appearance ( which then contradicted that given by some other witnesses ) and his version as to who they might have been . Furthermore , the case file contained a report from the police , according to which one of the taxi drivers had heard from a neighbour of PERSON that the latter had been receiving threatening telephone calls because she had reduced the prices of her products . There was no further investigation into the matter .

NORP The court also noted that the investigator had given no reasoning for having changed the charges against the applicant from murder to inflicting grievous bodily harm causing death , with a new charge of illegal possession of weapons added .

The Shepetivka Court next expressed its concern over the way the investigation had received the statements by the taxi driver PERSON ( according to the court 's ruling DATE a key witness in the case ) , who had recognised the applicant as CARDINAL of his CARDINAL passengers whom he had driven to the building where the crime was committed , around the time of the murder , had waited for there for TIME and had then driven to a café . The court noted that on DATE the investigator had questioned PERSON as a witness in the case concerning the murder of PERSON , while at the same time PERSON was detained in the PERSON on suspicion of illegal drug possession . While both PERSON and the investigator denied the above in the course of the applicant 's trial , the ORG administration confirmed that on the aforementioned date , which was also the documented date of PERSON questioning as a witness , he had been in detention in the ORG . Moreover , according to the register of detainees ' movements , on the above - mentioned date PERSON was in the ORG .

Furthermore , the court noted that the defendants ' allegations that they had been ill - treated in police custody had not been duly investigated . Its critical remarks included the following :

“ The [ KCPO ] refused to open a criminal case relying on the absolutely identical explanations of the [ police officers ] , who are interested persons and whom the defendants accuse of torture , as well as the conclusions of the internal investigation undertaken by senior [ police officers ] in respect of their own subordinates , which the court considers unacceptable .

At the same time , the [ KCPO ] failed to clarify why , for what reasons , under what circumstances and in what manner [ the applicant ] sustained the injuries while being held in the ORG , but not in the GPE , for DATE .

... The case file contains a forensic medical report , according to which [ the applicant 's ] injuries might have originated from electric shocks .

... Given the discrepancies in the medical findings ... , an additional forensic medical examination should be undertaken ... ”

On DATE , DATE , ORG issued a separate ruling indicating a number of gross violations of the criminal procedural legislation in the course of the pre - trial investigation , similar to those mentioned in the separate ruling of ORG of DATE . The court again criticised the investigation undertaken into the allegations of both defendants about their ill - treatment in police custody . It made , in particular , the following observation :

“ The prosecutor entrusted the official investigation into the use of force on the defendants directly to the supervisors of the officers whom the defendants accuse of torture , and that investigation yielded a decision that there had been nothing criminal in the actions of those officers . The court considers this unacceptable . ”

Furthermore , the court noted that the investigators had imposed on the applicant an appointed lawyer , although the applicant had already been represented by a lawyer of his own choosing , who remained uninformed about the investigative measures undertaken .

The victims appealed against the aforementioned rulings of ORG . At the same time , they opposed the examination of the case by ORG .

On DATE the First Deputy President of ORG again instructed ORG to transfer the case to ORG , referring to the reasoning given in support of such transfer in his letter of DATE .

On DATE ORG sent the case file to ORG .

On DATE the ORG quashed , on formal grounds , the separate ruling of ORG of DATE and upheld the decision of the KCPO of DATE refusing to institute criminal proceedings against police officers on the first applicant 's complaint that he had been ill - treated . ORG concluded that the requirements of LAW ORG had not been complied with : there had been no written application for quashing the refusal of DATE , and , in any event , such an application would have had to be lodged with ORG .

ORG also excluded from the ORG ruling of DATE remitting the case for additional investigation all issues other than those concerning the classification of the defendants ' actions under LAW and assessment of the testimony of the son of PERSON Thus , ORG noted in its ruling as follows :

“ In the light of all the materials of the case , namely , the collected evidence , the nature of the criminal actions , the instrument of the crime being a firearm , the conclusions of the forensic medical expert on the location and nature of the wounds , the bench considers that the victim 's ... life was taken deliberately and thus there is every ground to classify the defendants ' actions under a different criminal provision envisaging liability for a more grievous crime ” .

On DATE , at TIME , the first applicant was arrested by the investigator on suspicion of premeditated murder . The investigator substantiated this decision with the standard wording of the arrest report template , which read as follows :

“ the eyewitnesses , including the victims , directly indicate this person as the one who committed the crime ” .

On DATE the KCPO ordered the applicant 's release with a reference to the criminal procedure provisions concerning a replacement of CARDINAL preventive measure by another .

On DATE first applicant complained to the ORG about the alleged unlawfulness of his detention during the aforementioned period .

In line with the aforementioned ruling of ORG ( see paragraph CARDINAL above ) , the first applicant challenged the ORG 's ruling of DATE before ORG .

On DATE ORG quashed the ruling of DATE and remitted the case to the KCPO , allowing the complaint .

On DATE ORG quashed the aforementioned ruling of CARDINAL DATE on the ORG 's appeal and ruled that the investigation into the alleged ill - treatment was to take place within the first applicant 's own criminal case , which was being examined by ORG .

On DATE the investigator brought formal charges against the first applicant on CARDINAL counts of premeditated murder for profit ( considering that he had also attempted to kill the son of PERSON and failed for reasons beyond his control ) , violent robbery and illegal possession of weapons .

On DATE the investigator applied to ORG for replacement of the preventive measure in respect of the first applicant from the undertaking not to abscond to pre - trial detention . Referring to the seriousness of the charges as advanced on DATE and the inherent risk of absconding , the investigator submitted that detention was a more appropriate preventive measure .

On DATE ORG – at the hearing with the participation of the first applicant and his lawyer – examined the aforementioned application of the investigator as well as the first applicant 's complaint about the alleged unlawfulness of his detention from DATE . The court lifted the applicant 's undertaking not to abscond and remanded him in custody at the prosecutor 's request . It dismissed as unsubstantiated the applicant 's complaint about his arrest of DATE . The court gave as the reasons for the new preventive measure the fact that the applicant was suspected of serious crimes and that he could abscond or hinder the establishment of the truth . The court referred to unspecified statements made by the victims . As regards the applicant 's complaint about his detention from CARDINAL to DATE , it noted that there were no reasons to consider it unlawful .

The first applicant 's father and lawyer appealed , submitting that the applicant had always complied with the investigator 's summons while under the undertaking not to abscond and that the allegations of the victim 's family about his attempts to influence their testimony had been confined to their suspicion that “ somebody had been following them ” . Furthermore , they noted that the first applicant had health problems , referring to the fact that at the time of the arrest order he was undergoing in - patient treatment in a neurological hospital , of which he provided documentary evidence . They also submitted that he had a permanent place of residence , no criminal record in the past , had a small baby to support , and was studying at a university . They therefore insisted that there were no reasons to believe that he would abscond . The first applicant 's representatives also challenged the finding of ORG concerning his detention from DATE . They did not make any comments or complaints regarding their or the applicant 's access to the case - file materials prior to the examination of the prosecutor 's appeal by the court on DATE .

On DATE ORG , following a hearing with the participation of the first applicant 's lawyer and father , rejected the applicant 's appeal and upheld his detention with a reference to the gravity of the charges against him and “ the witnesses ' fears for their safety ” . It also dismissed the applicant 's complaint concerning his detention from DATE having found “ no significant grounds for recognising [ it ] unlawful ” .

On DATE ORG extended the first applicant 's pre - trial detention , on the investigator 's application , to DATE ( to CARDINAL DATE with his detention from DATE to CARDINAL DATE included therein ) . The court referred to the gravity of the charges against the applicant and his unspecified attempts to impede establishment of the truth , as well as to the significant volume of the case file .

On DATE the investigator applied to ORG for another extension of the first applicant 's pre - trial detention , referring to the scope of the remaining investigative work .

NORP In DATE ( the date is illegible ) ORG extended the applicant 's pre - trial detention to DATE ( to CARDINAL DATE ) . It founded its decision on the time required for the applicant to study the case file , the seriousness of the charges , and his “ negative behaviour when at large ” .

On DATE the first applicant was indicted , and the case was sent to ORG .

On an unspecified date in DATE it was decided that ORG would try the case as a court of first instance .

On DATE ORG held a preparatory hearing . The court upheld the first applicant 's detention , having found that “ there [ were ] no grounds for changing the preventive measure ” . It did not set any time - limits for the detention .

NORP On DATE ORG found the first applicant guilty of premeditated murder for profit committed following a conspiracy with a group of persons , assault with intent to rob , and illegal possession of weapons , and sentenced him to DATE imprisonment .

The court relied , inter alia , on the statements by the taxi driver Mr PERSON , according to which he had taken CARDINAL passengers to the building where the crime was committed , waited for them there for TIME and then driven them away . He recognised the applicant “ by the features of his face , shape of the nose and his hair ” as being CARDINAL of those passengers . PERSON that any pressure had been put on him by the police . He mentioned that he had been questioned in the prosecutor 's office , but did not remember any details about that questioning . The investigator who had questioned PERSON stated that the questioning had taken place in the prosecutor 's office and on a different date than that mentioned in the questioning report , with the discrepancy in the dates being a typing error . Mr PERSON denied as inaccurate the first applicant 's allegation that he had admitted to the latter having slandered him under pressure from the police . The court noted as follows :

“ There is no information from which it could be discerned that unlawful investigation methods were applied to witness [ Mr K. ] entailing his incriminating statements against the defendants as they allege .

The allegation of [ the first applicant ] that [ Mr PERSON ] was arrested on DATE , remained in police custody until DATE and that is why he recognised [ the first applicant as the offender ] is unfounded . It is not corroborated by the materials of the case and can not be interpreted as an indication of any pressure on [ Mr PERSON ] with a view to incriminating the defendants . The witness [ Mr PERSON ] denied this fact during the court hearing in a categorical manner , as well as denying the allegation that he had admitted to [ the first applicant ] having incriminated him under pressure from the police , as [ the first applicant ] has submitted many times .

The panel considers the statements of [ Mr K. ] given during the pre - trial investigation and the trial to be truthful , as both during the pre - trial investigation and during the judicial proceedings they were identical , consistent in detail and without any considerable discrepancies as alleged by the defendants and their defence . The court therefore takes them into consideration in the basis of the conviction as proof of the defendants ' ... guilt , being concordant with the other evidence . ”

The court also took into account the testimony of the son of PERSON , who thought he had recognised the first applicant and the other co - defendant by their postures and gestures , having seen them together in the street . It further took note of statements from several witnesses who had seen QUANTITY persons wearing masks close to the crime scene . ORG relied on the defendants ' confessions given at the initial stages of the pre - trial investigation . It attributed some discrepancies between the defendants ' versions to the voluntary nature of their confessions . The police officers allegedly involved in the defendants ' ill - treatment were questioned in the trial and denied those allegations . The court also noted that the first applicant had not complained about his ill - treatment to the ORG or to the GPE authorities . It questioned the doctors who had examined the first applicant in DATE , and they again concluded that his injuries were not typical of the effects of electric current . Furthermore , the court relied on the ruling of ORG DATE refusing to open a criminal case in respect of the first applicant 's complaint . In the light of those considerations , the trial court found the first applicant 's allegation that he had been ill - treated unsubstantiated .

The term of the first applicant 's imprisonment was to be calculated from DATE and included his detention from DATE to CARDINAL DATE and from DATE .

The first applicant lodged a cassation appeal , alleging , inter alia , that his guilt had never been proven and that his conviction was primarily based on his confessions extracted by torture and in the absence of legal assistance . He noted that the forensic medical report corroborating his allegation of having been tortured by electric shocks had remained ignored .

Furthermore , the first applicant stressed that the statements of PERSON K. , on which the trial court had relied as proof of his guilt , had drastically changed over time to his disadvantage and in suspicious circumstances . He submitted in particular that PERSON had initially stated that he did not remember any features of his passengers of DATE . The first applicant further noted that on DATE the police had apprehended PERSON for being drunk . During his subsequent body - search a package of substance of “ plant origin ” had been discovered on him , and PERSON PERSON had been arrested . It was during his administrative detention that he had “ remembered ” some general features of CARDINAL of his passengers . The first applicant referred to specific pages in the case file quoting PERSON as having stated during the trial that “ there [ was ] a significant difference between those to whom [ he ] had given a lift [ on DATE ] and the defendants ” and that the investigator had included some untruthful information in the records of his questioning during the pre - trial investigation . The applicant also submitted that the case file contained a transcript ( by a technical expert ) of his conversation with PERSON made in DATE ( apparently during the period when the first applicant had been at large ) , in which PERSON had stated that the police had forced him to incriminate the defendants under threat of being accused himself of the murder of PERSON , that drugs had been planted on him and that he had made the incriminatory statements while being detained in the ORG . The first applicant stressed that PERSON had admitted in court that he had indeed met him in DATE and that their conversation could have been recorded . He further complained that although the defence had sought the examination of the aforementioned audiotape in the hearing and putting questions in that respect to PERSON , the trial court had dismissed that motion without any explanations . It was also mentioned in the cassation appeal that the case file contained a copy of the investigator 's ruling of DATE about refusal to open a criminal case against Mr PERSON without reference to any provision of LAW a fact , which , according to the first applicant , had remained without assessment .

On DATE ORG upheld the first applicant 's conviction . It referred mainly to his confessions during the pre - trial investigation , including those given in the presence of his lawyer , which it found to be corroborated by other evidence in the case . As to the first applicant 's allegation that he had been ill - treated in police custody , the court noted that it had studied the videotape of the investigative activities and found that the applicant had given his confessional account of the events in a free and detailed manner and that there were no injuries on his body . Furthermore , according to the above ruling of ORG , the first applicant “ had never referred to any specific persons who had allegedly illtreated him ” and that he “ had always replied that he was well when asked about his health ” . The court considered that all the persons involved in the investigation of the applicant 's allegation of ill - treatment had been questioned in the course of the trial and all the respective medical reports had been studied . In the light of all the aforementioned , it found the complaint of ill - treatment to be wholly unsubstantiated .

As regards the statements of witness PERSON , ORG noted that he “ had been examined many times both during the pre - trial investigation and the trial ” and that he had recognised the first applicant “ without any hesitation ” . It further noted as follows :

“ There is no information from which it could be discerned that the law - enforcement authorities applied unlawful methods to this witness , and therefore his statements were rightly taken into consideration in the basis of the conviction ” .

The second applicant worked at a factory run by the victim 's family . At DATE she was in DATE of pregnancy .

On DATE , at TIME , the second applicant was at her workplace . The manager asked her to come in for a work - related conversation , when CARDINAL plain - clothes police officers , allegedly without any explanation and not allowing her to change out of her uniform into her own clothes , took her to the Pivdenno - Zakhidna Police Station . The second applicant was placed there in a room she described as very cold . The police officers , as well as the widower of Ms I. , who was also present at the police station , allegedly shouted at her , threatened her with imprisonment and pushed her in the back , pressurising her to testify against her husband .

The second applicant wrote that her husband ( the first applicant ) had been with her at home at the time of the murder .

After the questioning , which lasted for TIME , the second applicant was taken back to the factory . She had to wait there for some time until the door was opened so that she could change into her own clothes .

On DATE the second applicant complained to the prosecution authorities about the alleged unlawfulness of her detention on CARDINAL DATE .

On DATE the prosecution office wrote to her that the police had not violated any criminal procedure legislation .

Articles DATE and CARDINAL of the LAW , which are relevant to the case , read as follows :

Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ...

Every person has the right to freedom and personal inviolability .

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with a procedure established by law .

In the event of an urgent necessity to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of their holding in custody .

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention , apprised of his or her rights , and from the moment of detention shall be given the opportunity to personally defend himself or herself , or to have the legal assistance of defence counsel .

Everyone who has been detained has the right to challenge his or her detention in court at any time .

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention . ”

Articles CARDINAL and CARDINAL concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of DATE in the case of NORP v. GPE ( no . CARDINAL , § DATE ) .

Article CARDINAL envisages DATE imprisonment as the penalty for premeditated murder and imprisonment of DATE or for life as the penalty for premeditated murder for profit and/or committed following conspiracy by a group of persons .

Article CARDINAL penalises premeditated infliction of grievous bodily harm causing the victim 's death by imprisonment for DATE .

Under paragraph CARDINAL of Article CARDINAL , assault with intent to rob committed by an organised group or coupled with infliction of grievous bodily harm is punishable by imprisonment for a term of DATE , with confiscation of property .

Paragraph CARDINAL of Article CARDINAL provides for DATE imprisonment for illegal possession and use of weapons .

Under Article CARDINAL , deliberately unlawful arrest is a crime punishable by a maximum of DATE imprisonment .

DATE prohibits production , purchase , storage , transport , or dispatch of drugs or psychotropic substances in small quantities without the purpose being trafficking .

Article CARDINAL provides for administrative detention on account of an administrative offence for a maximum of TIME . In exceptional cases envisaged in the legislation the duration of the administrative detention may be longer . Persons suspected of a drug offence may be detained for TIME for compilation of the offence report . If the identity of the suspect is not known , or if there is a need for a medical examination or clarification of the circumstances in which the drug had been procured , or if the drug needs to be analysed , the administrative detention may last up to three days subject to the prosecutor 's notification , or up to ten days – subject to the prosecutor 's approval and if the offender 's identity is unknown .

The provisions concerning the application of preventive measures and their types , time - limits for pre - trial detention and also the grounds for and procedure of detention by an enquiry body ( the investigator in the instant case ) , can be found in the GPE v. GPE judgment , no . CARDINAL , § § DATE , DATE .

The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of CARDINAL DATE in the case of GPE v. GPE ( no . CARDINAL , § CARDINAL ) .

Under LAW , if the court discovers a violation of law and/or of citizens ' rights in the course of a pre - trial enquiry or investigation , or during an examination of a case in a lower - level court , it issues a separate ruling by which it draws the attention of the respective authorities to the established facts and directs them to take certain measures to remedy the situation . Failure to take the requisite measures is considered an administrative offence .

Article CARDINAL provides that legal representation during the enquiry , the pre - trial investigation and the trial before the first - instance court is obligatory if , inter alia , the possible penalty is a life sentence . It further specifies that in this case the legal representation must be provided from the moment of the arrest or the laying of charges against the person .

Article CARDINAL obliges prosecutors , investigators , bodies of enquiry and judges to accept applications or communications as to the crimes committed or prepared , including in cases that fall outside their competence , and to adopt CARDINAL of the following decisions within the DATE time limit : ( CARDINAL ) to institute criminal proceedings ; ( CARDINAL ) to refuse to institute criminal proceedings ; or ( CARDINAL ) to remit the application or communication for further examination according to jurisdiction .

Pursuant to paragraphs CARDINAL and CARDINAL of LAW , persons remanded in custody are held in ORG ( SIZOs , part of the penal system ) . Exceptionally , they may also be held in Temporary Detention Facilities ( ITTs , part of the police infrastructure ) , but for DATE . If it is impossible to ensure a transfer to a GPE within the aforementioned time - limit , because of its remote location or lack of infrastructure , a detainee may stay in an ORG for DATE .

Under LAW , complaints against decisions of an investigator or prosecutor refusing to initiate criminal proceedings may be filed by a person whose interests it concerns with the local court at the place of the respective authority or official .

Before the amendments of DATE , Article CARDINAL had specified that a court ruling following the preparatory hearing prior to a trial had to give reasons in the event of changing the preventive measure . By the aforementioned amendments , that provision was repealed . Article CARDINAL , as worded at the material time , obliged the judge of a trial court dealing with the case to consider in the preparatory hearing , inter alia , whether there were grounds for changing , lifting or applying a preventive measure .

Under paragraph CARDINAL of Article CARDINAL , essential violations of the criminal procedure legislation are those which have impeded or could have impeded the court in the complete and thorough examination of a case and in issuing a lawful , reasoned and just judgment . Paragraph CARDINAL of this Article includes a violation of the right of an accused to defence , as well as a breach of the territorial jurisdiction rules , among such essential violations which warrant the quashing of a judgment in any event ( that is , regardless of whether the requirements of paragraph CARDINAL have been met ) .

Chapter CARDINAL of the Code dealt with complaints against decisions , acts or inactivity on the part of ORG and local self - government bodies as well as their officials . In particular , LAW provided that anyone who considered that his or her rights or freedoms had been infringed by a decision , act or omission on the part of a ORG body , legal entity or official could lodge a complaint with a court .

Articles CARDINAL and CARDINAL ( as worded before the amendments of DATE ) can be found in the following judgments respectively : NORP v. GPE , no . CARDINAL/CARDINAL , § DATE , DATE , and ORG v. GPE , no . CARDINAL , § DATE , DATE ) .

Following the amendments to LAW of DATE , the list of cases where the right to compensation would arise was expanded by the following point :

“ ( DATE ) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court ( save for rulings on remittal of cases for additional investigation ) ” .

The relevant extracts from LAW provide as follows :

“ While being held in police stations detainees are particularly exposed to the risk of being beaten or humiliated . ...

The Commissioner has been underlining in each DATE report that law - enforcement officials systematically subject detainees to torture . ...

The Commissioner has emphasised on numerous occasions that CARDINAL of the main reasons for violence by the police is the actual preservation of the rate of resolved crimes as a benchmark for performance reporting . The police achieve the required statistics of resolved crimes by torturing innocent persons . And the figures in support of this statement are dramatic . ...

The following phenomenon was noted in the past and still remains in place . In order to verify whether a person is involved in a crime , he / she is placed under administrative arrest on falsified grounds and subjected to intensive torture with a view of breaking his / her will and extracting a confession to the crime . It is this period when the detainee is particularly exposed to serious risk of loss of life or becoming disabled or being subjected to unbearable humiliation and loss of dignity . ... ”

The relevant extracts from the ORG to ORG on the visit to GPE carried out by the ORG from DATE [ ORG ( DATE ) CARDINAL ] read as follows :

Since the ORG 's first visit to GPE , the treatment of persons deprived of their liberty by ORG staff has been a cause of very serious concern . The DATE visit revealed a slight reduction as regards the scale of the phenomenon of ill - treatment , although not sufficient to dispel the ORG 's misgivings . Indeed , in the course of the DATE visit , the ORG 's delegation received a significant number of allegations of deliberate physical ill - treatment of detainees [ ... ] inflicted by operational officers , in particular during initial questioning in district police stations with a view to securing confessions in respect of the criminal offence for which the persons in question were detained or additional confessions relating to unsolved crimes . [ ... ] In some cases , the severity of the ill - treatment alleged – which could also consist of a combination of several forms of ill - treatment – was such that it could be considered as amounting to torture .

In the light of the delegation 's findings , ORG has no alternative but to revert back to the conclusion it reached in paragraph CARDINAL of its DATE visit report . DATE , it has to be said that persons deprived of their liberty by ORG staff still run a significant risk of being subject to ill - treatment – on occasion , severe ill - treatment / torture – by operational officers , in particular during interrogation . ”


CASE OF MONNELL AND MORRIS v. THE UNITED KINGDOM

No violation of Art. 5-1;No violation of Art. 6-1;No violation of Art. 6-3-c;No violation of Art. 14+5;No violation of Art. 14+6

ORG The first applicant , PERSON , is a NORP citizen born in DATE .

On DATE , after a trial lasting DATE , he was convicted by a jury before ORG at GPE of an offence of burglary and sentenced to CARDINAL years’ imprisonment . In addition , on the same occasion he received CARDINAL sentences of imprisonment of DATE each , to run consecutively to the DATE sentence but otherwise concurrently ( giving a total sentence of DATE and DATE ) , in respect of CARDINAL charges of burglary to which he had pleaded guilty before the same ORG DATE . In deciding the appropriate sentences to impose , the judge also took into account CARDINAL other offences which Mr. PERSON had admitted to but which did not proceed to trial . At his trial , Mr. PERSON was represented by solicitors and counsel , under a legal aid order .

ORG The counsel who had represented Mr. PERSON at the trial advised him in a written opinion dated DATE that " no prospect whatsoever exists of appealing the conviction successfully " . Counsel came to a similar conclusion regarding an appeal against sentence . In counsel ’s view , " the offences were serious and the property unrecovered . He had a substantial criminal record and had served several prison sentences for offences of dishonesty . A further prison sentence was inevitable and the length of sentence passed was equally inevitable " .

Notwithstanding this advice , Mr. PERSON went ahead and lodged an application seeking leave to appeal against both conviction and sentence . His application was signed by him on DATE and received by ORG on DATE . The gravamen of his application was premised on his view that witnesses who should have been called in his defence were not called . In his application , he acknowledged that he had read ORG , which is given to every prisoner contemplating an appeal to ORG and which states :

" Advice on appeal

Loss of Time

If you are thinking about an appeal you should get advice . Your solicitors and counsel at the trial are best able to give it . If they advise that there are grounds of appeal and these grounds are settled and signed by counsel ORG will know that you had reasons to apply . It is useless to apply without grounds , or to try to invent them if there are none . Reasons are required - not a form of words .

So it is important to get advice . If you can not get it , and put in an application without it , you should say why ... before setting out your own grounds . You may , if you wish , ask ORG to help you to get advice . But if your solicitor or counsel has advised against an appeal the ORG will not give you another solicitor for that reason only .

If you apply without real grounds you might lose by it . Your application may go first to a single Judge who might refuse it and direct that part of the time in custody after putting in the notice of application shall not count towards your sentence . If you then abandoned the application that time would be lost , but only that time . If , however , you renewed the application to a ORG they might direct that you lost more time . The result in either case is a later date of release . "

ORG Mr. PERSON , dissatisfied with the manner in which his defence had been conducted at his trial , dismissed his solicitors and , on DATE , instructed his present solicitors .

In the meantime , ORG wrote to Mr. PERSON ’s former solicitors , informing them that he had applied for leave to appeal and asking them whether they had advised him in this connection . ORG also invited the solicitors to comment on the allegation made by Mr. PERSON in his application that a certain individual should have been called as a witness at his trial . In response , the solicitors forwarded a copy of counsel ’s adverse written advice and described their attempts to trace a large number of witnesses whom Mr. PERSON had initially intended to call in his defence . They explained that Mr. PERSON had later decided against calling most of the witnesses they had succeeded in tracing .

The new solicitors sought legal aid in order , inter alia , to investigate the possibility of applying for a retrial because of additional evidence that could be obtained . Mr. PERSON also requested ORG to postpone the hearing of his application for leave to appeal pending the outcome of inquiries commenced by his new solicitors . A limited grant of legal aid was made .

ORG Mr. PERSON ’s application for leave to appeal was considered by a single judge , Mr. Justice PERSON ( see paragraph CARDINAL below ) . The additional information obtained from Mr. PERSON ’s former solicitors was also put before Mr. Justice PERSON , together with the relevant court papers ( for example , witness statements , a social enquiry report and a psychiatric report ) . The judge allowed the request that the application be heard although it had been lodged out of time but refused leave to appeal and various ancillary applications made ( for legal aid , bail , leave to be present and leave to call witnesses ) . The judge gave the following written reasons , dated DATE , for his refusal :

" You were convicted by the jury upon ample evidence after a full and correct summing up by the judge . The many witnesses you now say you wish to call were not required to be called by you at your trial . There is no ground for interference with the verdict of the jury .

The total sentence passed upon you was not excessive or wrong in principle . "

ORG On DATE , Mr. PERSON renewed all those elements of his application which had been refused by Mr. Justice PERSON . The Form SJ on which this application was made contained the following warning :

" LOSS OF TIME . A renewal to the ORG after refusal by the Judge may well result in a direction for the loss of time should the ORG come to the conclusion that there was no justification for the renewal . If the Judge has already directed that you lose time the ORG might direct that you lose more time . "

ORG A request to extend legal aid was refused at DATE . The solicitors therefore advised Mr. PERSON that they were unable to carry out any further investigations on his behalf , that the results of the investigations they had carried out were inconclusive and that , consequently , they were not in a position to advise him whether he should pursue his application for leave to appeal or not .

ORG On DATE , the full ORG rejected the application in its entirety , finding the grounds of appeal to be " wholly without foundation " . In its judgment , delivered by Lord Justice PERSON , ORG stated :

" [ Mr . PERSON ] had no conceivable reason to approach this Court for leave to appeal against either conviction or sentence . His learned counsel , in a very careful opinion on conviction , said : ‘ In my opinion no prospect whatsoever exists of appealing the conviction PERSON , and further that in relation to sentence a further prison sentence was inevitable and the length of sentence passed was equally inevitable . When a person , in the light of advice of that kind and clearly without any ground whatsoever for challenging a conviction properly passed , wastes the time of the court by pressing on with his applications for leave to appeal as this applicant has done , it is right that the ORG should consider whether or not his time in prison should be extended . We have come to the conclusion that it should be . "

ORG therefore ordered that DATE spent by him in custody pending the hearing of his application should not count towards his sentence .

ORG The second applicant , PERSON , is a NORP citizen born in DATE .

On DATE , he appeared before the Reading ORG charged , with CARDINAL others , with conspiracy to supply heroin during DATE up to DATE . The trial terminated DATE , on DATE , when the jury returned verdicts of guilty in respect of Mr. PERSON and his co - accused . Mr. PERSON was sentenced to DATE imprisonment , his CARDINAL co - accused to DATE and CARDINAL months’ imprisonment respectively .

ORG At his trial , Mr. PERSON was represented , under the legal aid scheme , by a solicitor and by counsel . Following his conviction , his counsel advised him against lodging an application for leave to appeal as , in counsel ’s opinion , ORG would be unlikely to interfere with the exercise of the trial judge ’s discretion to admit certain damaging evidence since the trial judge had applied the law correctly .

ORG Mr. PERSON nevertheless drafted his own grounds of appeal against both conviction and sentence , which his solicitor then rendered into a " more comprehensible form " and had typed . The solicitor signed on Mr. PERSON behalf the acknowledgement of having read the Form AA on advice on appeal and loss of time ( see paragraph CARDINAL above ) . The application for leave to appeal was received by ORG on DATE . The principal ground advanced by Mr. PERSON for arguing that the conviction was unsafe was that damaging statements had been obtained from him under duress whilst he was suffering from withdrawal from drugs . His main contention in relation to his sentence was that it was unfair , having regard to his role in the conspiracy and to the sentences received by his co - defendants .

On DATE , ORG sent Mr. PERSON and his solicitor copies of the short transcript of his trial . On DATE , he submitted further grounds in support of his appeal , including an unsigned , undated letter claimed by him to have been written by CARDINAL of his co - accused before the trial and purporting to clear him of any involvement in the offence of which he was subsequently convicted .

ORG These documents , along with all other relevant papers , were put before a single judge , Mr. PERSON . On DATE , the single judge refused leave to appeal against conviction and sentence as well as the ancillary applications ( for legal aid and leave to be present ) . In the written decision sent to Mr. PERSON , the judge stated : " there are no reasons to justify granting you leave to appeal " .

ORG Mr. PERSON nonetheless renewed his application for leave to appeal . The Form SJ he used for this purpose ( signed by him on DATE and received by ORG on DATE ) contained the same warning as given to Mr. PERSON ( see paragraph CARDINAL above ) .

ORG On DATE , the full ORG , presided over by the Lord Chief Justice ( Lord PERSON ) , refused the application made by Mr. PERSON . The ORG first found that " there are no possible grounds for giving leave to appeal against conviction " . As to the issue of sentence , the ORG took the view that the trial judge had had ample opportunity to apportion the degree of moral responsibility between Mr. PERSON and his co - accused and hence to grade the sentence imposed on him . The ORG concluded : " ... he must pay the penalty for renewing this hopeless application . He will lose DATE . " Consequently , DATE of the period spent in custody by Mr. PERSON awaiting the outcome of his application for leave to appeal did not count towards service of his sentence .

ORG Under LAW DATE , a person convicted of an offence on indictment ( as were both applicants ) may appeal to ORG against his conviction . Where the appeal is not on a question of law alone , leave of ORG must first be obtained , unless the trial judge has granted a certificate that the case is fit for appeal ( section CARDINAL(CARDINAL ) ) . A person convicted of an offence on indictment may also appeal to ORG against a sentence passed ( not being a sentence fixed by law ) , but such appeal is similarly subject to the leave of ORG ( sections CARDINAL and DATE ) . An application for leave to appeal , notice of which must be on the relevant form prescribed by LAW DATE , will normally be referred in the first place to a single judge ( sections DATE and CARDINAL(CARDINAL ) ) .

ORG According to Rule CARDINAL(CARDINAL ) of ORG DATE , the single judge may sit in such place as he appoints and may sit otherwise than in open court . The principal purpose of the system of referring applications for leave to appeal first to a single judge is to identify those cases where the grounds of appeal are substantial and arguable .

Where a single judge refuses an application for leave to appeal , the notification of the decision to the applicant will give the name of the judge and the reasons for the refusal . If an applicant wishes to pursue his application further , he must so notify ORG on the prescribed form within DATE of the date on which the notice of the refusal was served on him . In that event , his application will be determined , in open court , by the full ORG ( section ORG ) of LAW DATE ) . Leave to appeal will be granted if any CARDINAL member of ORG is of the view that it should be granted ( NORP v. ORG CARDINAL at CARDINAL ) .

The single judge and the full ORG deal with an application for leave to appeal , and associated applications , in the light of all the case - papers and the grounds of appeal , but in the majority of cases without hearing oral argument . Nevertheless , an applicant for leave to appeal may always at private expense instruct counsel to appear and make oral submissions before both the single judge and ORG ) ) .

ORG There is no absolute right to legal aid for representation during the procedure for consideration of an application for leave to appeal . The vast majority of defendants in criminal trials before ORG are legally aided . This aid extends up to receiving advice from counsel on the question whether there appear to be reasonable grounds of appeal and , if such grounds appear to exist , assistance in the preparation of an application for leave to appeal where such application is required ( LAW DATE , sections PERSON ) and CARDINAL ) ) . On the other hand , if trial counsel advises against an appeal , the trial legal aid order ceases , both for solicitors and counsel . ORG , the single judge and the full Court , however , have discretion to grant legal aid where an applicant for leave to appeal is unrepresented ; they may also do so , whether or not counsel settled the grounds of appeal , for the purposes of further advice and assistance or for oral argument before a single judge or ORG , sections CARDINAL ) and CARDINAL ) ; ORG ( General ) Regulations ( DATE ) , Regulation CARDINAL(CARDINAL ) ) . Where legal aid has been refused by a judge , the Registrar can not grant it unless the circumstances have changed ( ORG ( General ) Regulations DATE , LAW ) ) . In general , all would - be appellants have the opportunity of obtaining legal advice and assistance as to grounds of appeal and , if they can not pay for it themselves , it will be available under legal aid .

ORG The presence of a person in custody before ORG when it is considering an application for leave to appeal is always subject to the leave of the ORG ( section CARDINAL(CARDINAL)(b ) of LAW DATE ) . In practice , leave for a person in custody to be present at the hearing of an application for leave to appeal will only be given in exceptional circumstances , and rarely where the application is being considered by a single judge .

Grounds of appeal against conviction are limited . ORG does not re - hear the case on the facts . It may hear fresh evidence , although the mere fact that a convicted person says he wished that other evidence had been called at his trial is not enough . He has to demonstrate to the satisfaction of the ORG that fresh evidence which he seeks to adduce is credible and relevant to an issue in the case , and that there was a good reason why it was not called at the trial .

In the proceedings for examination of an application for leave to appeal , no witnesses are called ; ORG , whether it be the single judge or ORG , will consider , firstly , whether the grounds as drafted are capable of constituting grounds for appeal and , secondly , whether they have any merit . If the grounds constitute legitimate grounds of appeal and are of some merit , then leave will be granted . But if the grounds , as drafted , are not legitimate grounds for appeal or do not merit further argument or consideration , leave will be refused .

Any convicted person who chooses to take legal advice in relation to an appeal will have those basic principles explained to him . He will further be advised that counsel is not permitted to draft grounds which are unarguable .

Under the terms of section ORG ) of LAW DATE , in determining an appeal the Court of Appeal shall " so exercise their powers ... that , taking the case as a whole , the appellant is not more severely dealt with on appeal than he was dealt with by the court below " .

ORG Under LANGUAGE law , in cases in which there is no appeal , a convicted person starts to serve a sentence of imprisonment immediately it is imposed ; and , during any appeal proceedings , he ( or she ) is not regarded as being in detention on remand . The duration of any sentence must , however , be treated as reduced by the time spent prior to trial in custody on remand .

Section CARDINAL(CARDINAL ) of LAW DATE further provides that the time during which an appellant is in custody pending the determination of his appeal ( including his application for leave to appeal ) " shall , subject to any direction which ORG may make to the contrary , be reckoned as part of the term of any sentence to which he is for the time being subject " . Where leave to appeal is granted ( see paragraph CARDINAL above ) , the ORG has no power to make such a direction ( section CARDINAL ) of the Act ) .

However , ORG is not precluded from directing that any such time , or part of it , should not count towards an applicant ’s sentence when it refuses an application for leave to appeal . Although this did not occur in the present case , the power to make an order of this kind may also be exercised by a single judge ( section CARDINAL(CARDINAL)(h ) of the Act ) . Where such a direction is made , the reasons must be given and communicated to the applicant ( section CARDINAL ) of the Act ) .

ORG Prior to DATE , the law had been that the time during which an unsuccessful application for leave to appeal was pursued was not in principle reckoned as part of the sentence but the applicant did not lose DATE unless ORG ordered otherwise . The ORG retained an overriding discretion to order that no time , or more or less time , should be lost in any particular case . In practice , the ORG rarely gave a special direction and the prisoner thus almost invariably lost DATE by operation of the relevant statute .

The present rule was introduced in DATE - being re - enacted in section CARDINAL of LAW DATE - in implementation of recommendations made in DATE in a report prepared by an ORG on ORG Paper Cmnd DATE ) . ORG had suggested that the ORG should bring its mind to the question of loss of time instead , as had been the case , of operating an almost automatic rule to the disadvantage of the appellant . The ORG , in making its recommendations , recognised the dangers of weakening the barriers against unmeritorious applications for leave to appeal being made , but envisaged that the power retained by the ORG to penalise an applicant whose application was totally devoid of merit would act as a deterrent against a possible flood of hopeless applications .

ORG Nonetheless , in DATE , the number of applications for leave to appeal had risen to CARDINAL and by DATE applications were being made at the rate of CARDINAL a month . As a matter of practice , it was almost unknown for a single judge to give directions for loss of time . On DATE , the Lord Chief Justice ( Lord PERSON ) issued a Practice Direction drawing attention to the fact that the sheer volume of applications was leading to unacceptable delays which could not be tolerated in respect of applications which had merit ( DATE All England Law Reports CARDINAL ) . He therefore announced that because facilities for advice on appeals were available to appellants , almost without exception , under the legal aid scheme , the single judge should have no reason to refrain from directing that time should be lost if he thought it right so to The stated aim of the exercise of the ORG ’s power in this manner was " to enable prompt attention to be given to meritorious cases by deterring the unmeritorious applications which stand in their way " . Within DATE the number of applications fell by MONEY to CARDINAL cases per month .

ORG On DATE , the Lord Chief Justice ( Lord PERSON ) issued a further Practice Direction reminding those concerned of the power , both of the full Court and of the single judge , to order loss of time ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) . This reminder had once more become necessary as " meritorious appeals [ were ] suffering serious and increasing delays , due to the lodging of huge numbers of hopeless appeals " .

ORG According to the Government , the great majority of appeals are those where a convicted person is serving a sentence of imprisonment , and loss - of - time orders have in practice specified a maximum loss of DATE .

During DATE , CARDINAL applications for leave to appeal were registered . Precise figures regarding the number of cases in which loss of time was ordered , and the amount of time ordered to be lost in such cases , are not available . However , from information held by ORG it appears that loss of time was ordered in respect of CARDINAL applications ( which figure includes orders made by both single judges and the full ORG ) ; that the loss of time ordered ranged from DATE ; and that in MONEY of these cases the loss of time ordered was for DATE ( this being the normal order ) or less . In DATE , DATE for which statistics were available , CARDINAL cases were dealt with in all . Single judges dealt with CARDINAL . The total number of cases listed in the full ORG was CARDINAL . Those cases consisted of renewals of applications to the ORG after refusal by the single judge , cases where leave to appeal had been granted and cases referred directly to the ORG . CARDINAL per cent of all applicants were in custody .


Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 2 with regard to deaths;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3 and 8 with regard to deaths;No violation of Art. 5;No violation of Art. 3 and 9 and P1-1 with regard to alleged destruction of homes;Not necessary to examine Art. 6-1;Violation of Art. 13 with regard to deaths;No violation of Art. 13 with regard to alleged destruction of homes;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants , who were born in ORG , currently reside in GPE .

The facts of the case are in dispute between the parties .

On TIME and in TIME of CARDINAL DATE , the applicants heard gun fire coming from outside their village of GPE , located in the administrative jurisdiction of the LOC within the province of ORG . The firing continued until DATE a.m. Subsequently , soldiers entered the village and told all the villagers to gather at the village mosque .

The applicants alleged that the following took place :

On DATE the applicant was at home with his family . During the night he heard gun fire coming from outside the village . In TIME of CARDINAL May his son , PERSON , left to take the livestock out of the village . The soldiers stopped his son , checked his identity card and released him .

When the soldiers entered the village , they ordered all the villagers to gather near the village mosque . They asked them whether there were any ORG members in the area and whether they had been giving them food . The villagers replied that ORG activities were frequent in the area . Thereafter , the soldiers started to burn the houses in the village . At that time , the applicant ’s son returned to the village and was taken away by the soldiers together with CARDINAL other villagers . The applicant , together with the remaining villagers , was sent away from the village . After DATE , they were allowed to go back to the village . When they came back , they saw that the village had been burned down . DATE , the applicant went to the ORG public prosecutor and to the military authorities to inquire into his son ’s whereabouts . However , he received no reply . On DATE , DATE after the incident , the corpses of CARDINAL persons , including PERSON , PERSON , ORG and PERSON , were found near the village . The corpse of the applicant ’s son was found QUANTITY away from the others . The body was taken to ORG and was subsequently buried in the ORG cemetery .

The applicant and her family lived in the hamlet of GPE in the GPE village . On TIME DATE the applicant was at home with her family . At TIME they heard gun fire near their house . It continued until TIME In the morning of CARDINAL May , the applicant ’s brother in - law , PERSON , led the animals towards the GPE village . PERSON was DATE and he was of unsound mind . At the same time , the applicant and her children tried to leave the hamlet . However , they were not able to go very far as the area was surrounded by soldiers . From a distance , the applicant saw her house catch fire . On TIME CARDINAL May the applicant and her children stayed in the forest and saw smoke rising from the surrounding hamlets and villages . TIME of CARDINAL May , they headed towards ORG .

On CARDINAL DATE the applicant heard from her neighbours that her brother - in - law , PERSON , had been arrested by the security forces near the GPE village together with CARDINAL other villagers . Upon receiving this information , the applicant attempted to search for PERSON . However , as the roads were blocked with panzer tanks , she could not go back there . When she returned to ORG , her children told her that ORG body had been found and identified by PERSON ’s brother , PERSON . According to PERSON , PERSON skull was completely shattered and there were CARDINAL bullet holes in his chest .

The applicant went back to the village DATE and saw that her house had been burned down .

The applicant and her children were in the village on TIME CARDINAL DATE . They heard gun fire throughout TIME . On DATE , at TIME , soldiers arrived in the village and told the villagers to gather around the mosque . The applicant and her children accordingly went to the mosque . The commander then ordered the soldiers to start burning the houses . The applicant ’s house was burned down along with others . Subsequently , all men who were DATE were ordered to leave the village together with a soldier . The applicant saw PERSON , ORG , PERSON and PERSON being taken away by a soldier . After some time , the applicant heard gun fire from the direction where the men had been taken , and she subsequently saw a couple of soldiers coming back to the village from that direction .

The applicant was in the village of GPE on TIME CARDINAL DATE . In TIME of CARDINAL May at TIME , the village was surrounded by soldiers , who arrived in the village by vehicles , panzers and a helicopter . The villagers were ordered to gather around the mosque and they were interrogated about ORG activities . The soldiers then began burning down the houses . The village men who were DATE were asked to leave the village with the soldiers . Upon this order , the applicant ’s son PERSON , who was DATE , together with PERSON and ORG , were taken away by the soldiers . The applicant was sent to ORG with the remaining villagers . He tried to get information as to the whereabouts of his son . However , the soldiers did not allow him to look for him . After DATE , the applicant returned to the village . The following day , some villagers went to the ORG public prosecutor to obtain information about the missing villagers . The body of the applicant ’s son was subsequently found near the village together with the bodies of PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , ORG and PERSON . PERSON ’s body was found QUANTITY away from the other bodies . The applicant heard that there were CARDINAL bodies at the scene of incident . The body of the applicant ’s son was buried on DATE in ORG .

The applicant lived in the village of GPE . When the firing stopped at TIME on CARDINAL DATE , the applicant fled from the village . While running away , she saw a helicopter land in the village . She saw smoke rising from the village . DATE when she returned to the village , she saw that her house had been burned down .

The applicant and his family lived in a hamlet of the GPE village . On TIME DATE they heard gun fire . It continued until CARDINAL a.m. When the firing stopped , the applicant and his family tried to go to ORG . While they were passing near the GPE village , they were stopped by soldiers and the applicant ’s son , PERSON , was taken away by the soldiers . The applicant was able to witness smoke rising from the nearby villages and hamlets in the area . The applicant and the rest of the family members continued towards ORG and stayed there with relatives for DATE . On DATE the applicant was informed by some villagers that his son PERSON had been found dead together with CARDINAL other villagers , ORG , PERSON and PERSON . The applicant subsequently went to the ORG public prosecutor and the leader of the ORG and told them about the incident . However , they both responded that there was nothing they could do to help him . When the applicant received permission to collect his son ’s body , he went back to the village . He saw that the village had been burned . He subsequently found the corpse of his son behind some rocks . There were several bullet marks on the body . The applicant took his son ’s body to ORG and subsequently buried him in ORG .

The Government denied the allegations submitted by the applicants . They informed the ORG that an armed clash had taken place on CARDINAL and CARDINAL DATE in the vicinity of the NORP village , also attached to LOC . According to the Government , CARDINAL soldiers had been killed during this incident .

NORP In support of their submissions , the Government provided the full case file concerning the investigations into the killings of PERSON , PERSON , PERSON and ORG .

On DATE the corpses of PERSON , PERSON and PERSON were found in the vicinity of the GPE village . These corpses were brought to ORG by the villagers . After the bodies were officially identified , post - mortem examinations were carried out on the bodies by a doctor together with the ORG public prosecutor . The doctor perceived that rigor mortis had set in and bruising had appeared on the body of PERSON . He noted the presence of

a bullet entry hole under the right eye and a bullet exit hole measuring QUANTITY . in the occipital area , which had cracked the skull and caused heavy damage to the brain ;

a bullet entry hole on the left side of the chest and an exit hole on the fourth vertebra , measuring QUANTITY , which had caused damage to the spine ;

a bullet entry hole on the lower right side of the abdomen and a bullet exit hole , measuring QUANTITY . on the right side of the thigh ;

a bullet entry hole on the front exterior side of the left arm and a bullet exit hole on the interior side of the left arm ;

a bullet entry hole on the front part of the left arm and a bullet exit hole in the palm of the left hand ; and

scars possibly caused by gunshot wounds on some parts of the body .

No other signs were observed on the body . As the cause of death was found to be the destruction of the brain by gun shots , it was decided not to carry out a classical autopsy on the body .

On DATE the villagers found the body of ORG near the village of GPE . The body was brought to ORG . Together with the ORG public prosecutor , the doctor conducted a post mortem examination . In the report , it was noted that rigor mortis had set in and bruising had appeared on the body . The doctor also found

a bullet entry hole above the left eyebrow and a bullet exit hole in the occipital region measuring QUANTITY . , as a result of which the skull had been shattered and the brain heavily damaged ;

CARDINAL adjacent bullet entry holes on the left side of the neck ;

CARDINAL adjacent bullet exit holes on the right side of the neck , under the chin ;

a bullet entry hole on the left leg and a bullet exit hole in the calf measuring CARDINAL x QUANTITY ;

CARDINAL wounds , CARDINAL on the back of the right ankle measuring CARDINAL x QUANTITY . and another on the front part of the ankle measuring CARDINAL x QUANTITY , possibly caused by bullets ;

a fractured tibia ; and

a bullet entry hole on the right calf and a bullet exit hole above the right knee , causing a wound measuring QUANTITY . , which had damaged tissue and fractured the lower part of the femur .

No other signs were observed on the body . As the cause of death was found to be the destruction of the brain by gun shots , it was decided not to carry out a classical autopsy on the body of ORG .

On CARDINAL DATE the bodies of PERSON and PERSON were also found by the villagers near the mountains in the vicinity of the GPE village , and were brought to ORG . The body of PERSON was identified by his father PERSON and the body of PERSON was identified by his brother . The doctor conducted post - mortem examinations in the presence of ORG .

In the report on the body of PERSON , it was noted that rigor mortis had set in and bruising had appeared on the body . The doctor also found

a bullet entry hole in the chin , and a bullet exit hole , measuring CARDINAL x QUANTITY . which had caused heavy damage to the brain ; and

CARDINAL bullet entry holes in the left collar bone area , the right collar bone area and the right side of the neck , and CARDINAL bullet exit holes , CARDINAL in the shoulder blade area and CARDINAL under the left underarm .

a bullet entry hole in the neck and a bullet exit hole above the right shoulder blade ;

a bullet entry hole in between the shoulder blades , and a bullet exit hole in the front part of the right underarm , measuring QUANTITY ;

a lateral wound measuring QUANTITY . in the femur area which had been caused by a sharp object ;

a wound which had been caused by a sharp object , measuring CARDINAL x QUANTITY on the right biceps ;

CARDINAL further wounds on the right arm , caused by a sharp object ;

a bullet entry hole on the lower interior part of the left knee and a bullet exit hole on the exterior part of the knee , measuring CARDINAL x QUANTITY ;

scars due to gun shots on the left leg ; and

the right ear of the deceased was missing for unknown reasons given the DATE delay in the autopsy .

As the doctor had found that both PERSON and PERSON had died from gunshot wounds , he did not deem it necessary to perform a classical autopsy on the bodies .

The Government maintained that investigations were initiated to find the perpetrators of these killings . In this respect , they referred to the correspondence between the ORG public prosecutor and ORG . Copies of several letters , written by the prosecutor to the gendarme commander , asking the commander to conduct an investigation into the killings of PERSON , PERSON , PERSON and ORG were submitted to ORG . The gendarme commander also sent regular reports to the prosecutor indicating that it had not been possible to locate or identify the perpetrators .

On DATE the ORG public prosecutor took statements from CARDINAL villagers , PERSON and PERSON , in connection with the killings of PERSON and PERSON . In his statement , PERSON explained that he did not know PERSON or PERSON but he had heard that someone from the GPE village had been abducted and killed in DATE . When interrogated about the killing of PERSON and PERSON , the second witness , PERSON , explained that he had known PERSON and PERSON . He also knew that these CARDINAL villagers were found dead . However he had no knowledge as to who might have killed them .

On DATE the ORG public prosecutor concluded that it had not been possible to establish the identities of the perpetrators of the killings of PERSON , PERSON , PERSON and ORG . He accordingly decided to issue a continuous search warrant for the perpetrators of the killings , which would remain valid for DATE , the statutory time limit under LAW of LAW . The prosecutor also instructed the authorities to continue pursuing a meticulous search for the perpetrators .

Subsequently on DATE , DATE , CARDINAL DATE , DATE , DATE and DATE , gendarme officers attached to ORG went to the GPE village for onsite inspections . In their respective reports , they stated that there was no new evidence concerning the incidents , and that the identities of the perpetrators could not have been established .

In respect of relevant domestic legislation , the ORG refers to PERSON v. GPE ( judgment of DATE , Reports of ORG , ORG § DATE ) and PERSON and Others v. GPE ( judgment of DATE , Reports CARDINAL , § § CARDINAL ) .