Not necessary to examine Art. 2;Not necessary to examine Art. 3;Not necessary to examine Art. 5;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Not necessary to examine Art. 18

The applicants are QUANTITY women from northern GPE , born in DATE , DATE , DATE , DATE , DATE and DATE respectively . The first applicant brought the application on her own behalf and on behalf of her deceased son , PERSON . The remaining applicants brought the application on their own behalf and on behalf of their deceased husbands , PERSON , PERSON , PERSON , PERSON and PERSON respectively . The fourth applicant has also brought the application on behalf of her deceased son , PERSON .

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

The applicants are shepherdesses who earn their living by shepherding sheep in the valleys and hills surrounding their village of GPE in GPE province near the NORP border . Their deceased relatives were likewise employed .

On DATE the applicants learned that the NORP army , which had crossed earlier into GPE , was in their area . They saw military activity and witnessed military helicopters transporting soldiers and food in the valley below their village .

On TIME PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and ORG Izatthe , together with the first , third , fourth and fifth applicants , left the village to take their flocks of sheep to the hills . The second and sixth applicants remained in the village to take care of their children .

After the party of CARDINAL shepherds ( the first , third , fourth and fifth applicants and PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON ) had walked for TIME in the direction of GPE , with the QUANTITY women walking in front of the CARDINAL men , they met NORP soldiers . The latter started to shout abuse at the QUANTITY shepherds , hitting them with their rifle butts , kicking them and slapping them on the face . They separated the women from the men . They told the women to return to the village and then took the men away . The CARDINAL applicants returned to the village and told the other villagers what had happened .

In the meantime , the second and sixth applicants had begun to worry about their husbands . They had heard gunfire and had been told by a fellow villager that the NORP army was nearby and that the shooting had come from the direction of a cave situated outside the village in the direction of GPE . The villager thought that NORP soldiers had been firing inside the cave . As a result , the second and sixth applicants together with CARDINAL other identified women decided to go to look for their men in the direction of the cave . This occurred before the first , third , fourth and fifth applicants had returned to the village . When the second and sixth applicants and the CARDINAL other women reached the NORP soldiers they saw the shepherds with them . The soldiers fired in their direction . The women left and went down into the valley . There they met another group of soldiers and requested permission to talk to the men . The soldiers pointed their guns at them and the women left .

Instead of going to the village , the CARDINAL women tried to hide in the valley but were spotted by the soldiers who threatened to kill them . Eventually the women reached the cave , but the men were not there . They saw a military helicopter land . They asked the soldiers for permission to see their men but the soldiers refused . The QUANTITY women continued their search until TIME with no success . They returned to the village and told their fellow villagers about what had happened .

Some of the village men , accompanied by members of ORG ( “ the ORG ” ) , went to ORG , a nearby town where a bigger NORP military unit was based . This unit was responsible for overseeing the military operation in the area . The village men asked the officer in charge to release the shepherds and to allow them to fetch their sheep from the hills . The officer claimed at first that he did not know anything about the shepherds . He subsequently promised the representatives of the ORG that the shepherds would be released . As this did not happen , the ORG representatives made several additional attempts to obtain information . The officer said that if the shepherds had been detained , they would be released . He eventually gave permission for the men to fetch the sheep . He denied that the shepherds had been detained , but warned the men not to look for them . When the men asked why not , the officer became angry and did not reply . When the men went to fetch the sheep , they looked for the shepherds but could not find them .

On DATE the NORP army withdrew from the area around the village and the village men set off in the direction of GPE to look for the CARDINAL shepherds who had gone missing . In an area close to where the CARDINAL shepherds had last been seen with the NORP soldiers they found the bodies of PERSON , PERSON , PERSON , ORG Izat and PERSON . The bodies had several bullet wounds and had been badly mutilated - ears , tongues and genitals were missing . The bodies were taken to the main road and from there to GPE hospital in GPE where autopsies were conducted .

On DATE the ORG held a press conference in GPE . PERSON , the KDP Chief for the LOC region , stated that , upon receiving information that several shepherds had been arrested by NORP soldiers , he had visited the NORP army commander in NORP and had asked for their release . He had handed him a list of names . The commander had told him that he would take action . The commander had radioed his troops and had told GPE that the men and sheep would be released . ORG had returned to his office . Having received no news , he had returned to the commander who had promised that the shepherds would be released after the military operation . SN made CARDINAL or CARDINAL representations to the commander during DATE . The NORP army having withdrawn during the night , SN returned to the commander the following morning . On that occasion the commander denied that the shepherds had been arrested . He told GPE that they might have been killed . At the press conference SN exhibited the list he had given to the NORP commander containing the names of the QUANTITY shepherds . The CARDINAL applicants were also present at the conference and answered questions .

On DATE the bodies of PERSON and PERSON were also found in a state similar to that of the bodies of the other CARDINAL shepherds .

On DATE the husband of the first applicant was killed in a separate incident . The CARDINAL brothers of the husband of the fifth applicant were also killed in a separate incident . These incidents do not form part of the present application .

On DATE the CARDINAL applicants and other witnesses were interviewed by PERSON and PERSON in the presence of the muhtar of the NORP area of GPE .

The CARDINAL applicants have since filed several petitions with the authorities of the region requesting that an investigation be conducted into the deaths of their relatives . They applied to the Governor of GPE and gave statements . The Governor said that the deaths would be investigated . However , the applicants have not been informed of any follow - up to the Governor 's undertaking .

The respondent Government confirm that a NORP military operation took place in northern GPE DATE and DATE . The NORP forces advanced to LOC . The records of the armed forces do not show the presence of any NORP soldiers in the area indicated by the applicants , the GPE village being QUANTITY south of the operation zone . There is no record of a complaint having been made to any of the officers of the units operating in the GPE region .

Following the events , the applicants ' statements were taken on DATE by Dr PERSON and PERSON in the GPE village of GPE in the governorate of GPE ( GPE ) close to the NORP border .

The applicant was the mother of PERSON , who was allegedly killed under torture by members of the NORP army on DATE , and the wife of PERSON who was also allegedly killed by members of the NORP army in a separate incident on DATE . The applicant claimed the following in relation to the alleged incidents :

“ I and the rest of the villagers heard that the NORP army was in the area the day before my son was killed . We had seen many military helicopters dropping soldiers and food in the valley near our village .

In TIME of DATE , I prepared food for my shepherd son as usual . We decided to go out to herd sheep . We thought the NORP army would not harm us . We ( QUANTITY shepherds and QUANTITY women ) left the village and walked towards the LOC area . The women were walking in front of the men . Then we met many NORP soldiers who immediately arrested us and began to hit us . They slapped us around the face , kicked us and were very angry and rude . Then they separated us and asked the women to go back to the village . We saw the soldiers take the QUANTITY shepherds towards the cave . We went back to the village and told the rest of the village about what had happened .

Some of the men from the village went and asked one of the NORP army officers to let them retrieve the flocks of sheep from the valley , but he refused and denied having arrested our men . Then some men went to ORG and asked for the NORP army officer in charge and requested him to release the shepherds and to let them recover their flocks of sheep . The men went CARDINAL times that day to get information about the men . The NORP army officer said that if the men were arrested they would be released . He gave permission for the men to bring back the flocks of sheep , but denied knowing anything about our shepherds and warned the men not to go and look for our shepherds . When they asked why they should not go looking for our shepherds , the officer got angry and did not answer .

Once again , some villagers went to the valley to look for our shepherds . They found our flocks of sheep in the early afternoon but still did not know what had happened to our shepherds . We also informed the party ( ORG ) . They said that they met with the NORP military officers on many occasions but this did not change our men 's fate .

DATE , after the NORP army withdrew from our area , the men went to the surrounding area to look for our shepherds . They found my son and QUANTITY other shepherds DATE . Their bodies were brought back to the main road and from there their bodies were taken to the hospital in GPE for medical examination . The other CARDINAL bodies were found DATE .

The witness replied to the following questions :

Q : Where do you come from originally ?

A : We are originally from the village of GPE and have been living in GPE collective village ever since being moved here under PERSON 's regime .

Q : How far is the place where they killed your son ?

A : TIME walk from our village .

Q : How old was your son ?

A : He was DATE .

Q : Who were the other CARDINAL women who were with you that day ?

A : PERSON , PERSON and PERSON .

Q : Can they give us testimonies ?

A : Yes .

Q : How far from here is the place where they killed your son ?

A : TIME walk .

Q : Who do you think killed your son ?

A : The NORP .

Q : How do you know that it was the NORP who killed your son ?

A : I know it was the NORP . My son was innocent like the other shepherds and the NORP killed them . I saw the NORP soldiers take away my son and the rest of the shepherds .

Q : Why would the NORP army kill your son ?

A : I do n't know . He did not do anything wrong . He was innocent . They killed an innocent man . They ( the NORP ) want to kill NORP .

Q : Was your son armed ?

A : No , apart from a lighter he did not have anything on him .

Q : Do you have any witnesses that the NORP army killed your son ?

A : Yes . We were CARDINAL women who saw the NORP army take away our men . You can also ask the Party ( KDP ) because they talked to the NORP army officers .

Q : How did they kill your son ?

A : They cut him to pieces . His ears were cut off , they took his tongue out of his mouth . I can not describe it to you . They have not left anything . They have chained him and dragged him . His body was full of bullets , his genitals were cut .

Q : Have you submitted a petition anywhere in relation to the NORP army ?

A : Yes .

Q : Where ?

A : In GPE , GPE , and I and the others have spoken to many foreign groups .

Q : Is there an investigation into the killings ?

A : No , they [ Dohok Governor ] keep telling us that they will investigate . Each CARDINAL takes statements from us and they say God will help you .

Q : Have you been given autopsy reports on your son and husband ?

A : No , I have n't . I will try to get one for you .

Q : Do you have anything more to add to your statement ?

A : I would not be able to tell you everything that happened because my heart is burning . I know my son and husband were innocent and did not have any problem with anybody . The NORP left me with my children and I do not know how I will live . Please help to find out the truth . ”

The applicant was the wife of PERSON , a shepherd who was allegedly killed by members of the NORP army . In her statement the applicant alleged the following :

“ It was TIME , on DATE , and I was at home when I heard the sound of gunshots in the distance . We had heard that the NORP army was in the area and our shepherds were out with the sheep , so I was concerned . I went out to find out what was happening . Some other people were outside and a man was telling them that the NORP army was near our village and that the shooting was coming from the direction of the cave . That is in the direction of GPE , not far from the village . The man said that it seemed to him that the NORP troops were firing inside the cave .

We talked about what to do and we thought that we would go to find the shepherds . I and the other women went out to look for the men . We thought that we would not be harmed if it was only women who went to look .

When we saw the soldiers from a distance , our men were with them . The soldiers saw us and they began to fire at us to frighten us . We went away from them and watched what was happening . We saw our shepherds with the NORP soldiers but we could not do anything . We saw some more soldiers down in the valley and we went over to them to ask them to let us go to the shepherds . We begged them , but they pointed guns at us so we went away from them .

We spent some time searching for the men and checked the cave , but there was no one there . We were still looking for the shepherds when we saw a NORP army helicopter land nearby . We went to another group of NORP soldiers and asked them to let us see the shepherds but they did n't let us . We searched for a long time but we could not find the shepherds . Then we went back to the village to tell the men of the village about what had happened . They went to the ORG ( ORG Officials ) to get help and some men went to the NORP officers in the area to have the men released . The men , headed by the local ORG chief , went to the NORP officer in charge at PERSON to ask him to let the men go and to let the sheep be brought back but he said he did not know anything . We had seen our shepherds with the NORP soldiers and so we were frightened for the safety of the shepherds .

DATE some people went out again to search for the men . They found the CARDINAL bodies near the cave . My husband 's body was among them . The bodies were brought to the main road so they could be taken to GPE hospital in GPE . The village people kept looking for the other CARDINAL missing shepherds . DATE they found their bodies . ”

The applicant was the wife of PERSON , one of the shepherds allegedly killed by members of the NORP army . She stated :

“ TIME , DATE , I set out with my husband and the other shepherds and women to tend to the sheep . There were CARDINAL shepherds and QUANTITY women including myself . We had not gone very far from the village when we met the NORP soldiers . There was a large number of soldiers and they surrounded us . They started to attack us and hit us with their rifle butts and shouted abuse at us . They hit the women as well as the men . After some time they told the women to go back to the village . The men were still with the soldiers when we left . At this time there were QUANTITY shepherds with the soldiers .

We went back to the village and told the men of the village what had happened .

The men of the village set out to go to the NORP army officers to ask them to let the shepherds go as they were not doing any wrong . The men made many representations to the army officials throughout the day and they went to PERSON to make further representations . They said that they were told to return to the village and warned not to look for the men . The men went out to look for the shepherds and found the flocks of sheep but there was no trace of the shepherds . The following day the village men once again went off to look for the shepherds . They found the bodies of CARDINAL of them . DATE the bodies of the other CARDINAL were found .

I saw the body of my husband . He had been killed by many bullets . The body was taken to the hospital .

I want you to take the necessary action against the soldiers for what they have done to my husband . ”

The applicant was the mother of ORG Izat and the wife of PERSON ( PERSON ) , who was allegedly killed under torture by members of the NORP army between the QUANTITY and DATE . She claimed the following :

“ From our village we could see the army down in the valley on DATE before the incident in which my husband was killed .

On TIME CARDINAL DATE I went with my husband and son to herd sheep . We met with the other women and men and set off in the direction of GPE . We went with the men because the men thought that if we were with them there would not be any trouble . We walked ahead of the men . There were CARDINAL men and QUANTITY women in the group . The NORP soldiers stopped us . They hit us and beat us with their rifle butts and humiliated us . I was frightened for my life . The soldiers told us to go back and they took our shepherds away with them . We ran back to the village and told the men in the village what had happened .

We went back to the valley and spent the rest of DATE looking for our shepherds . Some men went to the NORP soldiers to ask them to let our shepherds go . Then some men went to ORG and asked a high - ranking NORP army officer to release our shepherds and to let us bring the sheep back . The men went many times that day to get information about our shepherds . Party ( ORG ) representatives also went to the NORP army officers many times , but nothing happened .

DATE the bodies of my husband and son were found with terrible things done to them . They were found in the cave . The bodies of CARDINAL other shepherds were found with them . The other CARDINAL shepherds ' bodies were found DATE .

It was a terrible thing that was done to our shepherds . My husband and son did not do anything wrong . I do not know why they did this to him and the others . Please help us . We have nothing left . ”

The applicant was the wife of PERSON , who was allegedly killed under torture by the NORP army between QUANTITY and DATE . She stated :

“ DATE of the incident I got ready to go out to herd sheep with my husband and the other shepherds . We had heard that the NORP army was in the area but we did not feel in danger . We went to do our work . I was going with my husband to the hills to herd the sheep . We all went together . I walked with the other women . We were walking along when the soldiers appeared in front of us . They came all around us and attacked us with their rifle butts and beat us .

They were shouting at us all the time they were beating us . Then we were told to go back to the village and the men were still with the soldiers . We saw the soldiers take our men towards the cave . There were CARDINAL men . We were QUANTITY women . We went back to the village and told the rest of the villagers about what had happened .

I know that some of the men went and asked one of the NORP army officers to let them bring the flocks of sheep back from the valley and petitioned the officer to release the men . Later that day the men also went to ORG to the larger military base and asked the officer in charge to let our men go and to return the flocks of sheep , but they did not get any information about our men . The men were warned not to go looking for the shepherds .

The body of my husband was found DATE . His body was in pieces . He had been shot many times . I do n't know why the NORP did this to him . He was an innocent man and we were on our way to herd our sheep . The NORP killed my husband and they also killed his CARDINAL brothers [ in a separate incident ] . We had no trouble with the army and there was no reason to kill our men .

The body of my husband was brought to the hospital in GPE for medical examination . The NORP are gone now , but I am left with my children with no father . I do not know who to petition about the terrible things that have happened to us . ”

The applicant was the wife of PERSON , CARDINAL of the shepherds allegedly killed by members of the NORP army . The applicant claimed the following in her statements :

“ It was TIME of DATE and I woke up to prepare breakfast for my children . While I was preparing breakfast I heard the sound of gunfire . I was startled and went out of the house . I saw our villager and asked him what had happened .

He told me that the NORP army was near our village , and that the shooting came from the direction of the cave . The only cave near the village is in the direction of GPE . He told me that it seemed to him that the NORP troops were firing inside the cave . After a while I and QUANTITY other women , PERSON , PERSON , GPE , PERSON , left the village to go in the direction of the gunfire . We were very concerned about our husbands and sons who were grazing our animals in the mountains .

Then we saw the shepherds with the NORP soldiers . We went towards them and when we were still far away from them the NORP troops suddenly fired on us without any warning . Probably they wanted to frighten us , so that we would not approach them . We saw our shepherds being taken away by the soldiers . We went further down in the valley and met some other NORP soldiers . We begged them to release our shepherds and to let us talk to them . They told us that they would kill us if we did not go back to the village . Despite many pleas and much begging they forced us to go back to the village .

We had to leave the soldiers and we went and hid ourselves in a place in the valley in order to be able to see what the soldiers were going to do next . CARDINAL soldiers saw us and came over to us and threatened us to go back to our village or we would be killed . They were very angry when they saw us and told us “ We do n't want to see you around again . Go back to your home , otherwise we will kill you . ”

We left our hiding place and went to the cave to look for the shepherds . Our men were not there . Then we saw a NORP army helicopter land nearby . For the third time we tried to see our husbands and sons , so we went to the NORP soldiers and asked them to let us see the shepherds , but they did n't let us . When we did n't see them in the cave we thought that they might have taken them somewhere else . We spent until TIME in the area trying to find them . Then we decided to go back to the village . The village men came towards us when we were near the village and wanted to find out what had happened . We told them that the NORP troops took the men , but we do n't know what happened after that . The village men went to ORG with the representatives of the party , [ ORG ] ORG and met the military commander there . They told him the story and asked him to release our shepherds . The NORP army commander first told him that he did n't know anything about the arrest of the shepherds . Later on , the Commander told the ORG people that they will soon release the shepherds , but this never happened . We were left confused and not knowing what to do . They went back to ORG and once again asked the NORP troops to let them see the shepherds , but they did not get any further news about our men . I ca n't remember everything the NORP commander told the party men , but you can ask the party , they will tell you everything .

DATE , the village people went to the valley once again to look for them and they found the dead bodies of CARDINAL of them . They brought their bodies to the main road . Afterwards the village men took the bodies to GPE hospital in GPE . The village people kept looking for the CARDINAL other missing shepherds . DATE they found their bodies . CARDINAL of them was my husband 's . They took their bodies to GPE hospital in GPE .

The following questions were asked .

Q : How many soldiers were there ?

A : A lot , but I do n't know how many , but the soldiers were everywhere .

Q : How do you know that the soldiers were NORP ?

A : Because they were speaking NORP and it was the NORP army which was around at the time . The NORP had been in the surrounding area over DATE . They were all over the place . We do not have any other army here . The NORP army left some time ago and their uniform was different from the NORP army uniform .

Q : You say you saw a NORP helicopter landing nearby . How do you know it was a NORP army helicopter and what happened ?

A : I told you , we have n't seen any other army in the area for sometime . The other alternative is the NORP army . But you see , we have n't seen the NORP army recently and we know what they look like . The soldiers were not NORP soldiers . They left some time ago . The helicopters dropped the soldiers and food in the valley .

Q : You say the NORP army threatened to kill you if you did n't leave the place ? How ?

A : By pointing their guns at us and using bad words and shouting at us . We were asked to leave the place and this kind of thing .

Q : Did you see your husband 's body ? Can you describe his body ?

A : I saw it for a short time . I saw that his ears were cut [ crying ] I ca n't describe to you , those who committed this crime can not be human beings and I ca n't understand why they did n't just shoot him with a gun . Why did they kill him in this way ? How can they cut the body of my husband like this ? They are not human .

Q : Was your husband armed ?

A : No , he has never carried a gun in his life .

Q : Had your husband any connection with the ORG ?

A : No . We have never seen the ORG . We have never seen their peshmargas . We never had trouble with them .

Q : So why did the NORP troops kill your husband ?

A : I do not know . Because we are NORP , maybe they do not like us . They kill us because we are defenceless and there is no one to defend us against them . ”

Mr Nerwayi claimed the following during the press conference :

“ I was in ORG town when reports came to me that the NORP army had attacked the LOC and the NORP area at TIME

Past experience with the NORP army has taught us that , wherever they go , they assault poor people . As an example , before the current incident QUANTITY of our citizens were on their way back to LOC village . The NORP soldiers arrested them . After assaulting and beating them , killing one and wounding the other . I reported this incident to the NORP army commander and asked him to keep us informed about their operations , so that we can ask the villagers to leave their villages before the operations to avoid civilian casualties .

I heard about the NORP army operation in LOC , and I went early in the morning to the NORP army commander in NORP . I told him that I received information about the arrest of several shepherds by the NORP army . I officially gave him this list ( showing a list of names of the deceased ) of the shepherds reported to have been arrested by the NORP army . I told him that the people who had been arrested were shepherds and were known to us . I said that they were out herding their sheep and I asked the commander to send orders to release them as they were innocent people minding their own business .

He told me he would take action . Indeed , he radioed his troops , and then told me that he ordered them to release the men and the sheep . I went back to my office in NORP . During DATE , as I had not heard any news of the shepherds , I made CARDINAL or CARDINAL representations to the NORP army commander , asking him to release the men as soon as possible . Each time , he promised that he would order his soldiers to release them and made excuses for not releasing them . He told me after the military operation he would let the men go . The NORP army withdrew ( from the LOC ) during TIME , and TIME I went back to the NORP army commander .

At that time , he denied having arrested the men . He said go and look for them : they might have been killed . We told the shepherds ' relatives , who went to the area once again and found the shepherds ' bodies .

I am giving this account so that you know that we made representations to the NORP army and asked the NORP army to release the shepherds , but they did not . I hope that you publicise the incident so that who killed these men is known . I hope that you will do something both to prevent future atrocities by NORP army and end the oppression they bring upon us . ”

A post - mortem examination was performed by Dr PERSON , a specialist surgeon , at ORG of the Iraqi Ministry of Justice , on the bodies of PERSON , PERSON , PERSON , Abdulkader PERSON , PERSON , PERSON and PERSON .

Dr Abdula Salih diagnosed the cause of death as brain damage due to gunshot wounds . He noted the presence of gunshot wounds , cutting and other wounds on the bodies of the deceased .

This video recording , compiled from various NORP TV stations , contains pictures of NORP army presence in northern GPE DATE and DATE . It further comprises interviews and news reports about the operations conducted by the NORP army in northern GPE .

On DATE ORG held a press conference attended by of the representatives of international human rights organisations and agencies , representatives of ORG ( “ KDP ” ) and of the local assembly in northern GPE as well as by the relatives of the deceased persons . The ORG spokesperson stated that the purpose of the press conference was to give information about the NORP army 's encroachment on northern GPE since DATE .

It was alleged that NORP armed forces were in control of the Sersing , PERSON and GPE . As a result of the military campaign launched by the NORP army at the relevant time , allegedly QUANTITY persons had died , QUANTITY persons had been wounded , CARDINAL houses had been burned and the inhabitants of CARDINAL villages had left their homes for reasons of insecurity .

The ORG spokesperson alleged that on DATE TIME persons had been arrested by members of the NORP troops . These persons were PERSON , PERSON , PERSON , GPE , ORG , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON . The latter QUANTITY persons , all women , were released and informed their relatives in their village . The villagers informed a ORG officer in charge of the Amadia region , PERSON , about the arrest and detention of CARDINAL men by the NORP army . Mr Shookri went to speak to the leader of the NORP troops and asked him to release these men . He also submitted a petition containing the names of the persons under arrest . The leader of the NORP troops promised that they would be released . However , following the withdrawal of the NORP army troops , the villagers found the corpses of QUANTITY of the CARDINAL men . Their bodies had been mutilated and some of them had been decapitated . At the end of the press conference , Mr Shookri took the floor and stated that the leader of the NORP troops had denied that they had killed these men . On DATE CARDINAL men were still missing .

The ORG spokesperson stated that they had condemned the acts of the NORP army in the region and called on them to withdraw . He noted that they would seek compensation from ORG for the crimes committed by the NORP army .

The ORG spokesperson also called on the ORG to withdraw from northern GPE . He remarked that the inhabitants were unable to construct houses and set up new villages along the NORP border on account of ORG activity over DATE . He underlined in this connection the difficulties in controlling the QUANTITY of border .

At the end of the press conference , the mutilated bodies of the deceased persons and bullets removed from them were shown .

In his written statements PERSON claimed that the NORP army had carried out cross - border operations , called “ hot pursuit actions ” , against ORG militants in DATE , DATE , DATE before the Gulf war and on DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE after the Gulf war . He alleged that these operations were aimed at preventing the incursion of ORG militants into GPE and from dissuading the NORP groups from setting up a NORP state in northern GPE . He noted , with reference to the statements made by the former head of ORG , General PERSON , in DATE that NORP troops were positioned in the vicinity of a small airport in the NORP area of northern GPE .

In his report dated DATE , PERSON noted that since DATE CARDINAL villages had been subjected to intermittent attacks from artillery fire from the hills on the NORP border or from helicopters and aircraft . The artillery fire discharged by the NORP army caused damage to buildings and killed one person and wounded QUANTITY others . In his opinion , the reason for these attacks was to create a buffer zone south of the border and to cut off the logistic support given to the ORG by the villagers in the region .

The NORP security forces carried out QUANTITY major cross - border operations DATE and DATE . The largest operation , called “ Çelik ( steel ) operation ” and carried out with the participation of CARDINAL troops accompanied by tanks , armoured vehicles , aircraft and helicopters , lasted DATE between DATE and CARDINAL DATE . The NORP troops penetrated QUANTITY southwards into GPE and QUANTITY to the east .

The Government submitted a document , furnished by ORG ( “ KDP ” ) , one of the CARDINAL main NORP factions in northern GPE , which stated :

“ At the time of the incident Mr PERSON was a co - ordinator with the NORP military and no accusations were made against the army since no investigation was conducted yet in order to come to any such conclusions . The families of the killed individuals , being NORP citizens , approached the LAW and local authorities to report the incident , which is a natural thing to do .

The ORG was active in the PERSON ( GPE ) region at the time of the incident and many confrontations were reported between ORG peshmergas and the ORG . ”

A DATE newspaper , “ PERSON ” , reported in its edition of CARDINAL October CARDINAL that CARDINAL of the NORP leaders , Mr PERSON Barzani , had stated during his visit to GPE that ORG had paid compensation to the relatives of CARDINAL persons who had lost their lives during an aerial campaign of the NORP army in northern GPE on DATE . PERSON said that a serious investigation had been carried out into the incident . He further noted that the attack had not been deliberate and that the families had received the compensation awarded to them . According to sources close to Mr PERSON , the payment , which was unprecedented , was made in cash .

After having viewed video footage showing the bodies of a number of NORP peasants ( see paragraph CARDINAL above ) , PERSON observed the following :

“ ... All the bodies show a number of gunshot wounds . The cameraman tends to concentrate on the larger wounds , but smaller circular wounds are also shown . The wounds all appear to be caused by high velocity bullets . A typical gun that would fire such bullets would be a MONEY or PERSON rifle . The larger wounds on the bodies are exit wounds of bullets , the wounds being made larger in some cases probably by bone fragments exiting the body . The smaller wounds are the entrance wounds of the bullets .

It is not possible to determine the range at which these people were shot at from this vdeo . Some of the wounds are near the genitalia , but these all appear to be bullet wounds , and there is no evidence of any other weapon being used , or of deliberate genital mutilation .

The video also shows bullet shells with the marking “ ORG ” . ORG is the mark of the manufacturer ORG of GPE , GPE , GPE .

Overall the bodies all show multiple gunshot wounds in keeping with bullets fired from high velocity rifles . ”

The Criminal Code makes it a criminal offence

( a ) to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;

( b ) to subject an individual to torture or ill - treatment ( Articles CARDINAL and CARDINAL ) ;

( c ) to commit unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Article CARDINAL ) or murder ( Article CARDINAL ) ;

If the suspected authors of these criminal acts are military personnel , they may also be prosecuted for the above - mentioned crimes . Proceedings in these circumstances may be initiated by the persons concerned ( nonmilitary ) before the competent authority under LAW or before the suspected persons ' hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

A description of relevant international legal materials can be found in PERSON and Others v. GPE and CARDINAL other GPE ( dec . ) [ ORG ] , application no . CARDINAL , § § DATE , ORG CARDINAL-XII .


CASE OF MEHMET NURİ ÖZEN AND OTHERS v. TURKEY [Extracts]

Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient

András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto

The applicants are NORP nationals .

They are all serving sentences in NORP high - security prisons , where the authorities refused to dispatch their letters written in a language other than NORP . They all brought proceedings before the competent domestic courts to oblige the prison authorities to dispatch their letters , but to no avail .

At the time they lodged their applications , the applicants were serving their sentences in the F - type prison in DATE or the Bolu prison highsecurity prison .

On DATE ORG at the applicant ’s prison proceeded , in accordance with section QUANTITY of Law no . DATE on the execution of sentences and preventive measures ( “ Law no . CARDINAL ” ) , to check a letter the applicant had written to another prisoner in NORP . After reminding him that letters should in principle be written in NORP , they informed him that they could not have the letter translated , for lack of staff , so they were unable to ascertain , as required under LAW on prison management and the execution of sentences ( “ the LAW ” ) , whether the content of the letter was “ inoffensive ” . They therefore decided to return the letter to the applicant .

On DATE , on the basis of the case file , the Bolu enforcements judge dismissed the applicant ’s appeal against that decision .

On DATE ORG , also dismissed an appeal lodged by the applicant against that decision .

On DATE and DATE ORG decided to keep CARDINAL letter written by each of the applicants in NORP . Arguing that the prison had neither the staff nor the money to have them translated , they explained that the letters could be sent once they had been translated , at the applicants’ expense , by a sworn translator and their content had been found to be inoffensive .

On DATE , based on the case file , the NORP enforcements judge dismissed an appeal lodged by the applicants . That decision was reached after the judge examined the public prosecutor ’s submissions , according to which “ it [ was ] necessary to have the correspondence DATE which was written in a language other than the official language – translated in order to have it verified in accordance with section QUANTITY of Law no . DATE ; there [ were ] no legal provisions requiring the prison to cover the cost of the translation ; as the interested parties themselves had not paid for a translation , there [ was ] nothing unlawful about the impugned decisions ” .

On DATE and DATE , based on the case file , ORG dismissed an appeal lodged by the applicant against that decision , having found no legal or procedural defect .

On DATE ORG decided , pursuant to section CARDINAL § CARDINAL of Law no . CARDINAL and LAW , to seize a letter the applicant had written to his mother in NORP . They explained that they had been unable to decipher the content of the letter because the prison staff did not understand NORP .

On DATE , based on the case file , the enforcements judge dismissed an appeal lodged by the applicant . That decision was reached after the judge examined the public prosecutor ’s submissions , according to which “ it [ was ] necessary to have the correspondence DATE which was written in a language other than the official language – translated in order to have it verified in accordance with section QUANTITY of Law no . DATE ; the prison [ had ] no budget for translation costs . As the interested party had not paid for a translation himself , there [ was ] nothing wrong with the impugned decision ” .

On DATE , based on the case file , ORG dismissed an appeal lodged by the applicant against that decision , having found no legal or procedural defect .

On DATE , ORG decided not to send a letter the applicant had written to his mother in NORP , because they were unable to have it translated and thus to understand its content and determine whether it was “ inoffensive ” .

On DATE they reached a similar decision concerning a letter written by the applicant to his sister in NORP .

On DATE and DATE respectively , on the basis of the case file , the Bolu enforcements judge dismissed the applicant ’s appeal against those decisions not to send his letters , considering that the ORG ’s decisions were fully in keeping with section CARDINAL § CARDINAL of Law no . CARDINAL and Rule CARDINAL § CARDINAL of FAC , as it had not been possible to determine whether the content of the letters matched any of the criteria set forth in section CARDINAL § CARDINAL of Law no . DATE .

On DATE and DATE respectively , basing itself on the case file , ORG rejected the applicant ’s complaint against these decisions , noting that the refusal to dispatch the letters had been based not on the fact that they were written in NORP but on the fact that their content was incomprehensible and therefore impossible to verify having regard in particular to the imperatives of order and security .

On DATE ORG decided to seize a letter the applicant had written in NORP , in conformity with section QUANTITY of Law no . DATE and rule CARDINAL § CARDINAL of ORG , on the grounds that they had been unable to decipher the content of the letter because the prison staff did not understand NORP .

On DATE , based on the case file , the enforcements judge rejected the applicant ’s appeal . That decision was reached after the judge examined the public prosecutor ’s submissions , according to which “ it [ was ] necessary to have correspondence which was written in a language other than the official language translated , in order to have it checked in accordance with section QUANTITY of Law no . DATE . The prison [ had ] no budget for translation costs . As the interested party had not paid for a translation himself , there [ was ] nothing wrong with the impugned decision . ”

On DATE , based on the case file , ORG dismissed an appeal by the applicant against that decision , finding that there had been no procedural defect or error of law .

On DATE , relying on Rules CARDINAL , CARDINAL and CARDINAL of ORG , ORG decided not to send a letter the applicant had written in NORP . They explained that the prison had no staff to translate the letter and took note of the prisoner ’s refusal to cover the cost of translation himself .

On DATE , based on the case file , the PERSON enforcements judge found that the ORG ’s decision was in conformity with prison Rules CARDINAL , CARDINAL and CARDINAL .

On DATE , on the basis of the case file , ORG rejected an appeal lodged by the applicant .

On DATE , ORG decided to refuse to send a letter the applicant had written to his father in NORP , on the grounds that they could not understand its content and determine , as required by LAW , whether it was “ inoffensive ” . After pointing out that correspondence should , in principle be written in GPE , they explained that they did not have any staff to translate the letter .

On DATE , noting that the letter in question contained characters which were not in the NORP alphabet , the Bolu enforcements judge dismissed the applicant ’s appeal , pointing out that while the right to correspondence was guaranteed , it was not unlimited , and that in this particular case it was not possible to ascertain whether the content of the letter fell within the scope of the restrictions set forth in section QUANTITY of Law no . DATE .

On DATE ORG observed that the reason behind the decision not to send the letter was not the fact that it was written in NORP but the fact that its content was incomprehensible , making it impossible to carry out the verification provided for in section QUANTITY of Law no . DATE .

Section DATE of Law no . DATE of DATE on the execution of sentences and preventive measures , published in ORG on DATE , reads as follows :

“ CARDINAL . With the exception of the restrictions set forth in this section , convicted prisoners shall have the right , at their own expense , to send and receive letters , faxes and telegrams .

NORP The letters , faxes and telegrams sent or received by prisoners shall be monitored by the reading committee in those prisons that have such a body , or , in those which do not , by the highest authority in the prison .

NORP If letters , faxes and telegrams to prisoners are a threat to order and security in the prison , single out serving officials as targets , permit communication between terrorist or criminal organisations , contain false or misleading information likely to cause panic in individuals or institutions , or contain threats or insults , they shall not be forwarded to the addressee .

Nor shall [ letters , faxes and telegrams of the type described above ] written by prisoners be dispatched .

Rule CARDINAL of LAW on prison management and the execution of sentences , published in ORG on DATE , reads as follows :

“ CARDINAL . Convicted prisoners shall have the right , at their own expense , to send and receive letters , faxes and telegrams .

Rule CARDINAL § CARDINAL of FAC reads as follows :

“ In the framework of the right to send and receive correspondence under LAW above , letters , faxes and telegrams written by prisoners shall be handed , in open envelopes to the staff responsible for surveillance and security , who shall transmit them to the reading committee ... A ‘ ORG stamp shall be affixed to those letters which , upon examination , appear inoffensive . [ Such letters ] shall be placed in envelopes and given to the postal services ... ”

Rule CARDINAL of the Prison Regulations reads as follows :

“ CARDINAL . Those incoming or outgoing letters which are not considered inoffensive by the reading committee shall be transmitted to ORG within TIME . If ORG finds a letter to be offensive in full or in part , the letter shall be kept until the time - limit for filing a complaint or an objection has expired , without the original being altered or destroyed . If a letter is found to be offensive in part , the original shall be kept by the prison authorities and a photocopy delivered – with the offending passages struck out in such a way as to be illegible – together with the ORG ’s decision . If the whole letter is found to be offensive , only the decision of ORG is delivered . ORG decision shall become final upon expiry of the time - limit for applying to the enforcements judge , which shall start to run on the date of delivery . If the matter is sent before the enforcements judge , his decision shall become final upon expiry of the time - limit for appeal , which shall start to run on the date of the decision of the enforcements judge . If an appeal is made to set aside the decision of the enforcements judge , the decision of the court examining the appeal shall apply .

NORP The notice given to the prisoner must inform him that if no complaint is lodged with the enforcements judge within DATE of ORG decision being served , or if no appeal against the decision of the enforcements judge is lodged with ORG within DATE of its being served , the decision of the ORG shall become final , and that the letter concerned will be forwarded after the offending passages have been deleted and rendered illegible , or that the whole letter is considered offensive and will not be delivered .

Those letters considered offensive in full or in part shall be kept by the prison authorities for use if an appeal is lodged at the national or international level . ”

On DATE ORG of ORG sent public prosecutors and prison governors as well as enforcements judges , a circular concerning translation costs . Referring to ORG CARDINAL and CARDINAL of LAW , the relevant passages read as follows :

“ There are certain things we wish to bring to your attention ... , in order to put a stop to any uncertainty concerning the exercise of the right to receive or send publications , letters , faxes or telegrams written in a dialect or language other than NORP ....

Examination of prison budgetary practices reveals that there is no budget provision for the translation into NORP of periodical or non - periodical publications and correspondence written in a dialect or language other than NORP . If a prison is unable to provide this service using local resources , it is possible to solve the problem by charging the cost to the “ purchase of services ” budget head , under the sub - head ‘ purchase of other services’ , which includes the item ‘ expenditure on translations not counted as author ’s rights’ .

In this connection ,

It is sufficient to provide a “ summary report ” summarising the general content of documents such as periodical or non - periodical publications , letters , faxes and telegrams written in a language other than NORP ;

NORP If there are prison staff with a knowledge of the language or dialect concerned , they should be asked to prepare the summary report ;

NORP If the problem can not be resolved in the manner described in the preceding paragraph , it is possible , for a ‘ ORG fee :

( a ) to make use of local resources and , at this stage , take advantage of the skills of staff working in other administrative entities ;

( b ) if that also proves impossible , to have recourse to reliable persons in the area or district who are familiar with the language or dialect concerned . ”


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented by Mr Ľ. GPE , a lawyer practising in GPE . The respondent Government were represented by PERSON , their Agent .

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

Proceedings concerning the applicant ’s claim for lost income

On DATE the applicant claimed lost income and damages in the context of proceedings concerning the termination of his service as a trade union representative .

On DATE the ORG decided to deal with the claim in a separate set of proceedings .

On DATE the applicant withdrew his claim for damages . The proceedings in respect of this claim were discontinued on DATE . As to the remainder of the applicant ’s action , the proceedings were stayed pending the outcome of another set of proceedings in which a preliminary question was to be determined .

On DATE ORG dismissed the action . On DATE ORG quashed the first instance judgment and remitted the case to ORG .

On DATE the proceedings were stayed at the applicant ’s request .

On DATE the ORG discontinued the proceedings . On DATE and on DATE the applicant appealed against this decision . The proceedings are pending .

Proceedings concerning the applicant ’s actions for protection of his personality rights

On DATE the applicant filed CARDINAL actions with ORG alleging a violation of his right to protection of his good name and reputation in the context of the termination of his services as a trade union representative .

On DATE ORG granted the applicant ’s request to extend the action to include CARDINAL other defendants .

On DATE ORG granted the applicant ’s request that his claims be amended . The defendants were requested to submit comments on the new claims .

On DATE the case was assigned to another judge . A hearing before ORG was scheduled for DATE . On DATE the applicant requested that the proceedings be stayed with the explanation that he had introduced an application under LAW with ORG .

The proceedings before ORG have not yet ended .

LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Pursuant to LAW , as in force until DATE , ORG could commence proceedings upon a petition ( “ podnet ” ) presented by any individual or corporation claiming that their rights had been violated .

As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW which reads as follows :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

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

In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL have been violated . ” ...

The implementation of the above constitutional provisions is set out in more detail in Sections CARDINAL of Act No . CARDINAL/CARDINAL ( LAW ) , as amended with effect from DATE .

Pursuant to LAW ) of LAW , a person who wishes to bring proceedings before the Constitutional Court shall submit an authority for the lawyer representing him or her in the proceedings .

After DATE the ORG delivered a number of decisions in which it found a violation of LAW ) of the LAW , ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred .

According to an explanatory letter by the president of ORG of DATE , nothing prevents ORG from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed .


Violation of Article 5 - Right to liberty and security

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of bribery , several counts of evasion of tax and customs duties and several counts of forgery , committed in an organised criminal gang .

On DATE the GPE ORG remanded him in custody , relying on the reasonable suspicion that he had committed the offence in question . The court referred to the complexity of the case and the considerable number of accused . It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings , given the risk that he might tamper with evidence and induce witnesses to give false testimony . The court also stressed the severity of the anticipated sentence .

Later , CARDINAL other persons were detained and charged in connection with the investigation against the applicant .

The applicant ’s appeal against the detention order , like his further appeals against decisions prolonging his detention and all his subsequent numerous applications for release and appeals against refusals to release him , were unsuccessful . In his applications and appeal , he argued that the charge against him was based on unreliable and contradictory evidence .

In the course of the investigation , the applicant ’s detention was prolonged on DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE and CARDINAL DATE .

On DATE ORG lodged a bill of indictment with ORG . The applicant was charged with bribery , several counts of evasion of tax and customs duties , several counts of forgery and membership of an organised criminal gang . The bill of indictment also concerned CARDINAL other persons .

Further decisions extending the applicant ’s detention were taken on DATE , DATE and DATE .

In a decision given on DATE , ORG criticised the manner in which the investigation had been conducted . It also referred to delays in the proceedings which amounted to DATE . It acknowledged that almost all the evidence had been gathered and that the risk that the applicant would tamper with evidence had been marginal .

In a decision given on DATE , ORG ruled that the applicant could be released on bail on payment of security of MONEY . The applicant requested the court to reduce the amount of bail . On DATE the court reduced it to MONEY . The applicant paid the security and he was released on DATE .

The criminal proceedings are currently pending before the firstinstance court .

The relevant domestic law and practice concerning the imposition of detention ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . GPE , § § CARDINAL , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

On DATE ORG adopted on the Interim Resolution concerning the judgments of ORG in CARDINAL cases against GPE relating to the excessive length of detention on remand ( “ the DATE Resolution ” ) . Noting that the number of cases in which ORG had found similar violations was constantly increasing . It concluded that the number of the ORG ’s judgments finding GPE in violation of LAW revealed a structural problem . A more detailed rendition of the DATE Resolution can be found in the ORG ’s judgment given in the case of ORG v. GPE ( see ORG v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ; not final ) .

On DATE ORG Commissioner for Human Rights released the Memorandum to the NORP Government concerning , among other issues , the use of the detention measure in GPE , stressing that examples of cases brought to the ORG where pre - trial detention had lasted DATE were not uncommon . The Commissioner urged the NORP authorities to review the application and functioning of pretrial detention in NORP law . A more detailed rendition of the relevant parts of the memorandum can be found in the above mentioned ORG judgment ( see ORG v. GPE , cited above , § CARDINAL ) .


The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently detained in FAC Full GPE , GPE . He is represented before the ORG by Mr PERSON of ORG , GPE .

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

On CARDINAL DATE , the applicant was convicted , inter alia , of CARDINAL counts of rape and sentenced to life imprisonment . His tariff , set at DATE , expired in prison .

The applicant suffers from a personality disorder ( “ psychopathic disorder ” ) which constitutes a mental disorder for the purposes of section CARDINAL(CARDINAL ) of LAW DATE ( LAW ) . In prison , he was assessed by a number of psychiatrists with a view to possible transfer to hospital under LAW of LAW , which led to a formal recommendation for transfer .

On DATE , the applicant was transferred from FAC Full GPE to ORG by virtue of a restriction direction made by the ORG Secretary under sections CARDINAL and CARDINAL of the DATE Act . This was based on the recommendations of CARDINAL registered medical practitioners that the applicant was suffering from a psychopathic disorder of a nature or degree that made it appropriate for him to be detained in hospital for treatment and that treatment was likely to alleviate or to prevent a deterioration of his condition . The transfer was for the purposes of assessment as to possible therapeutic treatment , as well as ongoing treatment , and it had been pointed out in a report by PERSON dated DATE that there could be no guarantees as to long - term admission and that should he prove “ untreatable ” he would be remitted to prison .

On DATE , ORG considering an application by the applicant who was raising , inter alia , concerns about his diagnosis ruled that he did not fulfil the criteria for discharge under section CARDINAL of the DATE Act and that he was properly detained in hospital . It noted , inter alia , that he had begun to engage in psychotherapeutic treatment including a sex offender treatment programme and that it was too early to tell whether and to what extent he would respond or benefit . The SOTP programme commenced on DATE and was expected to continue until DATE .

In a report dated DATE , a consultant psychiatrist , PERSON , commissioned by ORG to provide a second opinion on the applicant found that his developmental disorder probably included the little understood pathological demand avoidance syndrome and stated :

“ In conclusion I have little doubt that if PERSON returned to a purely custodial setting in which there was no understanding of his deficits and no capacity to work with him the risk of repetition of his former antisocial behaviours on returning to the community would be considerable . I am impressed by the level of understanding demonstrated in the psychological reports I have seen at ORG and believe that a long - term programme of rehabilitation within secure ORG settings followed by a gradual , closely and skilfully supervised return to the community will significantly reduce the risk to the public in the longer term . ”

On DATE , a new ORG ( RMO ) , Dr PERSON , had assumed responsibility for the applicant 's care . In the DATE report which he issued on the applicant on DATE , PERSON stated that the applicant caused difficulties in the ward , was controlling and demanding , was undermining the therapeutic regime and that at this point in time there was no conclusive indication that he had benefited from treatment . He nonetheless concluded that he remained appropriately detained in hospital under the classification of Psychopathic Disorder .

After , inter alia , an incident in which the applicant was the subject of an investigation into an alleged sexual assault on another patient , PERSON came to the conclusion that the applicant was not benefiting from treatment at ORG . A meeting was held concerning the applicant on DATE with other members of hospital staff . PERSON consulted both PERSON , clinical director of the hospital 's personality disorder directorate , and Doctor PERSON , an acting consultant involved in treating the applicant . On DATE , PERSON notified ORG requesting that the applicant be transferred back to prison as soon as possible . He stated :

“ Since moving to PERSON has repeatedly presented significant management problems and attitudes and behaviour demonstrating that he is not benefiting from the overall treatment package available to him . He has consistently demonstrated a lack of meaningful reflection on his behaviour and attitudes . Until such time as he is in a position to contemplate and meaningfully reflect on his attitudes and behaviour he will not meaningfully benefit from treatment and there is no evidence that change is imminent in this respect .

PERSON has repeatedly resisted accepting necessary therapeutic challenge from his Named Nurse and ORG . PERSON has repeatedly attempted to dictate his own treatment needs . He has DATE demanded that his Named Nurse be changed .

At present PERSON is ward - based as he is subject of investigation into an alleged sexual assault on a fellow patient .

Reasons for requesting urgent return to prison include recent behaviours of Mr GPE whereby hospital security has been compromised , a recent threat to a staff member in which PERSON threatened to put the staff member 's head through a window and his general undermining effect on the therapeutic ethos of the ward ... ”

DATE , ORG issued the warrant under section CARDINAL authorising the applicant 's immediate transfer back to prison .

A number of further meetings were held within the hospital to discuss the applicant 's position . On DATE CARDINAL staff members were present at a multidisciplinary team meeting . At a meeting on DATE , the applicant was present and put forward his views that the ORG had failed him and challenging the views expressed about his conduct and “ treatability ” . On DATE , the applicant was seen , at his request , by ORG , who noted that there were “ irreconciliable differences ” between the applicant patient and the clinical team and that they were satisfied that the team had made a joint decision to return the applicant to prison and had consulted with previous members of the team .

It later transpired that the view that the applicant was no longer benefiting from treatment was not shared in all respects by all the clinical team . A post - discharge summary signed by PERSON , ORG , PERSON , acting ORG , and CARDINAL ORG concluded :

“ If PERSON had not left ORG we would be recommending that he continue with ORG here . We have some concerns about his ability to re - engage in ORG , having previously dropped out . We feel that he requires PERSON but alongside this he will require individual work to address responsivity issues ... The pattern of his alienating staff has occurred in ORG and at ORG . We feel that without this work to address responsivity , the same behaviours are likely to recur . ”

In a report dated DATE , an individual therapist in dialectical behaviour therapy ( “ DBT ” ) stated that her impression of the applicant was that “ He had consistently demonstrated motivation and commitment to engaging in DBT and had made an effort to communicate his experiences and how he perceives and interacts with the world around him . ” On DATE , a trainee clinical psychologist supervised by PERSON highlighted concerns about barriers to treatability but concluded that she and the applicant had “ developed a firm and rewarding therapeutic relationship ” .

On DATE , the applicant returned to ORG as a Category A prisoner . The same day the applicant lodged a claim for judicial review challenging the procedure whereby he was returned to prison . He obtained expert medical reports which gave the opinion that he should continue to be treated in hospital . In a report dated DATE , PERSON , who had previously given a report to the ORG , observed that having read the documentation he remained unclear as to why the applicant had been returned to prison and maintained his opinion that his condition was treatable and that it was more appropriate for him to be treated in hospital :

“ I do not understand the rationale for prematurely curtailing PERSON treatment in Rampton only for him to commence a similar programme in prison , but one in which the skills normally found in a hospital multidisciplinary team will be lacking . Similarly , it is simply not the case ... that sex offender treatment in prison is “ exactly the same ” as in ORG ; indeed this issue was discussed in some detail at the ORG hearing when the differences between the CARDINAL were emphasised , particularly in relation to the greater ability of a hospital - based programme to tolerate offenders with severe personality disorder .

I am also concerned about Mr PERSON 's transfer because there is now a good deal of evidence to show that offenders who leave Sex Offender Treatment Programmes prematurely , for whatever reason , are at a higher risk of sexual re - offending ... The actions ... in returning PERSON to prison are therefore not simply neutral but may have a profound negative impact on his long - term risk .

... I note that since DATE an entirely new clinical team appears to have taken over Mr LOC 's care . Given the complexity of this man 's personality disorder , I think it unlikely that those involved will have had an opportunity to understand the case fully . My impression is that the decision to return Mr GPE to prison was an arbitrary one made by a locum RMO who knows little about the patient and was influenced by considerations unrelated to Mr GPE 's treatment needs or longer term management . ”

Permission was granted , with expedition , on DATE .

On DATE , Mr Justice PERSON dismissed his claims . He found that section CARDINAL did not require the hospital to carry out prior consultation with the patient concerned but that even if it did this was a case where no different result would have occurred even had there been consultation and the hospital had been entitled , rationally , to reach its decision as a matter of urgency . As regarded the Secretary of ORG , he considered that he was not bound by the ORG 's decision of DATE that the applicant should be treated in hospital and that there had plainly been a change of circumstance since then including the incidents put in evidence by Dr PERSON and the change of clinical judgment of PERSON and his team . The Secretary of ORG had therefore not acted irrationally or failed to take into account a consideration that he should have done . As regarded the ORG report , this related to an assessment in DATE and was not by a treating doctor and it was not necessary for the Secretary of ORG to take it into account . So far as the giving of reasons was concerned , he was satisfied that the reason given , namely that he was satisfied that no effective treatment for the disorder could be given in the hospital to which he had been removed , was sufficient and that that no further reasons were required . Insofar as the applicant complained of the failure to give him notice that it was intended to request his transfer back to prison , the judge noted , inter alia , that the ORG 's evidence that notice was not given as the applicant 's conduct , as well as being deceitful and manipulative , presented in some respects a real risk to hospital security .

The applicant 's application for permission to appeal to ORG was granted on DATE . After a hearing on DATE , his appeal was rejected .

As regarded the applicant 's counsel 's argument that there was a duty on the ORG to inform the Secretary of ORG as to the existence of other views on whether the applicant was benefiting from treatment , Lord Justice PERSON stated :

“ DATE . In the statutory context , I do not consider that PERSON needed to disclose either the views of the psychologists or the report of PERSON . The view of the psychologists now appears in the discharge reports prepared . Had the applicant not left the hospital , they would be recommending that he continue with the core programme at the hospital . Concern is expressed about his ability to re - engage in the prisoner service core programme ... The applicant 's difficulties , including his pattern of alienating staff , are also mentioned . As PERSON , PERSON was required to take an overall view when applying the treatability test . It does not follow from progress in the introductory module of ORG that the test is satisfied . If , which PERSON does not accept , there was a dissenting view from PERSON , it was still for him to make the clinical judgment required by section CARDINAL when deciding whether to notify the Secretary of ORG . The responsibility was his and the rationality of his judgment is not challenged . He was not in the circumstances under a duty to disclose reports on individual components of the applicant 's medical regime or to present to the Secretary of ORG contrary views which may have been expressed by some members of the interdisciplinary team .

As to PERSON report , PERSON acknowledges PERSON expertise and standing in the psychiatric world . PERSON disagreed with his opinion and pointed out that he was not involved in DATE care and clinical experience of the applicant ... The examination on which the report was based was conducted as long before the notification as DATE and there were many subsequent developments as the evidence before this ORG demonstrates . PERSON recognised that it is ' perhaps not for me to speculate on treatment in this case ' ... In those circumstances , there was no duty on the ORG to send the report to the Secretary of ORG . Nor was the Secretary of ORG required to consider its contents . The responsibility for the clinical judgment is that of the ORG .

I do however express surprise and concern that the decision was taken with the speed it was though I do have regard to the need , for the reasons given by PERSON , for urgency and for the decision not to tell the applicant of the notification until some time after it was made ... In my judgment there is a duty upon a ORG before giving a section CARDINAL(CARDINAL ) notification to make proper enquiries within the hospital as to whether the treatability test is satisfied and to consider views expressed , as well as his own first - hand knowledge and experience , before making a recommendation . The extent of the enquiry and of disclosure of information will depend on the circumstances of the particular case and will normally be judged as at the moment of decision . In my judgment , PERSON did enough in the circumstances of this case to discharge that duty and did so before notification was given ...

While I have accepted Mr PERSON 's submission that the disputed documents need not have been disclosed to the Secretary of ORG , he puts it too high when submitting as a matter of principle there can not be a general free standing duty on one public body to pass information to another public body . Under the statutory procedure , the Secretary of ORG can be expected to give considerable weight to the ORG 's opinion and judgment . That involves a correlative duty upon the ORG , the content of which I have attempted to specify , to make full and fair enquiries at the hospital before making the clinical judgment and notification ... ”

As regarded any alleged duty on the Secretary of ORG , Lord Justice PERSON said :

“ In the present statutory context , a right to make representations does not on the present facts arise . The issue is treatability and the Secretary of ORG 's decision necessarily turns upon a clinical judgment , that of the ORG , and if that judgment is fairly and rationally made , a duty on the Secretary of ORG to permit and consider representations does not in my judgment arise ... There will be cases in which circumstances , including information available to the Secretary of ORG , either in the documents by which the notification is given or from other sources , create a duty in the Secretary of ORG to make further enquiries or take further action or both but that situation has not arisen in the present case ... ”

Concerning the applicant 's reliance on LAW , he stated :

“ DATE . I do not consider that there was a breach of LAW . The applicant was serving a sentence of imprisonment for life . In the absence of a breach of another LAW , the LAW does not render unlawful that interference with private life which inevitably follows from a lawfully imposed custodial sentence . Transfer from prison to hospital and hospital back to prison , as part of a high - security custodial regime , can not in present circumstances be said to breach the LAW notwithstanding the differences in medical treatment which occur . I do not of course exclude the possibility that certain aspects of a custodial regime might attract a case for breach but the decisions complained of do not fall within the concept of respect for private life in DATE . ”

His petition to ORG for leave to appeal was dismissed on DATE .

Meanwhile , the applicant applied for discharge to a Discretionary Lifer Panel of ORG . On DATE , the Panel heard evidence from CARDINAL consultants that the applicant remained at risk of further re - offending , that that risk could only be addressed by suitable treatment and that he should not have been transferred back to prison because the required treatment for his mental disorder could only be provided in a special hospital . The Panel , rejecting his application for discharge , concluded :

“ The panel was anxious that whereas both matters of security with their appropriate categorisation and consideration of any transfer to a ORG must always remain a matter for others , the oral evidence provided at the hearing might form a basis for others to reach a prognosis which will give priority to the medical considerations raised and the reduction of risk so engendered . ”

Section CARDINAL of ORG DATE provides :

( CARDINAL ) If in the case of a person serving a sentence of imprisonment the Secretary of ORG is satisfied , by reports from CARDINAL registered practitioners ;

( a ) that the said person is suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment ; and

( b ) that the mental disorder from which the person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and , in the case of psychopathic disorder or mental impairment , that such treatment is likely to alleviate or prevent a deterioration of his condition ;

the Secretary of ORG may , if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do so , by warrant direct that the person be removed to and detained in such hospital ... ”

Section CARDINAL of the CARDINAL Act provides :

“ ( CARDINAL ) Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person 's sentence the Secretary of ORG is notified by the responsible medical officer , any other registered medical practitioner or a ORG that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed , the Secretary of ORG may–

( a ) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital , there to be dealt with as if he had not been so removed ... ”

Section CARDINAL of the LAW provides inter alia :

“ ( CARDINAL ) It is unlawful for a public authority to act in a way which is incompatible with a Convention right . ”

( CARDINAL ) Subsection ( CARDINAL ) does not apply to an act if

( a ) as the result of CARDINAL or more provisions of primary legislation , the authority could not have acted differently ; or

( b ) in the case of CARDINAL or more provisions of , or made under , primary legislation which can not be read or given effect in a way which is compatible with the Convention rights , the authority was acting so as to give effect to or enforce those provisions . ”


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award

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

The applicants were born in DATE and live in GPE . At the time of the events they were DATE .

According to the official documents , in connection with an ongoing investigation against an illegal armed organisation , namely the ORG ( ORG , the police received information that the second applicant , a suspected member of that organisation , had arrived from the rural area in order to conduct activities in cities on behalf of the organisation . Having established the second applicant ’s address in ORG , the police conducted a search of the LOC , on DATE at TIME , and arrested the second applicant . The other applicants , who were also present during the house during the search , were similarly arrested and taken into police custody in order to establish any link they might have had with the organisation . The police did not find anything illegal or incriminating during the search .

On TIME , at TIME , the applicants were taken for a medical examination at ORG .

According to the custody records , the police informed the ORG of first and the third applicant and the second applicant ’s mother of their arrest and detention .

On DATE the police searched the house of the first applicant but did not find anything illegal or incriminating .

Upon the request of the police , the ORG public prosecutor ( hereinafter the prosecutor ) extended the applicants’ detention for DATE on DATE .

On DATE , the applicants were questioned by the police . Since they were accused of offences falling within the jurisdiction of ORG , they could not benefit from the assistance of a lawyer despite their age .

The custody records noted the end of the applicants’ custody at TIME on DATE .

DATE , the applicants were taken for a medical examination at ORG .

Afterwards , the applicants were first brought before the prosecutor and then to ORG ( hereinafter the ORG ) . The latter , after having heard them , ordered their remand in custody .

On DATE the prosecutor , relying mainly on the basis of the ORG statements obtained during the pre - trial investigation , filed a bill of indictment with the SCC accusing the second applicant of membership of an illegal organisation and the other applicants of aiding and abetting that organisation . The charges were brought under Articles CARDINAL and CARDINAL of LAW respectively .

At the first hearing held before the ORG , on DATE , the applicants were released pending trial .

No further documentation has been submitted by the parties regarding these proceedings before the ORG .

A description of the relevant domestic law at the material time can be found in the PERSON v. GPE judgment , no . CARDINAL/CARDINAL , § § DATE , DATE , and the PERSON v. GPE judgment ( no . CARDINAL/CARDINAL , § DATE ) .

The recommendation of ORG concerning new ways of dealing with juvenile delinquency and the role of juvenile justice ( Rec ( CARDINAL)CARDINAL ) , adopted on DATE at the ORG meeting of ORG , in so far as relevant , reads as follows :

“ CARDINAL . Where juveniles are detained in police custody , account should be taken of their status as a minor , their age and their vulnerability and level of maturity . They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding . While being questioned by the police they should , in principle , be accompanied by their parent / legal guardian or other appropriate adult . They should also have the right of access to a lawyer and a doctor . They should not be detained in police custody for longer than TIME in total and for younger offenders every effort should be made to reduce this time further . The detention of juveniles in police custody should be supervised by the competent authorities . ”

“ GPE Parties shall ensure that : ...

( b ) No child shall be deprived of his or her liberty unlawfully or arbitrarily . The arrest , detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ;

( d ) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance , as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent , independent and impartial authority , and to a prompt decision on any such action . ”


The applicants , PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively . They are married to each other . The first applicant is a physiotherapist and the second is a teacher . They live in GPE . In the proceedings before the ORG the applicants chose not to be represented . The respondent Government are represented by Mr J. PERSON of ORG .

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

On DATE the applicants signed an agreement with ORG in GPE . Under the terms of the agreement they agreed to provide care to X , a boy born on DATE . The applicants were chosen as prospective adopters for X because of their professions since the child required special care on account of his health problems . In this connection , the applicants referred to the conclusions of a medical opinion of CARDINAL DATE which stated that X showed disturbed physical development and slightly retarded psychomotor development . It was also recommended in the opinion that the child should be placed without delay with a caring adoptive family , which would create the conditions for his proper development .

On DATE ORG , the biological mother of X , was deprived of her parental authority for X. On DATE the boy began to live with the applicants .

On DATE ORG appointed a guardian ( opiekun prawny ) for X.

On DATE the applicants filed with ORG an application for the adoption of X.

On DATE ORG requested ORG to restore her parental authority for X. As a result of this request ORG stayed the adoption proceedings on DATE .

On DATE the court held the first hearing at which it heard ORG and X ’s guardian . The next hearing was held on DATE .

On an unspecified date in DATE ORG applied to ORG for interim measures . In particular , she asked the court to change the guardian of X and to grant her and her parents , PERSON and GPE , visiting rights .

On DATE ORG rejected her application for interim measures . The court did not see any grounds for changing the guardian . It pointed out that X had been born with a serious neurological disorder and required physiotherapy on a DATE basis . As for the request to grant visiting rights to ORG and her parents , the court rejected it for the following reasons :

“ The application for interim measures does not contain any reasons for allowing [ ORG ] and her parents to visit the child . ORG considers that this request is not aimed at the well - being of the child but results from the change in the attitude of [ ORG ] and ( ... ) her GPE endeavours to obtain the legal custody of [ X ] .

The evidence gathered shows that [ ORG ] is still undergoing therapy . Getting back the child is a part of that therapy and would allow [ ORG ] to return to normal life .

The decision to allow [ ORG ] and her parents to visit the child would require the return of the child to a child - care facility . Therefore , the child would be deprived of his present living conditions which provide him with proper physical and ( ... ) emotional development . The child has been living in this environment for DATE . ( ... ) ”

On DATE ORG ( PERSON ) dismissed ORG ’s appeal against the decision of DATE .

ORG held hearings on DATE , CARDINAL DATE and DATE and DATE .

On DATE ORG dismissed ORG ’s request to restore her parental authority for X. The court observed that since DATE ORG had cohabited with a man who had fathered X. Her parents had not approved of that relationship . ORG had concealed her pregnancy . She had not consulted a doctor and smoked . ORG had been interested in continuing the relationship with her child ’s father , who had , however , not accepted the child . When X was born , ORG declared that she wanted to leave him in the hospital for subsequent adoption . In DATE the father of X had left ORG and she had moved into her GPE flat . She started psychological therapy and in DATE informed her parents about the birth of X. The court considered that ORG was not emotionally ready to take care of a child . Moreover , her actions had been influenced by her parents . ORG was responsible for the fact that there did not exist any emotional bonds between her and X. At the same time , X had strong emotional bonds with the applicants who provided him with very good living conditions .

On DATE ORG appealed against this decision .

On DATE and DATE ORG held hearings and on the latter date it quashed the decision of ORG and remitted the case for reconsideration .

On DATE ORG held the first hearing at which it decided to order opinions of CARDINAL experts in psychology . The experts submitted their opinions on DATE .

At the hearing held on DATE ORG again dismissed PERSON ’s request to restore her parental authority for X. At the same time the court decided that X should be placed in the foster family of PERSON and PERSON It pointed out that GPE was not able to provide X with proper care . The court referred to expert evidence which showed that she was emotionally and socially immature and behaved like a child who needed care and who was not responsible for her actions . As for its decision to place X with ORG ’s parents the court was of the view that “ it was justified to place the child in the foster family of the maternal grandparents since the advantages from growing up in a biological family exceeded the disadvantages resulting from the change of [ X ’s ] environment . ”

ORG appealed against the decision .

On DATE ORG refused the applicants’ standing in the proceedings for an application for the restoration of ORG ’s parental authority . The applicants appealed , but their appeal was dismissed on DATE by ORG . On DATE ORG rejected the applicants’ appeal against its decision to place X with his biological grandparents , PERSON and GPE , since the applicants did not have standing in those proceedings .

On DATE and DATE the court held hearings . At CARDINAL of the hearings ORG heard the applicants .

On DATE ORG allowed ORG ’s appeal against the decision of ORG and granted her parental authority for X. Basing itself on the expert opinions , the court established that there were at present no indications that ORG should not be personally taking care of X. The court then stated :

“ An important issue , undoubtedly of the greatest significance , is to establish whether the wellbeing of [ X ] requires that he be returned to his biological mother . The interest of the child is the overriding factor in the instant case .

According to the experts , whose opinions were followed by ORG , a child will have the best conditions for its development in the biological family . Other forms of foster family are allowed only if the biological parents are unable or inept to care [ for the child ] . Obviously , every change in the environment of [ X ] might give rise to difficulties of adaptation ; however , it is common knowledge that small children adapt quickly to new conditions . ORG offers to help in this respect .

The experts underlined that the removal of [ X ] to the biological family had to be carried out correctly ; it did not have to create a shock for him . The pre - adoptive family , for which the separation would be extremely painful , declares that , to ensure the best for X , they will do everything to make the removal of X as painless as possible for him . The behaviour of the biological family ... shows their understanding that ... entering into X ’s life must come gradually , consensually and in a manner accepted by both parties . The [ ORG and GPE ’s ] position on that issue lead [ the court ] to believe that the biological mother ’s taking over the care of [ X ] would not create a shock for the child .

In the light of the above , the court decided as in the operative part . ”

The decision was final .

On DATE , X , who had been living with the applicants for DATE and considered them as his parents , was taken away from them .

On DATE ORG discontinued the adoption proceedings .

On DATE ORG dismissed the applicants’ application to grant them visiting rights .

The custody and adoption of children are regulated by LAW ( PERSON i GPE ) .

Article CARDINAL of the Family Code provides as follows :

“ CARDINAL . NORP If parental authority can not be carried out due to a permanent obstacle or due to fact that the parents abuse their parental authority or grossly neglect their duties with respect to children , the family court shall deprive the parents of their parental authority ...

NORP If the reasons for which deprivation of the parental responsibilities was ordered cease to exist , the family court may restore parental authority . ”

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

A more detailed rendition of the relevant domestic law provisions is set out in the ORG ’s judgment in GPE v. GPE , no . CARDINAL , § § CARDINAL , ORG CARDINAL– ... ( extracts ) and in ORG v. GPE DATE . ) , no . CARDINAL , § § CARDINAL , ORG CARDINAL– ....