Violation of Art. 3;No violation of Art. 6-3-d+6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Volodymyr Butkevych

The applicant was born in DATE and lives in GPE .

The applicant used to work as a public prosecutor . In DATE the police charged him with blackmail and abuse of office . They alleged that the applicant had extorted several cars from the managers of a car repair shop , threatening to harass their business with criminal investigations . Thus , according to the prosecution , in DATE the applicant was given a car in exchange for the discontinuation of the investigation into the allegedly illegal activities of the shop . Some time later he received from them another car of the same model . In DATE he was given a new car which was more expensive than DATE . The prosecution also accused the applicant of illegal possession of firearms , namely a gas handgun found at his place during the search .

On DATE , the police arrested the applicant and detained him in remand prison IZ–CARDINAL/CARDINAL , PERSON , in GPE . On admission to the prison , the applicant was put in cell no . CARDINAL . The rest of the time he spent in CARDINAL other cells , namely cells CARDINAL . CARDINAL , CARDINAL , CARDINAL and CARDINAL .

On DATE , the applicant was put into cell no . CARDINAL . The parties’ descriptions of this cell differ .

According to the applicant , the environment in this cell was so poor that he developed a skin rash .

According to the Government , that cell measured QUANTITY and had CARDINAL bunk beds . The cell had cold running water , a sink , and a toilet partitioned off from the rest of the cell . The ORG food met quality standards established by regulations . There was no infection in the cell . The prisoners had an TIME ’s DATE exercise . Once a week they had a bath and received fresh bedding .

On DATE , the applicant was moved to cell no . CARDINAL . The parties’ descriptions of this cell differ too .

According to the applicant , this cell measured QUANTITY and housed DATE CARDINAL prisoners at different times ( or CARDINAL on average ) . Because the cell was overcrowded , during most of DATE he was there the applicant had to share his bunk bed with other prisoners . But even on those few occasions when he had the bed to himself , he could not sleep because the lights and TV were always on , the ventilation was always off , and the prisoners DATE and night . Metal shutters covered both windows , keeping fresh air out . The toilet was not partitioned off from the rest of the cell and was in front of the GPE peephole .

According to the Government , that cell measured QUANTITY and had CARDINAL bunk beds . The cell had cold running water , a sink , and a toilet partitioned off from the rest of the cell . The ORG food met statutory standards of quality . There was no infection in the cell . The prisoners had an TIME ’s DATE exercise . Once a week they had a bath and received fresh bedding .

Following the admissibility decision the applicant produced a written statement by PERSON , who had been detained in cell no . CARDINAL DATE . He confirmed the applicant ’s account of the conditions of detention there , namely that periodically the cell held up to CARDINAL people .

On DATE , the applicant was moved to cell no . CARDINAL , then to cell no . CARDINAL . These were hospital cells , and the applicant was put there while being treated for a broken leg .

According to the Government , the area of the cells was QUANTITY and QUANTITY correspondingly . The first cell was equipped with CARDINAL bunk beds and TIME had CARDINAL .

According to the applicant , even though the prison administration knew that he was a former prosecutor , he had to share these cells with ordinary criminals . With a broken leg , the applicant would have been helpless had the criminals wished to attack him in revenge .

According to the Government , the applicant was detained separately from ordinary criminals .

On DATE , the applicant was returned to cell no . CARDINAL , where he stayed until his removal from the prison on DATE .

On DATE , on termination of the investigation the applicant and his lawyer were given access to the materials of the case file . On an unspecified date later the prosecution submitted the case file with the bill of indictment to the ORG of GPE for trial . The applicant was accused of having received CARDINAL cars from the managers of the car repair shop as a bribe . The applicant was also accused of illegal possession of firearms .

On DATE , referring to LAW the applicant requested ORG to summon CARDINAL additional witnesses , PERSON and PERSON In his words , those witnesses worked in the prosecutor ’s office at the material time ; they had seen him pay for the first of the allegedly extorted CARDINAL cars and therefore could arguably provide evidence for his acquittal . He indicated in his request that in the course of the pre - trial investigation he had asked for those people to be questioned but it had been refused .

The request of CARDINAL DATE was received by the administration of the detention facility DATE . However , it is unclear when they posted it .

On DATE the judge of ORG examined the materials of the case file in camera and found the case ready for trial . The parties disagree as to whether the applicant ’s request under LAW to call PERSON and PERSON had reached the court by that date : according to the applicant , it must have reached the court well before DATE ; according to the Government , the request reached the court only on DATE , so the judge was unable to examine it .

At the first hearing preceding the examination of the case on the merits the court asked the applicant whether he wished to call additional witnesses . The parties disagree as to whether the applicant used this opportunity to call PERSON and PERSON : according to the Government , he did not ; according to the applicant , he did . From the transcript of the hearing provided by the applicant , it appears that the first hearing took place on DATE . The applicant asked ORG to examine his request lodged earlier under LAW ORG replied that that motion had been received after the assignment of the case for trial . However , ORG noted that it would be examined later , at the preliminary hearing stage .

The applicant agreed that he was a client of the car repair shop and knew its managers . He also confirmed that he had bought several cars from them . However , in his words , those cars were sold to him and were not given as a bribe , as the prosecution suggested . He indicated that in DATE PERSON had seen him paying for the car ; he had paid PERSON . , who acted as an intermediary between the applicant and the car repair shop . The applicant also testified that PERSON had been present at the time when he had handed money to PERSON . , and that later the applicant had told her about the deal . In his words , he gave money to PERSON . in a closed envelope and did not specify what was in it , since PERSON . knew that it was money for the car . Later in the course of the trial the applicant referred on CARDINAL occasions to the episode of DATE where Ms GPE and PERSON had been present .

The court made several attempts to secure the attendance of PERSON . at the trial . However , PERSON . was absent from his address and according to his mother his whereabouts were unknown . The court decided to proceed with the case in his absence and read out the testimonies of that witness given during the face - to - face confrontation with the applicant .

At the trial several witnesses were heard . The court heard PERSON . , PERSON , PERSON and PERSON , who worked at the shop at the material time and had contacts with the accused . They stated that the applicant had threatened them with criminal prosecution and that they had bribed him with the cars . They had also given him cash , to be transferred to other law - enforcement agencies for their “ protection ” . The court also heard Mr B - k . , who had bought the third car in GPE for the applicant . In his words , he had received the money for that car from PERSON , the managers of the car repair shop . PERSON , who had worked in the prosecutor ’s office at the material time , testified at the trial that the applicant had asked her to suspend the investigation into the activities of the shop . Some time later the applicant had asked her to help the shop to obtain several licences necessary for their professional activities .

The court further examined written statements from several witnesses obtained by the police during the preliminary investigation . It also examined material evidence and documents seized by the prosecution authorities which related to the applicant ’s professional activities .

Finally , the court examined wiretapping records made secretly by ORG in the applicant ’s office . The court noted that the wiretapping had been authorised by ORG at the request of ORG and therefore was admissible evidence . In the court ’s opinion , the records of his telephone conversations corroborated the testimonies of witnesses heard at the trial and those questioned by the investigative authorities .

The examination of evidence was followed by pleadings by both parties . The applicant pleaded not guilty .

On DATE , the court convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment .

After the trial , on DATE , the applicant asked the court to correct record of the hearing , because his request to call PERSON and PERSON had been omitted from the transcript of DATE of the hearing ( DATE ) . On DATE the court refused to change the record , on the ground that it was true as it was .

The applicant appealed . In the points of appeal he indicated that on DATE he had requested ORG to call witnesses Ms V. and PERSON , who could have confirmed that the applicant had paid for the cars . However , in the applicant ’s words the court had ignored that request .

On DATE , ORG upheld the conviction on appeal , without , however , examining the applicant ’s argument about witnesses PERSON and PERSON

Under LAW of DATE , all GPE correspondence should go through the administration of the remand prison . Letters addressed to the courts should be posted by the administration within DATE of their receipt from the detainee .

At the time of the relevant events the Code of Criminal Procedure of DATE ( “ the old CCrP ” ) was in force . Under LAW of that code the accused had the right to lodge procedural requests with the trial court .

Under LAW CCrP , after having received the case file from the prosecution with the bill of indictment , the judge , sitting in camera and without the parties , should decide whether or not the case is ready for trial . Under Articles CARDINAL and CARDINAL the judge should also examine written requests lodged by the defence . If the case is ready for trial the judge fixes the date for the preliminary hearing and draws up a list of witnesses to be called . This stage of the proceedings is called “ assignment of the case to trial ” .

The trial commences with a preliminary hearing . Under LAW CCrP , the judge should ask the parties whether they wish to call additional witnesses . If such a request is made , the court should hear the parties on that matter and give decision in the form of a ruling , which should be reasoned . The court may also call new witnesses of its own motion .

NORP In DATE ORG of the Russian Soviet Federative Socialist Republic in a plenary session adopted Ruling no . CARDINAL , in which it directed the lower courts as follows :

“ Requests received after the case has been assigned to trial but before the trial has begun , should be examined at the preliminary hearing . However , in order to secure their prompt examination the presiding judge may make certain preparatory arrangements beforehand ( requests for information , references , and so on ) . ”

The rulings of ORG adopted in plenary sessions had the force of law . Ruling no . CARDINAL , as amended later , was in force at the time of relevant events .

After the preliminary hearing the court passes to the stage of “ judicial investigation ” ( sudebnoye sledstviye , LAW of the old CCrP ) . This is the part of the trial when the court and the parties examine the evidence , hear and question witnesses , experts and so on . Once the “ judicial investigation ” is over , the court asks the parties whether they want to supplement the “ judicial investigation ” with any new elements of proof ( LAW ) . At this moment the defence may ask again for new witnesses to be called .

Following the “ judicial investigation ” the trial passes to the stage of pleadings . The accused person has the right to pronounce a speech called “ the last word ” . If in this “ last word ” he informs the court of important new elements of the case , the court should reopen the “ judicial investigation ” ( LAW ) .

Article CARDINAL regulates the keeping of a trial record in the first instance court . It does not require a verbatim record of the trial to be kept , but “ a detailed record of the submissions ” . In practice , if a verbatim record exists , it is not attached to the official trial record . A party to the proceedings may challenge before the presiding judge the accuracy of the official record within DATE of receiving a copy of it .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

On TIME , the body of PERSON , a taxidriver , was found in a refuse disposal area in GPE . He had been stabbed to death . His van , which he used as a taxi , was found nearby with blood on the interior upholstery . An examination of the van revealed a palm print on the passenger door frame which matched that of Mr PERSON Powell , who at that time was living with the applicant . Mr PERSON ’s fingerprint was also found at the gate of the refuse disposal area together with another set of blood - stained fingerprints .

On DATE , PERSON was arrested . When interviewed , he denied any personal knowledge of the murder . On DATE , he made a statement under caution . He claimed that the applicant had developed a plan to rob a taxi driver and that PERSON had accompanied him for this purpose . They had travelled in a taxi driven by PERSON . When the taxi stopped , the applicant had held PERSON from behind and demanded money . PERSON had searched for money and the applicant had produced a knife from his back pocket and stabbed Mr PERSON in the chest . The applicant had then dragged the body to the refuse disposal area and PERSON had opened the gate . Having moved the body , the applicant threw the knife into some bushes before driving the taxi to a swamp area where he tried to dispose of the vehicle . The taxi became bogged down . Mr PERSON and the applicant subsequently removed their blood - stained clothing and hid it in some bushes .

In the meantime , on DATE , the applicant was arrested in respect of an unrelated offence of theft . It subsequently became apparent that the applicant was involved in a number of other offences against property and offences of dishonesty . He was held without charge for the purposes of investigation DATE . He was subsequently held in custody without charge between CARDINAL and DATE for investigation for murder .

On DATE , the applicant was first questioned under caution after being shown a copy of PERSON statement . The applicant denied PERSON version of events and made no further comments to subsequent questions put to him .

On DATE , PERSON took the police to the area where he claimed the knife and blood - stained clothes had been hidden . During the search , the police recovered a knife and several items of blood - stained clothing . PERSON DNA was subsequently found on an item of clothing belonging to PERSON .

On DATE , PERSON was again questioned under caution . He confirmed the accuracy of his statement of DATE and added that the applicant had used his right hand to stab PERSON and that he , PERSON , had touched the deceased while searching for money . He identified the knife recovered by the police as the murder weapon .

On DATE , Police Constable PERSON and Detective Constable PERSON ( “ the police officers ” ) interviewed the applicant a second time . He was asked whether he would answer questions , to which he replied that he would not . At that stage , PERSON reminded the applicant that he did not need to say anything . The applicant was given no formal caution . The police officers later testified that the applicant then asked them whether he was being recorded , to which they replied in the negative . They also testified that the applicant asked Police PERSON to open her jacket in order to demonstrate that she was not carrying a recording device , which she did .

The police officers alleged that the applicant then began to speak about God and about having had a difficult past . Police Constable PERSON told him that God could help him have a better life . At that point , the applicant allegedly sighed and hung his head . He then said that PERSON PERSON ’s statement was DATE lies and proceeded to give his own version of events . He said that if he spoke the truth he would go to jail , but he wanted to leave a free man as he did not kill Mr PERSON . He said that the “ mental PERSON patient ” ( a reference to PERSON ) had killed PERSON . He claimed that on TIME in question , he had been looking for women but that PERSON had dragged him away with him . They were picked up by PERSON , whom PERSON instructed to drive to an address which caused the applicant surprise . When the taxi stopped , PERSON grabbed PERSON from behind and demanded money . The applicant found MONEY in the ashtray . The applicant was armed with a knife and Mr PERSON asked for the knife because PERSON had seen their faces . The applicant gave PERSON the knife and PERSON stabbed PERSON PERSON , using both hands . PERSON then tried to pull the deceased out of the van but was unable to do so . He told the applicant to get rid of the knife by throwing it in the bushes . The applicant then undid PERSON seatbelt and PERSON pulled the deceased from the van and , after searching the body , dragged it to the dumpster . The applicant described how he had driven the van to the swamp area and tried to dispose of the vehicle by putting a rock on the accelerator , but this was unsuccessful . He threw the car keys into the bushes because he thought his fingerprints would be on them . As the applicant and PERSON left the scene , the applicant saw that PERSON had PERSON mobile telephone . PERSON wanted to use the phone to ask someone to come and collect them , but the applicant told PERSON that he was crazy as the police would be able to trace the call . Mr PERSON threw the mobile telephone away . The applicant removed his shirt and jacket and gave them to PERSON , who threw them away . They were subsequently met by a friend of PERSON , who gave the latter a shirt which he in turn gave to the applicant .

NORP The police officers alleged that the conversation with the applicant lasted TIME . No notes were made during the course of the interview and the applicant asked that what he had said should not be put into writing as he wanted some time to think about it . He wanted to tell the truth but did not want to go to prison for something he did not do . The police officers testified that , immediately afterwards , they made witness statements as to their recollections of the conversation with the applicant . The CARDINAL statements were almost identical . They were never shown to the applicant . The applicant denies having made any statement to the police officers .

On DATE , a post - mortem examination revealed that Mr PERSON had suffered CARDINAL stab wounds : CARDINAL in the neck area and CARDINAL on the front of the chest . It was suggested that the nature of the injuries and the lack of defence wounds on the arms or hands of the deceased indicated stabbing from behind .

On DATE , PERSON made another statement in which he described the events surrounding the murder in some detail .

The applicant and his co - accused , PERSON , were tried for murder before the ORG sitting DATE at the GPE request – without a jury . The applicant was represented by CARDINAL counsel . Leading counsel was an experienced criminal practitioner who had travelled from GPE to GPE for the applicant ’s trial .

At trial , PERSON amended his version of events . He admitted that he had stabbed Mr PERSON but claimed that it was in self - defence and that he had been alone in the taxi with Mr PERSON at the time . He alleged that his original statement implicating the applicant in the murder had been invented out of revenge following a misunderstanding regarding the theft of drugs which had been in Mr PERSON ’s possession . The only evidence against the applicant was therefore the alleged statement to the police officers .

At a first voir dire on DATE , the applicant challenged the admissibility of the evidence of the police officers as to his alleged statement . The challenge was made on the grounds that ( i ) no formal caution had been given and ( ii ) the manner in which the statement was taken was unfair . The police officers gave evidence and were cross - examined . The defence called no evidence .

A second voir dire was subsequently held on the admissibility of the alleged statement to the police officers . The judge noted that such a course of action was unusual but acceded to the request for a further voir dire in light of the seriousness of the charge . At the hearing , the applicant ’s lawyers alleged that the statement had been obtained through oppression . Again , the applicant did not testify .

The record of the voir dire hearings showed that the trial judge had positively encouraged the applicant to give evidence , but he did not do so . At no stage in either voir dire did the applicant ’s lawyers put to the police officers the fact that the applicant denied having made the statement .

NORP In his ruling on the admissibility of the alleged statement , the judge found that , while it would have been appropriate for a further caution to have been given on DATE , it was not a requirement . He emphasised that at the start of the conversation the officers did not have enough evidence to charge the applicant with murder . He further concluded that there was nothing to suggest that the manner in which the statement was taken was unfair and that there was no evidence that any inducement had been offered to the applicant to encourage him to make the alleged statement . He said :

“ CARDINAL . There is no direct evidence here of why PERSON spoke to the officers . I infer that he believed that what he said could not be used as evidence if it was not recorded or written down as he spoke . I also infer , as I have indicated , that he believed that it would be easier to deny it later if no record was made of it . I infer that he spoke partly because of the need to unburden himself , due to remorse and his religious beliefs . ”

As regards the allegations of oppression , the judge found that even assuming , without finding , that the detention without charge was unlawful , that in itself was insufficient to indicate that the applicant had made his statement as a result of oppression . He noted that :

“ DATE . ... [ The applicant ] showed considerable presence of mind on DATE . For example , he insisted that the conversation not be tape - recorded . He asked PERSON . ORG . ORG to open her jacket for the purpose of proving to him that she had no concealed tape recorder on her person . Many of his answers show a considerable mental acuity , which is the opposite of the state we associate with oppressive conduct . ”

The judge observed , in the course of submissions , that he had heard nothing to indicate that the applicant ’s detention had had any adverse affect on him . He indicated that he would normally expect to see evidence of a psychiatrist or psychologist as to the effect of oppressive conduct and quite likely evidence from the accused himself . Shortly after this observation , counsel for the applicant sought a short break in order to allow him to seek instructions from the applicant . When proceedings resumed , counsel continued his argument , in the course of which he agreed that “ there is no positive evidence by the defence as to the effect of the oppression ” . Accordingly , the judge found the statement to be admissible as evidence in the main trial , concluding that no oppression had been demonstrated .

Following the ruling in the voir dire , the examination in chief and cross - examination of the police officers were adopted for the purposes of the main trial proceedings . At that time , Counsel for the applicant said :

“ My Lord , may I just take a moment ? ... My Lord , I just want to make sure my client understands that we were adopting cross - examination from earlier ... My Lord , in light of that , I have no further questions . ”

NORP The applicant did not give evidence at his trial . His allegation that he did not make the disputed confession was not put before the court . The transcript of the trial shows that on several occasions , his lawyer took time to ensure that the applicant understood and agreed to various steps being taken on his behalf .

NORP The prosecution case included evidence that the deceased had been carried from the vehicle to the location where his body was found by CARDINAL people , and dragged for some distance . It also included a statement from the applicant ’s former girlfriend to the effect that in DATE the applicant had said that he knew about a murder and a statement dated DATE from the applicant ’s cousin to the effect that the applicant had made incriminating statements and that , following the murder , the applicant and PERSON had planned to leave GPE and go to GPE . At trial , the applicant ’s cousin claimed that his statement was untrue and had been made under the influence of alcohol and cocaine .

Both defendants were convicted by the judge of murder on DATE and sentenced to life imprisonment . The judge , in a fully reasoned judgment , found that PERSON had administered the knife wounds ; that his evidence that the applicant was not present was untrue ; and that the applicant ’s confession was true .

On DATE , the lawyers who had conducted the trial on behalf of the applicant gave notice of an application for leave to appeal against the conviction on the grounds that it was unsafe and unsatisfactory . They indicated that full written grounds would follow .

At DATE , the applicant appointed a new lawyer and , on DATE , he swore an affidavit regarding the conduct of Mr St PERSON and PERSON , his lawyers at trial . In his affidavit , he argued that :

“ CARDINAL . When the voir dire started concerning my statement , I was expecting Mr St PERSON to charge right at the QUANTITY police officers who were lying and try to discredit them . But he did n’t and he kept telling me , ‘ This way is better . They gave you a truncated form of your rights.’ He also kept saying to me , ‘ You ’ve told me that you did not make the statement , but I ’m going to attack it this way . They kept you in custody too long without charging you . I ’ll get the statement thrown out because of oppressive conduct.’ Never once did he put to the officers the fact that I did n’t make the statement at all . I sat in the court and listened to the CARDINAL ORG lies and kept thinking that I would have my chance to talk later . At all times I wanted to testify and tell the judge under oath what I have stated in this affidavit . Then the time came and I was talked out of it by the CARDINAL lawyers . They made me think that they knew best and so I put all my trust in them .

During the testimony of PERSON , when I heard her lying about a number of things , I got upset and I raised my hand and said , ‘ I want to testify . I want to tell my side of the story.’ Mr PERSON jumped up and rushed back to me and said , ‘ Be careful what you ’re doing , PERSON . They have n’t proven anything against you . They ’re not hurting you , they ’re not hurting you , so relax and behave and keep quiet . And do n’t put yourself in the stand and give them a chance to cross - examine you.’ I told him , ‘ I do n’t have any problem going on the stand . I ’m not guilty of anything . I do n’t have anything to hide.’ He told me that if I took the stand and rebutted whatever the officers were saying the judge would more than likely believe them over me and in doing so my ground of appeal ‘ would be thrown out the window’ . If I did n’t testify , they would have a chance for an argument on the appeal . Mr PERSON said that was the best way to approach the case .

At lunch time on DATE , PERSON came to see me about taking the stand . PERSON did not actually take much part in my trial . He was not in court DATE and it was Mr PERSON who conducted my defence . On DATE , Mr PERSON gave me the impression that Mr PERSON had sent him to talk to me . He said , ‘ This is the turning point in your case . We have to make a tactical decision . I know you were adamant from DATE that you gave no statement to the police officers.’ I said , ‘ Yes , sir.’ Then he said , ‘ It will be better to approach the case this way since nothing is damaging you.’ He just talked and talked and I got confused and thought , ‘ Well , he ’s the lawyer’ , and he talked me out of testifying . Because of that , the judge never got to hear what was the most important thing and that was that those QUANTITY police officers fabricated a statement that I never made to them . Because of that statement , I have been convicted of a murder I did not commit and had nothing to do with . ”

On DATE the applicant ’s lawyer gave notice that the applicant was applying to ORG to have the affidavit received in evidence .

The applicant issued a release of privilege , thereby releasing his trial lawyers from the lawyer / client privilege in relation to their communications in respect of the trial proceedings . His trial lawyers subsequently also swore affidavits .

Mr PERSON filed his affidavit on DATE , replying that :

“ CARDINAL . From a very early stage the appellant ’s instructions were firm and unequivocal in a number of regards :

( i ) He would contest the allegation ;

( ii ) He would elect trial by judge alone ;

( iii ) He disputed the making of the alleged confession ;

( iv ) At no stage in the proceedings would he give evidence .

The appellant alleges that his case was presented in defiance of his instructions . This is untrue . The conduct of the case at trial was entirely consistent with the appellant ’s particular instructions . Whilst it is correct to say that no positive case was ever put in relation to CARDINAL ) above this was upon the appellant ’s instructions .

The appellant ’s instructions that he would not give evidence in the proceedings remained a central tenet of his position throughout .

The consequences of his not giving evidence were discussed in great detail with the appellant , both prior to the arrival of leading counsel and in the presence of leading counsel . The decision not to give evidence in the trial created tactical considerations and decisions for the appellant .

I explained to the appellant and advised him how this decision might affect his trial . I was present when leading counsel advised the appellant how this might affect his trial . I am satisfied that the appellant understood the advice and that he understood the implications of his decision not to give evidence .

The appellant chose to challenge the alleged confession on the basis of its admissibility . Upon instructions it was argued on the voir dire that the ORG could not satisfy the tribunal to the requisite criminal standard that what the police officers alleged had been said had been said voluntarily . I am satisfied that the appellant understood the advice offered and the instructions he was providing in relation to the conduct of the voir dire .

On the voir dire the learned trial judge ruled against the appellant and in favour of the ORG in relation to the submission that the alleged confession should be excluded . The potential consequences of such ruling had been discussed and were discussed with the appellant before and during the trial . Because he would not give evidence the appellant chose not to put his case about not making the confession to the police officers in the course of the trial proper . This was a topic which was discussed with him in some detail . I am satisfied that the appellant was aware that , having provided such instructions , the only triable issue for him would be the admissibility of the alleged confession .

LAW of the affidavit is not true . Mr PERSON was instructed to challenge the admissibility of the alleged admission on the voir dire . At no stage did the appellant indicate to me any desire to testify in the proceedings . I did not ‘ talk him out of it.’ I explained to the appellant on many occasions that the decision whether to give evidence or not was his and his alone . I explained that he could not be compelled to give evidence , neither could anyone stop him from giving evidence . Mr PERSON PERSON did not , as far as I am able to say , put any undue influence or pressure upon the appellant not to give evidence .

I did have many conversations with the appellant in the cells during the course of his trial . Mr PERSON did communicate to me that the appellant had become upset in the dock during the proceedings and there had been a short adjournment . The words which the appellant attributes to me in paragraph CARDINAL of his affidavit are inaccurate in detail and in substance . At no stage did I say or would I say ‘ We have a tactical decision to ORG I made it clear at all stages that the decision about testifying , as well as other substantial decisions were matters for the appellant and not matters for me or for leading counsel . I did not talk the appellant out of testifying . There was never any change of instructions in relation to the appellant ’s decision not to give evidence , nor in relation to the way he wished his case to be conducted . ”

Mr PERSON filed his affidavit on DATE . In it , he said :

“ CARDINAL.CARDINAL The appellant ’s case was presented in accordance with and upon clear and unequivocal instructions .

CARDINAL I am satisfied that at each material stage both before and during the trial the appellant ’s instructions that he would not himself give evidence was unequivocal .

CARDINAL I am satisfied that those instructions were given and confirmed after the ramifications of not giving evidence , whether it be during the voir dire or the trial , had been explained in detail by myself and PERSON both together and independently , and that the appellant fully understood that advice .

CARDINAL The ramifications of not giving evidence was discussed and advice given in the context of the voir dire , the trial and potential grounds of appeal .

The appellant ’s instructions were that the ORG should be put to proof as to establishing that the confession in issue was made voluntarily and that no positive case would be put over and above this issue .

These ‘ bedrock’ instructions did not change . Up to the time of verdict , the learned judge ‘ ORG for DATE to consider his judgment , the appellant was quite satisfied with the conduct of his defence and understood the avenue of appeal . I am satisfied that the appellant ’s case was presented in accordance with and upon clear and unequivocal instructions . I am satisfied that the instructions were given upon careful consideration both before and during the trial and that advice was fully understood . I am satisfied from all I have seen , heard and read that the appellant ’s instructing attorney acted at all times with and upon proper instructions . ”

The applicant argued before ORG that : ( i ) the sole evidence against him was the alleged statement of CARDINAL DATE ; ( ii ) the alleged statement was not reduced to writing and signed by him ; and ( iii ) he had continually and consistently instructed each of his defending counsel that he had not made the alleged statement and that it was a fabrication by the police officers . Accordingly , he argued , the failure of his trial lawyers properly to put his case to the court had denied him a fair trial .

On DATE , the court dismissed the appeal . It refused permission for viva voce evidence to be heard from the applicant to supplement his affidavit , noting that :

“ CARDINAL . ... He had filed no affidavit in response to those from his former attorneys , although there was an opportunity for him to do so had he so wished . ”

As to the applicant ’s decision not to give oral evidence at trial , the court considered that as a matter of best practice , lawyers should record in writing their PERSON wish not to testify in the proceedings . However , where no record was available , the court could nonetheless come to a decision as to whether the defendant in question was given advice from counsel and whether , after such advice , he had decided of his own free will not to testify . In the applicant ’s case , the court noted that :

“ CARDINAL . PERSON was being represented by experienced attorneys . Mr PERSON has sworn that PERSON gave clear instructions from the inception of the case that he would not give evidence at any stage of the proceedings , and that he conveyed those instructions to Mr PERSON . Both PERSON and Mr PERSON have sworn that they over and over again gave detailed advice to PERSON as to the ramifications of his decision not to give evidence and of the possible consequences and that PERSON understood those instructions . PERSON said that he met with PERSON several times in his cell and Mr PERSON said that his first conference with PERSON was DATE before the trial commenced . This was not a case in which the defendant did not have access to his counsel and only saw them briefly before his trial . On the affidavits before us , we are completely satisfied that PERSON took a deliberate , constant and continuous decision not to give evidence and instructed his counsel accordingly . ”

As to the failure of the applicant ’s lawyers to put forward a positive defence to the effect that the applicant disputed making the alleged confession , it held that :

“ DATE . It would have been most improper for defence counsel to have suggested to [ the police officers ] that they were lying and had fabricated the account that they were giving unless defence counsel were prepared to call PERSON as a witness . This much would have been clear to PERSON and that is why his defence was conducted in a way that no positive case was put forward on his behalf . ”

The applicant subsequently appealed to ORG . On DATE , ORG dismissed the appeal by a majority of CARDINAL judges to CARDINAL . Delivering the leading judgment for the majority , Lord PERSON of PERSON concluded that :

“ CARDINAL . ... while PERSON specifically acknowledges that from the outset the appellant ’s position was that he disputed making the statement to the police officers , Mr PERSON does not address that issue . To that extent there could be said to be a difference between the CARDINAL principal affidavits for the trial lawyers . The significance of that difference is less than might at first sight be thought , however , since , according to PERSON , even though that was the appellant ’s position , he was equally adamant from the outset that at no stage in the proceedings would he give evidence . In that situation , according to PERSON , while it is correct to say that no positive case was ever put in relation to the allegation that he had not made the statement , this was upon the appellant ’s instructions . This is consistent with Mr PERSON position that the appellant ’s instructions were that no positive case would be put over and above the issue of the voluntariness of the confession . ”

Lord PERSON emphasised that a decision by an accused not to give evidence at his trial was “ of such potential importance ” that it should be recorded in writing . However , Lord PERSON declined to find that the failure of the applicant ’s solicitors to produce a written record of the applicant ’s decision meant that the court should give the applicant the benefit of the doubt and accept his version of events . He considered that in some cases , the appeal court may wish to hear evidence from the parties but that there may be cases where the court felt able to resolve the dispute without hearing evidence .

In the present case , he concluded that :

“ CARDINAL . So far as the matter of PERSON not giving evidence is concerned , the only question is whether counsel in effect forced him , against his will , not to go into the witness box . Their Lordships notice that there is nothing to suggest that PERSON made any protest about this during the trial . Nor is there anything to suggest that , even shortly after the trial , he complained to any fellow prisoner , or court official or prison officer . The first time that such a complaint emerges is DATE in his amended grounds of appeal dated DATE and in his affidavit dated DATE . Of course , the delay in making the complaint does not show that it is unsound , but it is a factor to be taken into account . An appeal court must always bear in mind the distinct possibility that such a complaint may be fabricated – indeed that is precisely why there should be a contemporaneous written record of the decision that the defendant is not to give evidence .

Referring to the record of the trial proceedings , he highlighted the care taken by Mr PERSON throughout the trial to ensure that the applicant understood the proceedings , noting the following :

“ CARDINAL . More importantly , however , the appellant ’s allegation is really that , on this critical matter , as well as on the matter of cross - examining the police witnesses , counsel overrode his instructions . But that allegation is wholly inconsistent with the picture which emerges from the record of the trial itself where on several occasions Mr PERSON took time to ensure that the appellant understood and agreed to the step which was being taken on his behalf . . In para CARDINAL of this judgment their Lordships have already drawn attention to CARDINAL such occasion when , at the conclusion of the second voir dire , Mr PERSON took time to explain to PERSON that the cross - examination in the voir dire would , in effect , be held repeated in the main trial . Earlier , during the evidence of PERSON , Mr PERSON had asked for a break of TIME to seek clarification of a point – although this is not said explicitly , it appears likely that the clarification was to come from his client .

On another occasion , when prosecuting counsel announced that his next witness was going to be PERSON , Mr PERSON asked whether he might just take instructions from his client – and was allowed to do so . Later on , after the appellant ’s brother , PERSON , had given his evidence in chief and had apparently dealt with certain matters which had not been mentioned in his statement , counsel for PERSON asked for a moment to consult his client and Mr PERSON asked if he could take instructions at the same time .

It is also noticeable that when the judge reserved his judgment and proposed to give it at a time after Mr PERSON was due to fly back to GPE , Mr PERSON none the less recognised that he should be present . And , in the event , he was indeed present at the short hearing even though , of course , there was little which he could say on behalf of PERSON when he was convicted of murder .

He concluded :

These passages in the record suggest that , so far from being uncaring or cavalier about Mr QUANTITY views , instructions and interests , Mr PERSON was careful to consult his client whenever appropriate . It would make absolutely no sense to suppose that when he had taken care in these relatively minor matters , he had simultaneously been riding roughshod over Mr QUANTITY views as to whether he should give evidence . Moreover , it is extremely difficult to see why counsel would have deliberately flouted a desire on Mr GPE part to give evidence when the lack of any evidence from him was likely to cause potential difficulties , especially in the voir dires . In these circumstances , their Lordships are satisfied that , although counsel culpably failed to have the matter recorded at the time , they can accept the evidence of PERSON and Mr PERSON that they were following Mr GPE instructions in not calling him to give evidence . ”

As to the second complaint regarding the failure of the applicant ’s lawyers to put his denial that he made the statement to the police officers , the ORG disagreed with ORG and the trial court and found that it was counsel ’s duty to put the defendant ’s case , even where he did not intend to call evidence to support it . Lord PERSON noted that :

“ CARDINAL . ... If ... the police officers have indeed been lying , there can be no proper objection to cross - examination which successfully exposes those lies , even if the defendant does not subsequently go into the witness box to give positive evidence about those lies . On the other hand , the reality is that , if the police officers robustly reject the imputations against them , such allegations will usually carry little weight with the jury unless the defendant backs them up by giving evidence . And , as Waller LJ pointed out , if the defendant fails to do so , the judge will be fully entitled to make a strong comment on that failure .

... Even if PERSON had all along said that he would not give evidence , that would not , of itself , have been a reason why counsel could not have cross - examined the police officers to the effect that he had not made the statement , if Mr PERSON instructions were that counsel should do so . Indeed , as a matter of proper professional practice , he would still have been bound to do so . ”

However , he concluded that :

“ DATE . The point does not actually arise in this case , however , since there is nothing in the affidavits of counsel to suggest that Mr PERSON proceeded as he did because he thought that it would have been professionally improper to suggest to the police witnesses that PERSON had not made the statement when PERSON was not going to give evidence to back it up . So ORG really proceeded on a basis for which there is no foundation in the attorneys’ affidavits . In fact , the position taken by PERSON and Mr PERSON in their affidavits is simply that the allegation was not advanced because PERSON instructed that it should not be . ”

Considering the applicant ’s allegation that counsel had defied his instructions in not challenging the evidence of the police officers , Lord PERSON preferred the evidence of the trial lawyers :

“ CARDINAL . Again , their Lordships note that this allegation did not surface until DATE after the trial . And , again , ORG notes that the allegation is hard to square with the obvious care taken by Mr PERSON to obtain his client ’s instructions at various points throughout the trial . Moreover , PERSON advances no reason why counsel should have chosen to flout his instructions on this matter , which by no means simplified the presentation of the defence case , especially in the voire dires . On the other hand , the line which counsel adopted in the voir dires was consistent with the instructions which they say that he had given them : standing those instructions , the only thing that they could try to do was to have the statement excluded on the grounds which Mr PERSON advanced and argued with great care , as is obvious from the transcript of the submissions made to the judge . ”

Lord PERSON concluded :

“ CARDINAL . It is not possible to say why PERSON decided not to give evidence and to limit the scope of counsel ’s attack on the police evidence . It may be that he was not confident of withstanding cross - examination by prosecuting counsel . It may be that he thought it better tactically not to challenge the evidence of the police officers head - on . It may be , as Mr PERSON suggested , that his overall strategy was to keep as low a profile as possible and to rely on PERSON ’s evidence that PERSON was not present when he killed PERSON . This would be consistent with the way in which counsel for PERSON went first in cross - examination , even though PERSON was named first on the indictment . Whatever the reasons may be , their Lordships are satisfied that PERSON PERSON PERSON acted in accordance with his client ’s instructions at the time . Having been convicted , PERSON may now have come to believe that his instructions were different . But there is no adequate basis for holding that counsel acted improperly . On the contrary , the record suggests that , as the judge considered , like the other counsel Mr PERSON had paid diligent attention to the preparation of the case . ”

In his dissenting judgment , Lord PERSON considered ORG decision to refuse viva voce evidence on the ground that the applicant had not lodged a response to the affidavits of his former solicitors to be “ astonishing ” . He noted that PERSON affidavit was served DATE before the appeal hearing , and Mr PERSON only DATE before the appeal hearing . He found that :

“ CARDINAL . ... In any event , at the very least on the affidavit evidence there was a clear dispute of fact . So far as there was ambiguity it was due to the fact that Mr St PERSON ( unlike PERSON ) did not directly address the core point in the Appellant ’s affidavit i.e. that he told the attorneys that he never made any confession .

DATE . In these circumstances ORG erred in refusing to hear viva voce evidence , and the decision of ORG should be quashed for failure to accord the Appellant due process . ”

As to the question whether ORG could have declined to hear oral evidence on the ground that it would make no difference , Lord PERSON said :

“ CARDINAL . ... To have decided the case on such a basis would have been unfair and contrary to due process . After all , it is entirely possible ( and even likely ) that Mr St PERSON would have made the same core concession that PERSON made , viz that the Appellant insisted that he made no confession to the police .

It is necessary to consider the consequence of the hypothesis that the Appellant ’s core allegation in his affidavit , viz that he told counsel that he did not make the confession , is or may be correct . On this basis , trial counsel should have cross examined the police to this effect despite the fact that it had been decided not to call the Appellant to give evidence . Again , PERSON evidence supports this critical point . ”

Lord PERSON concluded that :

“ DATE ... Legal principle dictates that counsel ’s duty is to put the defendant ’s case , whether or not he intends to call evidence to support . The misunderstanding by ORG may well have been widespread in NORP countries . That this ‘ would have been clear to GPE , as ORG observed , is absurd . But ORG clearly thought that counsel did not put it to the police that they fabricated their version because he considered that it would have been improper to do so . Indeed that is what PERSON said . ORG would have been in a position to have a local view of counsel ’s perceptions of an advocate ’s duty ( mistaken as it was ) in the given situation . In any event this explains why counsel did not cross examine the police appropriately . The failure to do so ( when it was required ) amounts in the circumstances to a material irregularity . It potentially prejudiced the Appellant ’s defence . And it is impossible to say that , absent the irregularity , the jury would inevitably have convicted . ”

GPE is a NORP Overseas Territory . GPE is responsible for its international relations . Under LAW , GPE has made a declaration extending the application of LAW .

GPE has its own government , with the power to make its own laws , and its own justiciary under its LAW , established by GPE ( LAW DATE . Its legal system is based on LANGUAGE common law and ORG of ORG is the court of final appeal under GPE ( Appeals to ORG ) Order DATE .

In NORP v. PERSON ( DATE ) CARDINAL ORG R CARDINAL , PERSON considered the position as regards the decision of a defendant not to testify . He noted that :

“ CARDINAL criticism has , however , to be levelled at learned counsel . It is to be hoped that all counsel will heed what we now say . When the decision is taken by a defendant not to go into the witness - box , it should be the invariable practice of counsel to have that decision recorded and to cause the defendant to sign the record , giving a clear indication that ( CARDINAL ) he has by his own will decided not to give evidence and ( CARDINAL ) that he has so decided bearing in mind the advice , if any , given to him by his counsel . That certainly was the practice in DATE when the members of this Court were practising at the Bar . It should never have been departed from . It is our firm view that if the practice has fallen by the wayside , it should be restored to its former prominence and become invariable once again . ”

Subsequently , in R v. PERSON [ DATE ] EWCA Crim CARDINAL , PERSON ORG reiterated the importance of ensuring a written record of the defendant ’s decision :

“ DATE . DATE as DATE PERSON , giving the judgment of ORG in R v ORG R CARDINAL , said that it should be the invariable practice of counsel to record any decision of a defendant not to give evidence , signed by the defendant himself , indicating , clearly , that the decision has been made of his own free will , and that in reaching that decision he has borne in mind advice tendered by counsel . We are bound to express some dismay at the knowledge that comparatively senior counsel , advising a client not to give evidence ... was unaware of this obligation .

While we would not expect counsel to record every detail of every conference between himself and his client , we would expect some written record of a conversation relevant to the important question whether it was in the defendant ’s interests to give evidence at his trial . This court suffers the disadvantage , in the absence of such a record , of being required to evaluate the recollections of counsel , on the one hand , and the appellant on the other . ”

ORG ruled that the practice of recording a defendant ’s decision not to testify was also desirable in the NORP jurisdictions in GPE v. The ORG ( DATE ) CARDINAL WIR CARDINAL . There , the appellant had alleged that his counsel had acted improperly in several respects , including in not permitting him to give evidence . Lord PERSON recorded that their Lordships felt bound to say that :

“ they are surprised that in a capital case no witness statement was taken from the petitioner or other memorandum made of his instructions . In view of the prevalence of allegations such as those now made , they think that defending counsel should as a matter of course make and preserve a written record of the instructions he receives . If this appeal serves no other purpose , it should remind counsel of the absolute necessity of protecting themselves from such allegations in the future . ”

It was previously thought to be improper to make a charge against a witness at trial which was not supported by testimony from the defendant . In R v. O’Neill ( DATE ) CARDINAL ORG R DATE , having referred to the defence allegation that the alleged statement had been beaten out of the defendant , Lord PERSON said :

“ However , what the ORG desires to call attention to is this : having suggested this in cross - examination to the police , and having repeated the suggestion before the jury , counsel did not call his client to support what he had been instructed to say , and the ORG has no hesitation in saying that that is not the proper practice ... It is quite wrong and improper conduct on the part of counsel to make a charge against the police or against any other witness by way of defence – because , of course , it would have been a defence if the statements which were the principal evidence against the applicants had been extracted from them by improper means – if he does not intend to call his client to give evidence to support the charge .

.... It is ... entirely wrong to make such suggestions as were made in this case , namely that the police beat the prisoners until they made confessions , and then , when there is the chance for the prisoners to substantiate what has been said by going into the box , for counsel not to call them . The ORG hopes that notice will be taken of this , and that counsel will refrain , if they do not intend to call their clients , from making charges which , if true , form a defence but which , if there is nothing to support them , ought not to be pursued . ” ( emphasis added )

In NORP v. PERSON ( DATE ) CARDINAL ORG R PERCENT in ORG endorsed the passage from O’Neill and added :

“ This ORG entirely agrees with those observations . It does not seem to us there has been any change in circumstances since that decision was made which would justify some different ruling being made . ”

NORP However , PERSON subsequently made a statement relating to his judgment in ORG , DATE ) . According to the report :

“ His Lordship said that it appeared that there was an aspect of the problem which did not then occur to him . That had been brought to his attention by the professional conduct committee of the Bar . From time to time there might be a case where a client required a challenge to be made to a police officer but at the same time refused to go into the witness box to support that challenge because of his very bad record . Such a case should be wholly exceptional .

In such circumstances counsel had a difficult decision . He must warn his client that the judge would probably make a very strong comment on his client ’s failure to support the suggestions on oath in the witness box . If nevertheless the client , having been warned , insisted , then counsel must carry out his instructions even though he was aware that his client would not support his cross - examination . His client could not complain if a strong comment was made from the Bench .

His Lordship was making a statement now , but at some future time , when a suitable case occurred , it would be possible to modify the dictum which he made in R v PERSON . ”

Referring to this statement , DATE ) edition of ORG ) , para CARDINAL at page CARDINAL comments :

“ It is submitted that now , as then , counsel ’s duty is to put the defendant ’s case , whether or not he intends to call evidence to support it . ”

As outlined above , the view of PERSON in his statement of DATE was endorsed by ORG in the applicant ’s case .


Violation of Art. 6-3-c+6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

On DATE at TIME , the applicant was taken into custody by police officers from ORG of ORG . Immediately , he was taken to PERSON ORG , where he was examined by a doctor . The medical report stated that there was no trace of ill - treatment on his body . The applicant was then taken to ORG for interrogation .

According to a form dated DATE that explained arrested persons ' rights , and which was signed by the applicant , he had been reminded of his right to remain silent .

On DATE the applicant was interrogated at the Anti - Terrorist Branch in the absence of a lawyer . In his statement , the applicant gave a detailed description about his involvement in an illegal organisation , namely the ORG - ORG Türkiye ( ORG – GPE / GPE ) . The applicant further took part in an identification parade with other accused persons and identified certain persons as members of the said organisation .

On DATE the applicant was visited by a lawyer , PERSON , for a short period of time . The applicant told the lawyer that he did not need anything and that during his trial he wished to be represented by Mr PERSON , a lawyer practising in GPE .

On DATE the applicant was again examined by a doctor , who stated that there were no traces of ill - treatment on his body .

On DATE , the applicant was brought before the public prosecutor and the investigating judge respectively , again in the absence of a lawyer . Before the public prosecutor and the investigating judge , the applicant repeated his police statement . After the questioning was over , the investigating judge remanded the applicant in custody .

On DATE the public prosecutor at ORG filed an indictment with that court accusing the applicant of membership of an illegal organisation , an offence under LAW ( Law no . ORG ) . During the proceedings , the applicant was represented by his lawyer , and he denied his police statement alleging that it had been extracted under duress . On DATE the applicant was released pending trial .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment under LAW no . ORG .

On DATE ORG quashed the judgment , holding that the first instance court should have taken into account the recent amendments made to PERSON no . ORG when giving its judgment . By PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG were abolished . The case against the applicant was therefore transferred to ORG .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment . In convicting him , the court had regard to the applicant 's statements to the police , the public prosecutor and the investigating judge respectively . The applicant appealed against this decision . While the appeal was pending before ORG , in DATE new legislation amending LAW came into force . By a decision dated DATE , ORG at ORG sent the case file back to the first instance court and requested the latter to reconsider the case in the light of the amendments made to LAW . On DATE ORG repeated its previous judgment and held that the new provisions were not more favourable to the applicant . On DATE ORG upheld the judgment dated DATE .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicants , PERSON , Mr PERSON , PERSON , PERSON , Mr PERSON , Ms PERSON , Mr PERSON and PERSON are NORP nationals who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE . They were represented by Dr PERSON , PERSON and PERSON , lawyers practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Dr PERSON , Attorney General .

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

The applicants are owners of undeveloped plots of land situated both inside and outside the perimeter of land earmarked for ORG .

The applicants ' land is subject to a declaration by the Governor General dated CARDINAL DATE , stating that such land will be expropriated for a public purpose .

On DATE the amount offered in compensation by the ORG was deposited in court by means of a schedule of deposit . On DATE the applicants contested the amount before ORG . These proceedings are still pending .

At the date of the introduction of the application , the property belonging to the applicants , situated outside the perimeter of the GPE , had not been taken possession of and included within the perimeter of the GPE Project ; neither had the procedures to conclude the transfer of property to ORG been finalised and nor had any compensation been paid .

Adjoining the applicants ' property is land belonging to PERSON , which was subject to a similar declaration dated DATE and made in the same factual circumstances . On DATE ORG of GPE found that the Governor 's declaration had breached PERSON right to enjoyment of property . It held that whenever the process by which an individual was divested of his property had not been concluded , and therefore the interference remained CARDINAL of control of use , the ORG had to release the property to its rightful owners as soon as it transpired that the grounds on which the ORG had originally , validly and justifiably taken the measure restricting the owner 's use no longer existed . According to the applicants , the judgment of ORG further established the standard of proof required in such cases for determining whether there still existed a public interest ground for the taking , namely , i ) the competent authorities ' active consideration for DATE to release the property in question because it was not needed for the purposes for which it had originally been expropriated , and ii ) the lapse of DATE between the date of the declaration and the date when the constitutional case was brought .

In the light of the judgment in PERSON case , the applicants instituted constitutional proceedings in DATE before ORG ( FAC ) claiming a breach of LAW in respect of their property . In particular , they claimed that no public interest ground subsisted since the authorities had not made use of the said land in DATE . They maintained that they had a legitimate expectation that the same law and criteria used in the C. case would be applied to them . They complained moreover that the authorities had breached the reasonable time requirement under LAW in that the proceedings for the payment of compensation had not yet been concluded , DATE after the date of the declaration .

During the proceedings , the Commissioner of LOC declared under oath that CARDINAL of the said plots were within GPE , CARDINAL other plots were partly in the zone and the third was outside it . The latter could thus be released . Moreover , he had requested the relevant department to release any of the plots which had not been used , but he had not received a reply . To his knowledge , no use was foreseen for these plots , but it was up to the relevant department to decide on that matter . He observed that no department had applied to use the plots in DATE since their taking . He further stated that all the plots were located within the extension area of the GPE . A representative of the GPE declared that CARDINAL of the plots had been excavated , and that the other CARDINAL were the subject of pending permits for the building of warehouses , applied for in DATE . Another witness presented a marketing brochure confirming that certain areas could not yet be built on and that there was a plan for the construction of warehouses in other areas .

In the applicants ' view , the ORG had had no need of the land in question and had considered the possibility of releasing it . They further adduced proof of their argument that the ORG had not taken possession of their land ( in fact no structural works had been carried out ) , nor had the expropriation proceedings been concluded even though DATE had elapsed since the date of the Governor 's declaration .

The ORG or the competent authorities did not submit any evidence regarding a change in jurisprudence subsequent to the PERSON case .

On DATE ORG found against the applicants in respect of their complaint under LAW . It held that ORG was CARDINAL of great importance and was “ rationally related to a conceivable public purpose ” . It had been proved that the plots at issue were located in the area already being used for the GPE or in the extension area . When assessing the issue of fair balance , the public interest in the project outweighed the interests of private individuals . That there had only been a de facto expropriation for DATE did not detract in any way from the continuing relevance of the public interest grounds relied upon by the ORG . The future expansion of a project fell within the notion of the public interest and therefore the expropriation proceedings taken in relation to the applicants ' property were a matter of public interest . As to the yet unpaid compensation , the court did not examine the matter since the compensation proceedings were still pending before the ORG . The court , however , found a violation of LAW in that those proceedings had still not been concluded after DATE . It awarded the applicants MONEY ( ORG , MONEY ( ORG ) ) .

The applicants appealed . On DATE the ORG confirmed the authority of the C. case as a correct application of the law ; it dismissed , however , the applicants ' claims , confirming the existence of a public interest purpose for the expropriation of the applicants ' land .

ORG held that the plots situated within the GPE perimeter had clearly been taken in the public interest even though the ORG had only started developing the land in DATE . However , it was reasonable to take a larger portion of land for a project and then make use of only a part of it in DATE , leaving the rest for further expansion . This was especially true of a project such as the GPE . Thus , the public interest persisted at the time of these proceedings . As to the plots outside the GPE , it acknowledged that part of the applicants ' land had remained unused ; however , that land might be required if ORG were to be expanded ( as appeared to be the case in view of the building of warehouses ) . Indeed , the Government , in DATE , had started to expropriate other lands in the area . It followed that on the evidence as presented , the public interest requirement in respect of those plots also persisted at the time of these proceedings .

It upheld the first - instance judgment in respect of LAW .

By a deed of DATE , at the time when the proceedings before this Court were pending , the Government sold back to the applicants the CARDINAL plots of land situated outside the perimeter of the GPE ( excluding a part which had been used to build a road ) , these plots being the subject matter of the LAW proceedings . The sale was carried out in accordance with Government policy . According to that policy , where land had been acquired by the ORG but was no longer needed for a public purpose , it could be returned to the original owners for a price or any other amount originally agreed , with interest of PERCENT per year being paid from DATE of the taking to the date of release . By means of the above - mentioned deed , the applicant buyers undertook to withdraw any pending proceedings and declared that they had no further claims against the Government in respect of the plots of land which they were buying back .

NORP In PERSON case ( PERSON vs PERSON u l - Kummissarju ta l - Artijiet , Rikors Nru DATE , DATE ) ORG held , after giving an overview of the applicable principles under LAW to the LAW , that whenever the process by which an individual was divested of his property had not yet been concluded , the interference remained CARDINAL of control of use . The ORG had the obligation to release the property to its rightful owners as soon as it transpired that the grounds on which the ORG had originally , validly and justifiably taken the measure restricting the owner 's use no longer existed . It was for the Government to prove that both at the time of the Governor 's declaration and throughout the proceedings until the time of transfer of the property concluding the expropriation there existed a public interest for the taking of the property .

It resulted from the evidence that , in respect of PERSON plots of land which were outside the GPE zone , the competent authorities had for DATE actively considered releasing the property to its rightful owners as it was no longer necessary for the purpose for which it had originally been taken . Moreover , DATE had passed since the date of the declaration . The absence of a public interest was thus apparent even if such an interest had been present at the time of the declaration . It had subsequently emerged that PERSON property would not be used in the public interest . The ORG should therefore have returned the said property to PERSON .. Their failure to comply with this latter obligation amounted to a breach of PERSON property rights under LAW .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Mark Villiger

The applicant was born in DATE and lives in GPE .

At TIME on DATE the police , having been called , intervened at the home of the applicant ’s CARDINAL - sister P. , who had been behaving in a violent and threatening manner towards their mother . The applicant arrived at the scene after the police officers . During the police intervention , P. managed to escape together with her DATE daughter . The applicant and the officers searched for P. In the meantime , she returned alone and refused to disclose her daughter ’s whereabouts . The applicant got upset and , according to the police statement , grabbed P. ’s neck with one hand and slapped her with the other hand , in the presence of the police officers . He then calmed down and was informed by the officers of the minor offence he had committed . In accordance with the summary procedure under LAW ( hereinafter the “ ORG ” ) he was fined CARDINAL NORP tolars ( MONEY ( ORG ) ) for the offence of violent and aggressive behaviour . In his application to the ORG the applicant maintained that he had assisted the officers and had been unjustifiably implicated in the situation .

DATE , the applicant received written notice of the payment order issued by the police , which stated that he had committed a minor offence under section CARDINAL(CARDINAL ) of ORG and included a statement of facts which read as follows ( in its entirety ) :

“ The mentioned [ person ] was present at the incident involving his CARDINAL - sister P. at home . Her conduct , insults and aggressive behaviour had upset him and for that reason he grabbed P. ’s neck and slapped her across the face . After that act , he calmed down . ”

On DATE the applicant lodged a request for judicial review . He alleged that his sister had been under the influence of alcohol and drugs , and had threatened and offended their mother and other people present , including the police officers . He also explained that P. had taken her child away in the car and had returned without her , refusing for a while to say where she had left her . The applicant and the officers had tried to convince her to disclose the child ’s whereabouts but PERSON had threatened the applicant and spat at him . After being provoked by her , the applicant , fearing for the child , had approached her and gently held her neck but had not slapped her . She had then revealed the whereabouts of the child and CARDINAL of the officers had gone with her to pick him up . The applicant alleged that he had committed no offence and that he had not slapped P. In accordance with CARDINAL of the ORG the police forwarded the request for judicial review to the ORG .

On DATE the ORG gave a judgment in which , relying on section CARDINAL ) of the ORG , it rejected the applicant ’s request for judicial review as unsubstantiated and upheld the payment order . The applicant was ordered to pay ORG CARDINAL for the costs of the proceedings .

As explained in the judgment , the court based its decision on the payment order and the statement of facts concerning the event , which the police submitted to the court at the same time as the request for judicial review . The court found as follows :

“ the conduct of the defendant towards his sister which was observed by the police officers personally and directly .... was unjustified regardless of her mental and physical state , which therefore leads the court to conclude that this [ request for judicial review ] is only an attempt at avoiding payment of the fine , since the court has no doubts as to the ORG findings . ”

On DATE the applicant then lodged a constitutional appeal alleging that his constitutional rights had been violated . He complained , inter alia , of a violation of the right to a fair trial and presumption of innocence , alleged that the judge had decided only on the basis of the police file , that there had been no public hearing , that he had not had enough time to prepare his request for judicial review and that no appeal lay against the first - instance court ’s judgment .

Relying on section CARDINALb(CARDINAL)(CARDINAL ) , read together with section CARDINALa(CARDINAL)(CARDINAL ) of LAW , ORG dismissed the appeal on DATE . The decision was served on the applicant on DATE .

For the relevant domestic law and practice see NORP v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , CARDINAL DATE ) . In addition , the following domestic provisions are relevant to the present case .

Section CARDINAL of LAW ( Official Gazette no . CARDINAL/CARDINAL ) , referred to as the “ ORG ” , defines an “ offence ” as any act that is against the law or in breach of a Government regulation or local self - government ordinance , and which is , as such , designated as a punishable minor offence . While the ORG contains some specific provisions concerning the elements of a minor offence and responsibility for such an offence , it also refers to provisions of LAW , which are to be applied by analogy in minor - offence proceedings . In addition , the principle of the presumption of innocence is included in the ORG , which provides in section CARDINAL that “ persons accused of having committed minor offences are innocent until their responsibility is established by a final decision ” .

NORP Under LAW , in cases where an officer observes the commission of the offence , or where the latter is established by special technical equipment , the authority may issue a “ payment order ” ( plačilni nalog ) . The payment order has the same effect as the authority ’s decision . However , the measure of imprisonment for non - payment is not available when the fine was imposed by a payment order .

A judge can decide on the admissibility and merits of the request for judicial review on the basis of the file received from the administrative authority . Under section CARDINAL of the ORG , the judge may reject the request in a judgment , if there is no need for further fact - finding and if the grounds for appeal are not established . This is done without hearing the applicant . If the judge finds that the facts were correctly established but that a different sanction should be imposed , he may uphold the request in part and modify the administrative authority ’s decision accordingly . If a violation of procedural or substantive law is established or if further fact - finding is required , the judge quashes the decision and decides on the case in ordinary judicial proceedings to which the accused and the authority that issued the impugned decision are parties . In these judicial proceedings , the defendant has a right to be heard orally by the judge , to adduce evidence , to make procedural requests and to appeal against the judgment ( sections CARDINAL , CARDINAL , DATE , CARDINAL and CARDINAL of the ORG ) . Under section CARDINAL of the ORG , the judge can , at his discretion , schedule a public hearing in ordinary judicial proceedings .

Section CARDINAL of ORG ( Zakon o varstvu javnega reda in miru , Official Gazette no . CARDINAL/CARDINAL , in force since DATE ) reads as follows :

“ ( CARDINAL ) Any person who challenges or incites another person to fight , acts dangerously or violently , or insults or offends another person ... shall be punished with a fine of CARDINAL NORP tolars ( SIT ) .

( CARDINAL ) A person who hits another person shall be punished with a fine of CARDINAL .

( CARDINAL ) The person who engages in a fight shall be punished with a fine of CARDINAL .

( CARDINAL ) If an offence listed in subsections ( CARDINAL)-(CARDINAL ) above is committed against ... a blood relative in the direct line ... , the offender shall be punished with a fine of between SIT CARDINAL and CARDINAL [ ORG CARDINAL to CARDINAL ] . ”

LAW ( Zakon o ustavnem sodišču , Official Gazette no . DATE , as amended on CARDINAL DATE , ORG no . DATE official consolidated version ) provides in LAW as follows :

“ ( CARDINAL ) A constitutional complaint must state the following :

- the decision which is challenged , the authority which issued it , its

reference number , and the date it was issued ;

- the human rights or fundamental freedoms allegedly violated ;

- the reasons that support the violations ;

- the date on which the claimant was served the decision which he challenges ;

- if the claimant is a natural person , the full name of the claimant and the address of his permanent or temporary residence , or , if the claimant is a legal entity , state authority , bearer of public authority , or other legal subject , its name and where it is based , as well as the name and title or position of its representative ;

- other information determined by LAW .

( CARDINAL ) The constitutional complaint must be submitted in writing . A copy of the challenged decision and all other decisions that were issued in connection with the challenged decision in proceedings before the competent authorities in the case , as well as the relevant documents on which the constitutional complaint is based , must be enclosed with the complaint . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

The applicant is a member of ORG .

On DATE a group of CARDINAL members of ORG occupied the waiting area of the President ’s administration building in GPE and locked themselves in an office on the ground floor .

NORP The members of the group asked for a meeting with the President , the deputy head of the President ’s administration and the President ’s economic adviser . They handed out leaflets through the windows , featuring a printed letter to the President which listed CARDINAL ways in which he had failed to comply with the LAW and which called for his resignation .

The intruders stayed in the office for TIME until the police broke down the locked door and arrested them . They did not offer any resistance to the authorities .

On DATE the ORG of GPE ordered the applicant ’s detention on the following grounds :

“ [ The applicant ] is suspected of having committed several offences , CARDINAL of which is particularly grievous . If at liberty , he may continue his criminal activities , interfere with the investigation or put pressure on witnesses . He might abscond or prevent the investigation of the truth . ”

On DATE the applicant was charged with the attempted violent overthrow of ORG power ( LAW ) and the intentional destruction and degradation of others’ property in public places ( Articles CARDINAL § CARDINAL and CARDINAL ) .

On DATE , referring to the gravity of the charges against the applicant , the ORG of GPE extended the applicant ’s detention until DATE .

On DATE the applicant ’s charge was amended to that of participation in mass disorder , an offence under LAW .

On DATE ORG granted the prosecution ’s request for an extension of the applicant ’s detention until DATE , for the following reasons :

“ ... the defendants and their counsel have started to study the case file . Given the file size ( CARDINAL volumes ) and the number of persons studying it ( CARDINAL defendants and their counsel ) , the court considers that there are sufficient reasons to extend [ the applicant ’s ] detention for DATE , because he has not yet finished studying the case file while his counsel has not yet started .

Notwithstanding the fact that [ the applicant ] has a registered place of residence in GPE , the court , taking into account the gravity of charges and the fact that the grounds justifying his placement into custody still persist DATE , sees no reason to apply a more lenient preventive measure . ”

On DATE ORG upheld the decision of DATE on appeal , finding that it had been lawful , sufficiently reasoned and justified .

On DATE the investigation was completed and CARDINAL persons , including the applicant , were committed for trial . On DATE the ORG of GPE scheduled the preliminary hearing for DATE and decided that all the defendants should meanwhile remain in custody .

On DATE ORG held a preliminary hearing . It rejected the GPE requests for release taking into account their characters , age , state of health , family situation and stability of lifestyle . However , it found , referring to the gravity of the charges , that “ the grounds on which the preventive measure [ had been ] previously imposed , still exist[ed ] ” and that “ the case file gave sufficient reasons to believe that , once released , the defendants would flee or interfere with the trial ” . It therefore ordered that all the defendants should remain in custody pending trial .

On an unspecified date in DATE the applicant and his codefendants lodged applications for release . ORG rejected these requests on DATE , finding that their detention was lawful and justified . On DATE ORG upheld the decision of DATE on appeal .

On DATE the applicant and his co - defendants lodged new applications for release . On DATE ORG rejected the requests . It held :

“ The court takes into account the defence ’s argument that an individual approach to each defendant ’s situation is essential when deciding on the preventive measure .

Examining the grounds on which ... the court ordered and extended the detention period in respect of all the defendants without exception ... the court notes that these grounds still persist DATE . Therefore , having regard to the state of health , family situation , age , profession and character of all the defendants , and to the personal guarantees offered on their behalf by certain private individuals and included in the case file , the court concludes that , if released , each of the applicants might abscond or obstruct the course of justice in some other way ...

In the court ’s view , in these circumstances , having regard to the gravity of the charges , there are no grounds for varying or revoking the preventive measure in respect of any defendant ... ”

On DATE ORG extended the detention in respect of all the defendants , including the applicant , until DATE . The court stated as follows :

“ According to the materials in the criminal case file , the circumstances taken into account by the court when it authorised the pre - trial detention period and its extension for all the defendants still persist .

Regard being had to the above and taking into account the state of health , family situation , age , employment and character of all the defendants , the court concludes that , if at liberty , each of them might abscond or otherwise interfere with the criminal proceedings . ”

On DATE ORG found the applicant and his co - defendants guilty of participation in mass disorder . It gave the applicant a DATE suspended sentence and then released the applicant on DATE probation .

The applicant was held in remand prison no . IZ-CARDINAL/CARDINAL in GPE from DATE to DATE . According to his submission , he was detained in a cell together with CARDINAL other inmates . The cell was overcrowded . The light was never turned off which disturbed the applicant ’s sleep . The cell was not ventilated . The lavatory pan was separated from the living area by a makeshift partition – QUANTITY in height . The person using the toilet was in view of other inmates . The applicant was allowed to take a shower for TIME once a week and a daily walk for TIME . Inmates were not given enough food and medicine , save for aspirin and other analgesics . The applicant claimed that he suffered from epilepsy but received no treatment .

According to the ORG , the applicant was detained in cells nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL . At all times he was provided with his own bed , bedding and cutlery . Not only did the cells where he was held provide access to daylight , they were equipped with artificial lighting as well . The ventilation system was in good working order . In addition the vents in the windows permitted access to fresh air . All cells had a sink , a water tap and a toilet which was separated by a partition , QUANTITY in height , from the living area . The applicant could take CARDINAL shower per week for TIME . During DATE the lighting was on from TIME , with lower - voltage bulbs being constantly in use to light the lavatory at TIME . The applicant was provided with CARDINAL meals a day and unlimited access to medical care .

For a summary of the relevant domestic law provisions governing conditions and length of pre - trial detention , see the cases of ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , DATE .