Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

ORG Mr PERSON , an NORP national born in DATE , lives with his wife in GPE .

ORG At the material time the Security Branch of ORG ( Sicherheitsbüro der Bundespolizeidirektion ) included CARDINAL units assigned to investigating drug offences . CARDINAL of these , led by Chief Inspector PERSON , had particular responsibility for cases involving fatalities .

ORG On DATE , following the deaths of CARDINAL people from heroin overdoses , the girlfriend of CARDINAL of the deceased went to the headquarters of Mr ORG unit and made a statement alleging that her boyfriend had told her that he intended to obtain drugs from the applicant .

Acting on this information several of the unit ’s officers questioned the applicant on DATE and searched his home , although they had no warrant . The search revealed nothing and the applicant and his wife were authorised to leave for GPE on holiday that DATE .

ORG On DATE CARDINAL of the deceased was recognised as a rock singer who was very well known in GPE . This led to pressure from the media to find the dealer who had sold the heroin that had caused the deaths . Mr ORG unit conducted numerous inquiries DATE .

ORG On DATE another ORG unit , led by Chief Inspector PERSON , and including at the material time Police Officers PERSON , LOC and PERSON , received an anonymous telephone call accusing PERSON of selling heroin to one of the deceased .

At TIME a number of officers belonging to this unit arrested the applicant and his wife for drug trafficking and searched their home , although they had neither a search warrant nor an arrest warrant . The search revealed CARDINAL g of hashish .

Mr PERSON and his wife were held in police custody at the headquarters of the Security Branch of ORG from TIME on DATE to TIME on DATE .

ORG There are CARDINAL conflicting versions of what occurred during the period of police custody .

According to the applicant , the officers questioning him grossly insulted him and then assaulted him repeatedly in order to wring a confession from him . He received punches to the head ( PERSON ) , kidneys and right arm and kicks to the upper leg and kidneys . He was pulled to the ground by the hair and his head was banged against the floor . MONEY of his injuries were inflicted by blows from Police Officer PERSON . When released he had bruises on his right arm and one thigh and was suffering from a cervical syndrome , vomiting , diarrhoea and a violent headache .

A different version was given by PERSON in a report that was dated DATE but purported to give an account of events which , according to the report itself , had occurred on DATE from TIME , on DATE at TIME and on DATE at TIME The report stated that in TIME DATE the applicant was taken from police headquarters to an acoustic research institute so that his voice could be compared with that of a person who had made an anonymous phone call to the GPE emergency services . As he was getting out of the police car , and while he had handcuffs on his wrists , PERSON had slipped and his right arm had banged into the rear door . PERSON , who had opened the door for him , managed to grab hold of his left arm , but was not able to prevent him from falling . However , his fall had largely been broken and he had landed " gently " on his behind . It was only TIME , when being questioned , that the applicant informed the police of his injury , although he refused medical attention .

ORG On being released from police custody the applicant informed several members of his family , a psychologist and a journalist of the ill - treatment he had allegedly suffered . On the latter ’s advice he went to ORG in TIME DATE , where he was examined from TIME , and to his general practitioner the following day . The hospital report recorded bruises measuring QUANTITY in the middle of the outside of the right arm , and an appended neurological report recorded bruises on the outside and inside of the right arm . No other injury to his limbs was found . PERSON showed no broken bones . The doctor ’s report stated that the applicant had several bruises on his right arm and symptoms characteristic of a cervical syndrome , that he was suffering from vomiting and a violent headache and that he had a temperature of CARDINAL oC. A photographer took a photograph of PERSON injuries .

ORG On DATE , following a programme on NORP radio about the methods allegedly used by the police when they questioned PERSON and PERSON , ORG began an inquiry into the officers concerned and sent the results to the public prosecutor ’s department on DATE .

On DATE the applicant lodged a civil party claim for damages under LAW ( GPE ) .

ORG On DATE the judge of ORG PERSON ) conducted the preliminary inquiries ( ORG ) and heard Mr and PERSON as witnesses and Police Officers Trnka , PERSON , PERSON and PERSON as accused ( PERSON ) .

In its report the ORG gave the following account of the statements they made :

" CARDINAL . ORG The applicant stated that on CARDINAL DATE he had been arrested by CARDINAL police officers , inter alia Markl and LOC . Following the taking of photographs and fingerprints , the questioning had started in TIME . At the first questioning QUANTITY police officers had been present , who had interrogated him in turns . The applicant also indicated that the police officers , with the exception of Police Officer PERSON , were drinking wine . In the course of the questioning , their superior Mr PERSON had started to pull his handle - bar moustache and to go around the room with him , and then also slapped him in the face . As he still had not confessed , Police Officer PERSON had begun to hit him . He knew about this officer ’s identity as he had seen him signing the record . Police Officer PERSON had been sitting at the typewriter . He had been the only officer behaving correctly . Police Officer PERSON had continued to hit him in the course of the ensuing interrogations . PERSON had been the CARDINAL hitting him most of the time , though , while he had been lying on the floor , others had also kicked him . On DATE , even a legally qualified person had been present for a short time and had seen that he had been beaten . Police Officer PERSON further had attempted to provoke him to hit back . PERCENT of his injuries had been caused by PERSON . The haematoma on his right upper arm had been caused by PERSON ’s punches . PERSON had further kicked him and caused a haematoma on his right or left lower leg ; the print of the shoe had later been seen on his trousers . Police Officer PERSON had also grasped his hair and had thrown him to the floor . Upon questioning , the applicant stated that there had been no accident when he was taken by car to have his voice compared .

ORG Police Officer Trnka stated that he had been working with , inter alia , ORG PERSON . He could not remember whether he had been present upon the applicant ’s arrest . He had conducted the questioning of the applicant ’s wife . The applicant had been questioned in another room , he had sometimes been there to put questions to the applicant . He had learnt about the injuries sustained by the applicant in the media . He himself had not beaten or kicked the applicant , nor seen that his colleagues had done so . The police officers had not drunk alcohol in the course of the interrogations . Moreover , though working hard , they had always taken a break at least TIME

Police Officer PERSON explained that he had been leading the particular work unit since DATE , Police Officer PERSON had been in this unit for DATE , Police Officer PERSON for DATE and Police Officer Trnka for DATE . He had been present at times at the interrogations of both the applicant and his wife . He had not touched the applicant or pulled his moustache , though he remembered that the applicant had a peculiar moustache . At the relevant time , they had worked overtime , but there had not been any particular pressure upon them . He had been informed at that time that the applicant had stumbled in the course of getting out of a police car , Police Officer PERSON or PERSON had informed him of this . He had not known about any injuries . He had instructed his colleagues to draft a report on the incident . There had been no alcohol in the room where the interrogations had taken place .

According to Police Officer PERSON , who had joined the work unit in DATE , Police Officer PERSON had conducted the questioning of the applicant in the presence of always CARDINAL or CARDINAL colleagues . Upon questioning , he confirmed that a legally qualified person , namely a superior , had been present for a short time at one of the interrogations . No alcohol had been drunk in the course of the questioning . They had worked overtime , but there had been no particular pressure . PERSON , stating that he had been present at most of the questioning , denied that the applicant had been bodily assaulted . PERSON continued that on DATE he had , together with Police Officer PERSON , taken the applicant to have his voice compared . PERSON had driven and PERSON had been at the rear with the applicant who had been handcuffed with his hands in front of his body . The applicant had probably stepped out of the rear left door . PERSON indicated that he had not seen the applicant stumble , but heard something like it . When he had turned around , he had seen PERSON already holding the applicant . The applicant had said that he was not hurt . The next day the applicant had mentioned the bruise on his upper arm . CARDINAL of them had informed Police Officer PERSON about the bruise , and PERSON had advised them to draft a report on the incident .

CARDINAL Police Officer PERSON stated that he had joined the work unit of Police Officer PERSON in DATE . He had at the time interrogated the applicant , but he had certainly not been alone : in order to avoid unfounded allegations , other colleagues had been present for at least part of the time . PERSON denied having used violence against the applicant , and supposed that the applicant and his wife , for unknown reasons , wanted to take revenge on them . As to the course of the interrogations , PERSON specified that at the beginning the applicant had denied any involvement in the offences at issue ; only in the further course of questioning had he given the decisive hint as to the identity of the actual culprit . As regards the injuries sustained by the applicant , PERSON confirmed his statements in his report of DATE . During the drive , he had been sitting next to the applicant , who had been handcuffed with his hands in front of his body , in the rear of the police car . PERSON continued that he had opened the door on the applicant ’s side from the outside . The applicant had stumbled while getting out and fallen , knocking his right arm against the doorframe . PERSON had only been able to stop him falling . The applicant had said that he was all right . Only the next day had he mentioned a bruise on his right upper arm . PERSON could not remember any other injuries or a footprint on the applicant ’s trousers . PERSON clarified that he had written the report concerning the accident on DATE , but had put the date of the incident . PERSON further confirmed that a superior , possibly presented as a legally qualified person , had shortly been present at CARDINAL of the interrogations . PERSON also indicated that he worked normally TIME overtime per month ; at the relevant time he had possibly done TIME overtime . Moreover , they had not consumed any kind of alcohol during their work . "

ORG On DATE the trial of Police Officers Trnka , PERSON and PERSON on charges of assault occasioning bodily harm opened in GPE , composed of a single judge . During the trial the judge examined the accused and several witnesses , namely PERSON and PERSON Ribitsch , Police Officer PERSON , PERSON , the head of the CARDINAL units of ORG of ORG , and all those who had seen the applicant ’s injuries or been informed by him of the ill - treatment he had undergone . These included PERSON , the general practitioner , PERSON , the psychologist , PERSON , the journalist , and PERSON , the photographer .

In its report the ORG gave the following account of their statements :

" CARDINAL . ORG Police Officer PERSON referred to his earlier statements . Upon questioning , he explained that due to information given to him , the investigations concerning the case in question had been transferred from another work unit at ORG . Following their arrest , the applicant and his wife had been brought to ORG . Questioned about the further development of matters regarding the applicant , Police Officer PERSON stated that the applicant ’s identity had been established and he had been questioned about the offences concerned . PERSON confirmed that Police Officer PERSON had been present in the course of the interrogation . However , he could not remember whether Police Officers PERSON and LOC had been also there . The applicant had claimed to be innocent , and even claimed that he had nothing to do with drugs and in particular opium . He had complained that the police was again creating difficulties . Moreover , the applicant had repeatedly indicated that he would cause troubles and ridicule them . Police Officer PERSON then described the events when the applicant had been taken out of the building of ORG : The applicant had been handcuffed with his hands in front of his body , he had been sitting in the rear of the police car . Upon arrival , PERSON had opened the door where the child lock had been in position as a precautionary measure . When getting out of the car , the applicant had lost his balance , had fallen and hit his right arm against the door frame . He had shown his injury , a round bruise , but had not wanted to see a doctor . Upon further questioning by the public prosecutor , PERSON stated that , upon the arrest , a piece of hashish had been found upon the applicant , nothing upon his wife . However , police informers had told them that the applicant had been dealing with heroin and had been selling washing powder to drug addicts . This information had not been recorded as the informers were not prepared to make a statement for the record . Upon further questioning , PERSON indicated that , having first denied any relationship to CARDINAL of the victims , the applicant and his wife had later admitted a close relationship .

ORG Police Officer Trnka first made some more general remarks about the organisation and distribution of work between the CARDINAL units dealing with drug offences . He remembered that he had been present at the arrest of the applicant and his wife and that he had interrogated the applicant ’s wife . Though he had not assisted in the questioning of the applicant in the adjoining office , he had occasionally come to put questions to the applicant . They had mainly inquired about discrepancies in the spouses’ statements about their alibi . He had learnt about the injury sustained by the applicant only after his release .

ORG Police Officer PERSON , the head of the work unit concerned , also explained that following information obtained by Police Officer PERSON on the particular case , it had been transferred from another work unit which had initially conducted the investigations . He had seen the applicant for the first time during the interrogation in the afternoon . Together with Police Officer Trnka he had questioned the applicant ’s wife , but also the applicant in order to verify their alibi , as there had been discrepancies in their statements . As regards the applicant ’s injury , he remembered that either Police Officer PERSON or Police Officer PERSON had informed him about the incident in the course of the escorted visit . He had instructed them to draft a report . Being asked in detail about the applicant ’s allegations of ill - treatment , PERSON stated that it appeared practically impossible to pull the applicant around by his moustache without leaving injuries to his face .

ORG The applicant , heard as a witness , stated that , following his arrest in TIME , he had first been questioned in TIME by Police Officers Markl and PERSON , in particular about his alibi . Violence had been used , PERSON had pulled him around the room by his moustache , and he had been slightly hit on his head . In TIME , he had again been interrogated , and because he had refused to admit that he had given drugs to the CARDINAL persons who had subsequently died , he had been beaten TIME . He had also been kicked while lying on the floor , and had therefore not seen the persons who had kicked him . Police Officer PERSON had hit him on the upper arm and kicked him . On CARDINAL occasion , a legally qualified person had been present who had not stopped the beatings . Police officers from another group had also been present ; there had been continual changes . In between , he had been escorted to have his voice compared . Questioned about the escorted visit , the applicant denied that he had stumbled while getting out of the car . He also confirmed that Police Officer PERSON had not hurt him .

ORG The applicant continued that he had been released on DATE at the same time as his wife ; they had gone home where he had met his brother and a psychologist , PERSON , with whom he was acquainted . He had only later noticed that a footprint on his trousers was consistent with an injury to his leg . After having taken a shower and changed clothes , he had met the journalist PERSON . Subsequently he had gone to the hospital . CARDINAL fingers of his right hand had been numb . On DATE he had got a stiff neck , he had vomited . The applicant stated that he had not eaten for DATE and that he had a nervous stomach . He further stated that he had health problems due to the fact that PERSON had pulled him by the hair off a chair and on to the floor .

ORG The applicant ’s wife stated that she had been questioned by Police Officer Trnka , subsequently cross - examined by CARDINAL persons and later by Police Officers Markl and PERSON . She had been released at the same time as her husband who had told her immediately that he had been hit and beaten and pulled by his moustache and hair . She had seen the bruises mentioned by him , and also the shoe - print on his trousers . Her husband had said that Police Officer PERSON had caused the injuries . Her husband had complained about pain in the neck , headache , and later a feeling of numbness in his right hand .

ORG Police Officer PERSON was next heard as a witness . He stated that following a tip - off about who had given the deceased the drugs the case had been transferred to their work unit . Because of the rivalry existing between the units , information of such kind would not be passed on . Upon his arrest , the applicant had said that he would cause difficulties . However , during his interrogation , the applicant had been quite calm . PERSON denied having seen that the applicant had been hit . As regards the escorted drive , PERSON indicated that he had parked the police car rather close to another car . Police Officer PERSON had opened the door for the applicant . According to PERSON , there had been a noise and , turning around , he had seen that PERSON was holding the applicant . PERSON confirmed that Police Officer PERSON had advised them to draft a report on the incident .

ORG The applicant ’s doctor , PERSON , confirmed that he had examined the applicant who had been undressed . The applicant had several haematomas , the largest on his right upper arm . ORG had the impression that the applicant had either bumped against something or had been hit . PERSON excluded that a fall against a doorframe could have caused these haematomas . The applicant had not indicated that he had been hit by the police . PERSON had not ascertained injuries to the legs , but there were other bruises and the applicant had complained about vomiting and headache . The applicant had not had a concussion but , as a consequence of a cervical syndrome , had been unable to turn his head . Upon questioning , PERSON stated that such a cervical syndrome could have several causes , inter alia , a cold or the fact that somebody had been several times pulled by his hair . However , the cause could not be objectively established .

ORG The psychologist PERSON , who had seen the applicant after his release , confirmed that the applicant had told him about his arrest and detention and about having been hit and maltreated by the police , in particular one police officer . PERSON further said that he had not looked for any injuries . He also stated that he had not for a moment had the impression that the applicant had made up his story .

ORG The court next heard Mr PERSON , the head of the section - with CARDINAL work units - at ORG which had been responsible for the investigations in the opium poisoning cases . PERSON first explained the organisation and distribution of work between the units and , in this context , excluded rivalry between the units . Moreover , PERSON stated that he had been present at the questioning of the applicant by Police Officers PERSON and PERSON for TIME . PERSON remembered that he had advised the applicant that a confession could result in the court passing a more lenient sentence . Being confronted with the applicant ’s allegations , PERSON denied that the applicant had been tortured or beaten ; rather , the atmosphere had been friendly .

ORG The applicant ’s sister - in - law , PERSON , described the state of the applicant and his wife following the release from detention . PERSON confirmed in particular that she had seen the bruise on his right upper arm and that the applicant had told her that he had been pulled around by his hair , thrown to the floor , punched and that CARDINAL or QUANTITY police officers had been present most of the time , the most brutal CARDINAL having been the Police Officer PERSON . She could not remember having seen a shoe - print on the applicant ’s trousers .

ORG [ The applicant ’s brother ] PERSON stated that when they had met at the applicant ’s apartment the applicant had told him that he had been subjected to physical violence while in detention , namely that he had been beaten , kicked and pulled by the hair to the ground . PERSON had seen several bruises on the applicant ’s body , and a shoe - print on the applicant ’s trousers . The applicant had also told him that he had problems with his stomach and had vomited .

ORG The applicant ’s sister - in - law , PERSON , and his brother PERSON were subsequently questioned about whether the applicant had mentioned an accident in the course of an escorted visit . PERSON stated that the applicant had mentioned that CARDINAL of the police officers had told him that this was the cause of his injuries . PERSON had not heard about this .

ORG The reporter PERSON had been informed by the applicant ’s sister - in - law , PERSON , about the applicant ’s allegations of ill - treatment in the course of his police detention . PERSON had thereupon arranged by phone a meeting with the applicant . PERSON had been shown several injuries , haematomas on the applicant ’s right arm , the largest on the outside , CARDINAL or CARDINAL smaller on the inside . PERSON had photographed them DATE for the purposes of a story in a magazine . Upon questioning , PERSON indicated that the applicant had told him that his voice had been compared , but not that he had fallen out of the police car .

ORG PERSON then turned to read from the notes which he had made in the course of the conversation with the applicant at the time according to which the applicant had given the following account : the head of the group had pulled him by the beard and hit him on the head with the flat of his hand ; during the first interrogations he had been insulted , but not yet been hit . Following the escorted visit to ORG , the police officers had shaken him by the feet and hands and beaten him for TIME . There had been bottles of wine in the office and the police officers had been smelling of alcohol . Police Officer PERSON had behaved correctly and not hit him , Police Officer PERSON had hit him the most . They had also threatened to place his children at a children ’s home . Only at the last interrogation in TIME before his release , all police officers , including PERSON , had been friendly and polite .

ORG PERSON also indicated that he had seen a footprint on the applicant ’s trousers which appeared to have been dragged over the floor . PERSON continued that he had verified that the shoe - print coincided with a haematoma on the applicant ’s leg below his knee . Upon questioning , PERSON stated that he did not have the impression that the applicant had been acting .

ORG The photographer PERSON , a colleague of the journalist PERSON , confirmed that he had photographed the injuries suffered by the applicant , namely a severe bruising on his right upper arm . He also remembered injuries to the applicant ’s legs . He had not taken photographs of the smaller injuries as they would not have been visible . "

ORG At the end of the trial ORG found Police Officer PERSON guilty of assault occasioning bodily harm , within the meaning of Article CARDINAL para . CARDINAL of LAW ) , and sentenced him to CARDINAL months’ imprisonment , suspended , and CARDINAL years’ probation . It also ordered him to pay PERSON the sum of CARDINAL NORP schillings ( ORG ) . The other CARDINAL police officers , Mr Trnka and PERSON , were acquitted .

In its judgment of CARDINAL DATE the court gave a brief account of the criminal investigation , referring to the pressure the officers in Mr PERSON ’s unit had been under to find the guilty person and TIME of overtime they had put in on that account . It then described the ill - treatment suffered by the applicant while in police custody and excluded the possibility that his injuries could have been caused accidentally . The court based its judgment on the evidence given by PERSON , who had made an excellent impression in the witness box , and by the witnesses , particularly the journalist who had seen the applicant on DATE when he was released from police custody and had taken notes . It went on to say :

" In summary , the court therefore notes that the injuries sustained by PERSON were seen by several people who were not in any way involved in the events giving rise to the case . These injuries consisted of several bruises - not a slight abrasion or a small bruise - on the upper right arm . The claim that a cervical syndrome was sustained is credible , given the description of how it occurred , namely by the head being pulled violently backwards by the hair . It is a fact recognised by the courts ( gerichtsbekannt ) that it is impossible to prove the existence of a cervical syndrome by objective means , even using X - rays . To have consulted a medical expert for this purpose would therefore merely have led to a delay in the proceedings . A haematoma about as big as an egg , many other bruises and a cervical syndrome constitute bodily harm . This is not a question for an expert ; it is a matter for the court , which it has duly determined in accordance with the consistent case - law .

It is not only the testimony that has so far been heard which is persuasive of PERSON credibility but also his excellent memory of the persons concerned . In this connection , the court would refer to the identity parade on DATE , that is DATE after the offence ( file , item CARDINAL ) . At this identity parade , consisting of a total of QUANTITY persons , PERSON did not hesitate for CARDINAL moment in recognising those involved in the police interviews , and in particular the accused PERSON .

Ranged against this evidence is the line of defence established by the accused , which can only be described as disquieting . Both he and his defence lawyer , as well as his superior officer , PERSON , attempted at the trial ( file , page CARDINAL in item CARDINAL ) to make PERSON out to be a despicable , work - shy individual . Apart from the fact that an officer of ORG does not have the right to beat someone up in order to induce him to make a confession , simply because he is unemployed , what is noteworthy here is the obviously misguided attitude of the accused to his legal obligations . In his efforts to portray the witness PERSON as a depraved individual , he suddenly claimed at the trial that the CARDINAL anonymous callers had been PERSON and PERSON . He had , he stated , in the meantime learned from them that ‘ PERSON [ was ] a despicable creature ( eine miese PERSON ) because he [ sold ] washing powder to the poorest of the poor , the drug addicts’ ( file , page CARDINAL in item CARDINAL ) . When the court asked him whether he had reported this , he was forced to reply that he had not . He subsequently went on to entangle himself in more and more contradictions concerning the statements made by these CARDINAL witnesses ( file , page CARDINAL in item CARDINAL ) . If the accused ’s claim were really true this would mean that an officer of ORG , who had good reason to suspect someone of , at the very least , deliberately inflicting grievous bodily harm by selling washing powder he passed off as heroin , did not consider it necessary in any way at all to perform his duty under LAW . The conclusion must be drawn that the accused PERSON would prefer to allow criminal acts to be committed with potentially fatal consequences than to run the risk of having people say that he now wants to pin something on PERSON - which he is obviously afraid of ( see page CARDINAL ) .

With regard to the application for a forensic doctor to be appointed with a view to showing that the injuries and the haematoma could also have been caused by a fall against the edge of the car door and that the other bruises on the inside of the upper right arm were caused when the former suspect ’s arm was grabbed , the court notes as follows : The accused PERSON himself states in his ( wrongly dated ) report ( file , page CARDINAL ) that when PERSON was taken away for the voice comparison to be made he evidently missed his footing getting out of the car , which caused him to lose his balance and his right arm to bang into the edge of the car door , which had remained open . He , PERSON , who had been standing right next to him , had managed to grab his upper left arm but had not been able to prevent him from falling . However , due to his intervention the fall had been rendered much less serious , and PERSON had only fallen gently on to his behind . PERSON therefore himself states that he grabbed PERSON by the left arm , so that he can not have inflicted a bruise on the inside of the right arm by catching him in this way . However , this version of events in the report is also contradicted by the witness PERSON ( file , page CARDINAL in item CARDINAL ) . This witness stated that there had been a big problem finding a place to park . He had had to park very close to another vehicle , so that he had had a great deal of trouble getting out of his own . It is ` very strange’ ( lebensfremd ) that , although the driver of the vehicle had great difficulty getting out of it on his side , and although , because of the tight squeeze , the suspect at the time ( PERSON ) must obviously also have had trouble getting out - PERSON stated that PERSON sat directly behind the driver - there was yet sufficient room for PERSON to fall against the edge of the door and then on to his bottom . If one considers PERSON size , that is impossible . Furthermore , the witness ORG , who is a general practitioner , made a statement as an expert witness that was both credible and ` easy to understand’ ( nachvollziehbar ) , namely that whilst the largest bruise had been on the upper right arm it had not been the only one there . He continued by drawing attention to a phenomenon that the courts have recognised in many previous cases , namely that a person who falls against a hard edge normally has a graze or a skin wound , whereas when a person falls against or is struck by something without sharp edges , whether it is something with a large surface area or a fist , it is not the surface that is affected but the soft tissues underneath the skin ( file , page CARDINAL ) . Similarly , a cervical syndrome could be the result of PERSON ’s head being violently shaken .

In law , both the objective and the subjective elements of the offence have been made out and PERSON is therefore guilty of the offence of assault occasioning bodily harm as defined in Article CARDINAL para . CARDINAL of LAW . The conditions laid down in LAW are not satisfied since this kind of behaviour can not be classified as a trivial offence . Moreover , the specific , and above all general , requirements of deterrence militate against the application of this rule . PERSON was unable to prevent himself from committing the acts in issue in the instant case , even though he must have known that similar proceedings ( where the facts were more serious ) had already been brought against one of his superior officers , Mr Gross .

In sentencing the accused , the court considers the fact that the accused has no previous convictions to be a mitigating circumstance . On the other hand , his particularly brutal conduct constitutes an aggravating circumstance . Given a possible maximum sentence of DATE , the sentence imposed of DATE is reasonable in view of the offender ’s personality and the degree of culpability . For general reasons of deterrence - more and more accusations directed against the brutal policemen ( prügelnde Polizisten ) of the Security Branch have been made in DATE - a fine would not have been sufficient .

In view of the length of prison sentence imposed , it must , however , be assumed that the threat of its execution will be sufficient to deter PERSON and others from committing criminal acts . For this reason , the court has been able to impose a suspended sentence . "

Mr PERSON appealed against the judgment to ORG ( PERSON für PERSON ) .

ORG By an interlocutory decision of CARDINAL DATE the court ordered an expert opinion to be produced by ORG concerning the probability of there being a causal connection between PERSON injuries and the accident which had allegedly occurred when he was taken out under police escort , and the credibility from the medical point of view of the applicant ’s statements regarding the ill - treatment he had undergone .

ORG After interviewing both PERSON and PERSON and organising a reconstruction of the applicant ’s alleged fall against the rear door of the police car , the expert from ORG summarised his findings as follows :

" Therefore , judging by ORG medical records , PERSON had a group of bruises on the outside of his upper right arm covering an area of CARDINAL by QUANTITY . Moreover , the findings of the neurological examination also contain a description of bruising to the inside of the right arm . Thus , the only injuries established by doctors were the bruises on the outside and inside of the upper right arm described above . These bruises must be regarded as minor and are to be interpreted as the result of dull blows to these parts of the body ( lokale stumpfe PERSON ) . They are not likely to result in CARDINAL days’ sickness or unfitness for work .

Whether there was further bruising in the area of CARDINAL armpit and below the right knee must be left to the judge ’s assessment of the evidence , as no medical findings were available to form the basis for an opinion on this question . The decisive factor is the credibility of the witness evidence . Even if CARDINAL assumes that these haematomas existed it would make no difference to the assessment of the consequences of the injuries described above .

The general practitioner PERSON diagnosed a cervical syndrome and pointed to vomiting , headaches and a raised body temperature . However , the neurological examination conducted at ORG did not reveal any evidence of a head injury or a displaced cervical vertebra . These symptoms can be interpreted in this case as non - specific complaints , resulting , for example , from a general infection ( PERSON ) ( PERSON stated that he was suffering from diarrhoea ) . On the other hand , from the point of view of forensic medicine , no connection can be proved with any trauma that may have been suffered .

The results of the test carried out with the car - no big differences are to be expected with a ORG - showed that the bruising to the outside of the upper right arm was roughly consistent as far as its position was concerned with the bruise on the outside of the upper arm described in the outpatient records and visible in the photograph . From the medical point of view these injuries must be described as non - specific injuries , and they only support the conclusion that this area of the body was violently struck by a blunt ‘ instrument’ , without it being possible to conclude from the nature of the damage what kind of instrument it was . The possibility can not therefore be excluded that the injury was caused by a bump against the car door .

Even if one proceeds upon the assumption that the injuries described by the witnesses existed , the general diagnosis must , on the whole , be described as non - specific , so that no certain conclusion can be drawn from the medical point of view as to whether there was maltreatment , although blows to the upper arm and , perhaps , a kick in the knee area can not be excluded . However , serious ill - treatment lasting TIME can not in any case be deduced from the overall pattern of the injuries .

However , the version submitted by PERSON , namely that PERSON fell against the car door can explain CARDINAL of several injuries that may have been sustained . "

ORG At the hearing on DATE the expert ’s report and a statement by the " police detention centre " to the effect that the prison doctor had seen PERSON at TIME on DATE and had declared him fit for detention were read out . The court then heard Police Officer PERSON , PERSON PERSON and the expert from ORG .

In its report , the ORG gave the following account of PERSON and the applicant ’s declarations :

" CARDINAL . ORG Police Officer PERSON was again questioned on the accusations against him , brought both by the applicant and his wife . PERSON expressed the view that the applicant ’s wife had suffered from the fact of her detention as such and had , together with her husband , concentrated upon PERSON against whom to bring their accusations . PERSON remembered that upon his arrest the applicant had threatened to cause difficulties . At a later stage , when his superior PERSON had been present , there had , as usual , been a rather calm atmosphere . At the questioning on DATE , the applicant had shown him the bruising on his right upper arm , but had not wanted to see a physician . PERSON also repeated his version of the incident upon the applicant ’s escorted visit .

ORG The applicant was questioned about his professional training and his past occupations , his financial situation , furthermore about his contacts with drugs . Questioned about the alleged escalation of the interrogation , the applicant stated that the police officers had wished to find a culprit by any means . As regards the first questioning on DATE , he stated that Police Officer PERSON had disliked CARDINAL of his answers and , therefore , pulled him by his moustache out of the chair and later put him down again . As he had not resisted , his moustache had not been torn off . Police Officer PERSON had already hit him at that stage , however not in the face ; throughout the beating PERSON had attempted to avoid marks as far as possible . The applicant further stated that he had not suffered any accidental incident upon his escorted visit , and he insisted that at the time he had been driven in a CARDINAL - door car , whereas the reconstruction had been done with a CARDINAL - door car . The applicant was subsequently questioned in detail about the course of the maltreatment to which he had allegedly been subjected . He repeated his earlier statements that PERSON had mainly beaten and kicked him and pulled him by the hair , though , when lying on the floor , he had the impression of being kicked by CARDINAL person . Questioned about the varying statements in the course of the proceedings as to the shoe - print , the applicant insisted that the haematoma had been on his lower leg underneath his knee , as had the shoe - print on his trousers . He could not say with certainty that PERSON had kicked him , causing this particular haematoma . The applicant also said that he had chosen counsel to represent him in this matter only after having gathered information . The reporter of the public broadcast had coincidentally been present in a pub where he had told friends about the incidents . "

ORG At the end of the trial ORG quashed ORG judgment of CARDINAL DATE and acquitted PERSON . Pursuant to Article CARDINAL para . CARDINAL of the Code of Criminal Procedure , it referred the applicant to the civil courts in respect of his claim for damages .

In its judgment of DATE the court set out its reasons as follows :

" However , the defence lawyer ’s written appeal against conviction and his oral pleadings at the hearing on DATE cause attention to be focused on the question whether on its own , and in context , the evidence incriminating the accused provides a sufficient degree of reliability to support a verdict of guilty , since it must be borne in mind that the civil party PERSON has been involved , from time to time at any rate , in the drug scene .

The position confronting the appeal court as regards evidence ( ORG ) is as follows : while it is true that the statements made by all the witnesses informed by the civil party PERSON tallied perfectly with his own version of events , which always remained the same , the objective accuracy of this version stands or falls solely on the reliability of the evidence given by PERSON . Moreover , like the court of first instance , the appeal court has no doubt as to the subjective accuracy of the statements made by the witnesses PERSON , PERSON , PERSON , PERSON and PERSON , and can therefore base its decision on the record of their testimony , in accordance with Article CARDINAL para . CARDINAL of LAW . Nevertheless , it considers it necessary to inquire into PERSON credibility , to weigh up his story against that of the accused and to supplement the evidence adduced in the proceedings at first instance by consulting an expert from ORG . "

With regard to the applicant ’s credibility , ORG pointed out that on DATE ORG had found him guilty of drug offences and ordered him to pay a fine . Moreover , he had been unemployed for DATE and lived off his wife ’s income and social security benefits . These resources were not , however , sufficient to cover his expenses as a drug user who was the father of CARDINAL minor children at the material time , or his other personal expenses . The court then summarised the versions given by PERSON on the one hand and PERSON on the other of the events which had occurred while the applicant was in police custody , and went on to say :

" Neither PERSON account nor the testimony of his wife PERSON in the file have been able to satisfy the appeal court conclusively that there was a situation which could logically explain why the police interviews degenerated into criminal behaviour . Moreover , seeing that CARDINAL police officers were present and asked questions during the interviews , and were busy for part of the time interviewing PERSON , that Police Officers PERSON and PERSON , who were subsequently acquitted , were cleared of blame by PERSON himself ( vol . II , pages CARDINAL and CARDINAL ) and that neither PERSON nor his wife PERSON accused Police Officer PERSON , who treated them correctly , of any offence ( PERSON to PERSON , vol II , pages CARDINAL and CARDINAL ; PERSON , vol . I , page CARDINAL ) , the appeal court considers that it remains a completely open question which other ORG officers might have been PERSON accomplices ( Mit- oder PERSON ) . The view of the evidence taken by the court of first instance , to the effect that public pressure to solve the crime , which was reflected in TIME of overtime ( confirmed by the Chief of Police , PERSON , in vol . I , pages DATE and DATE ) , constituted sufficient motivation , does not appear to the appeal court to be capable of bearing scrutiny ( tragfähig ) , since one can not simply assume that a police officer , and CARDINAL moreover who had good reason to be aware of the heightened vigilance of the media , would let himself be drawn into criminal acts in a way that defies all logic .

PERSON version of events , according to which , ` TIME and CARDINAL p.m. on DATE he was questioned for periods of CARDINAL of an hour , each time by CARDINAL police officers , after which CARDINAL more officers banged his head against the floor and kicked him for CARDINAL of an hour’ ( vol . I , page CARDINAL ) leads CARDINAL to expect a large number of injuries , especially to prominent parts of the face . Similarly , PERSON ’s claim ( loc . cit . ) that he was hit on the body in such a way ‘ that this did not leave MONEY but was nevertheless very painful’ would suggest that the officers had gone about their task in a methodical way , but this can not be reconciled with PERSON account , according to which the officers , in their efforts to force him to confess , had lost all control over their actions . This version of events does not tally with PERSON ’s assertion that it was possible for him to distinguish between the officers questioning him and those who were maltreating him , given that , according to other statements made by PERSON , PERSON participated both in the interrogation and in the ill - treatment . "

The court then turned to the question of the injuries noted on the applicant ’s person .

( i ) It referred to Mr PERSON ’s statements to the effect that PERSON had lost his balance when he bumped into the car ’s rear door and had slid to the ground before he , PERSON , could grab hold of his left arm and break his fall . According to the forensic medical report , it was not impossible for the bruises on the outside of the applicant ’s right arm to have been caused by DATE , even though the general practitioner questioned by the court of first instance on this subject had stated that this was rather unlikely . Lastly , the expert from ORG , who had organised the reconstruction of the events , had stated that the more violent Mr PERSON ’s collision ( Anprall ) with the car door had been , the more likely it was to have caused the injuries , but that the more it resembled a mere slip to the ground ( ORG ) , the more improbable was the version of the events given by the accused .

( ii ) ORG The court added that CARDINAL of the witnesses , namely the journalist , had noted the existence of a bruise on the inside of the right arm , which in any case was not by itself proof of ill - treatment . Moreover , Mr PERSON had stated in that connection that he could not be sure he had not also grabbed PERSON right arm to stop him falling .

( iii ) As for the applicant ’s other symptoms , namely the cervical syndrome , stiffness of the fingers and diarrhoea , the court pointed out that , according to the report from ORG , these might also have been signs of a general infection .

The court refused the applicant ’s lawyer ’s request that further evidence be taken , such as re - examination of the witnesses , production of the recording made by NORP radio , reconstruction of the events with a CARDINAL - door ORG and a psycho - neurological report ; it also refused the prosecution ’s request for production of the Security Branch log - books so that it could be checked whether a CARDINAL - door or CARDINAL - door car had been used . It concluded in these terms :

" Finally , if one considers the fact that the civil party PERSON did not see fit to report the offence , that he has been unable in the course of these proceedings to state why he did not do so , that , for incomprehensible reasons , he chose the course of making a public accusation on NORP radio and that during the proceedings he became entangled in contradictions concerning the alibi to be proven by the witness PERSON , then there are considerable doubts as to the reliability ( verläßliche PERSON ) of his evidence .

The appeal court is therefore unable to reach a conclusive decision either to reject the accused ’s evidence or to accept even in part the evidence adduced by the civil party PERSON with the certainty which alone may be made the basis of a verdict of guilty in criminal proceedings .

Mr PERSON then applied to ORG , which gave judgment on DATE . It held that the applicant ’s arrest , his detention in police custody and the searches carried out at his home had been unlawful and had infringed his right to liberty of person and respect for his home . The police had not been in possession of either an arrest warrant or a search warrant and had not been able to establish the risk of collusion or immediate danger . It ruled that it had no jurisdiction to rule on the question of the insults allegedly uttered by the police to the applicant . As for the ill - treatment he had allegedly undergone , it noted that the CARDINAL defendants had been acquitted by the lower courts and concluded :

" In the light of this outcome of the criminal proceedings ( during which a large body of evidence was presented ) , ORG considers that it is not in a position ( außer PERSON ) to uphold the applicant ’s allegations and to consider the claims of ill - treatment made in the application to this court to have been proved beyond doubt . In summary , in the proceedings before ORG it was no longer possible , in the circumstances , to clarify the relevant facts any further , nor , consequently , to furnish proof of the alleged human rights violation .

On this point also , therefore - in the absence of a valid object - the application must be declared inadmissible ( unzulässig ) . "


The applicant is a NORP national , born in DATE and living in LOC .

He is represented before the ORG by PERSON , a lawyer practising in PERSON .

A.

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

The applicant was suspected of a number of thefts committed whilst on probational release for previous convictions . Several criminal proceedings were brought against him in DATE , the latest being instituted on DATE . The applicant was arrested on TIME . On DATE the prosecutor requested ORG to order the applicant ’s detention . An official defence counsel was appointed .

Again on DATE , at TIME a judge of ORG held a TIME remand hearing to which the prosecutor , the applicant and his defence counsel had been called . The prosecutor requested the court to order the applicant ’s remand in custody . The judge questioned the applicant , who admitted that he had committed the offences alleged . Then she permitted the applicant ’s representative to speak . Counsel requested the court to dismiss the prosecutor ’s remand application . He stated that there were no grounds for the detention as the applicant had accepted his guilt and would not hinder the investigation . ORG

The judge ordered the applicant ’s detention on remand until DATE . According to the written version of the detention order , the object of the detention was to prevent the applicant from committing new offences while he was suspected of having committed an offence , and to facilitate the determination of the truth in the case .

On DATE the applicant appealed against the detention order . In the appeal he mentioned that on DATE :

- his representative had been informed that he had to provide legal assistance to the applicant TIME before the hearing of the prosecution ’s application ;

- the lawyer had had no time or facilities to examine the contents of the prosecutor ’s request or to have access to the case - file , or to discuss defence tactics with the accused , because he had only become aware of the facts of the case during the prosecution ’s intervention at the hearing ;

- the judge had prevented the representative from speaking with the applicant before the hearing had started , allegedly warning the lawyer that the Bar could be informed of his behaviour , and that a disciplinary penalty would be imposed if the lawyer spoke to the applicant without the judge ’s permission ;

- the applicant and his counsel were not permitted to speak to each other or to ask questions throughout the hearing ;

- the judge held the hearing without wearing her judge ’s robe ;

- the judge delivered the detention order without retiring to reach a decision , although the transcript of the hearing of DATE by ORG wrongly stated that the court had so retired ;

- the judge ’s decision was read out in the courtroom without giving reasons for the detention ;

- the detention order was not presented for the applicant ’s signature ;

- the judge had not been impartial , and should have withdrawn because of her relations with the complainant in one set of theft proceedings .

The applicant alleged that the above circumstances involved major breaches of LAW and LAW , and that his detention could not be considered lawful in view of those irregularities .

On DATE the ORG heard the appeal in the presence of the applicant ’s representative and a prosecutor . The court dismissed the appeal , holding that the applicant should be in custody because of his propensity to crime , his lack of employment , the fact that he was charged with CARDINAL offences while still on probational release , and that he risked a custodial sentence of DATE imprisonment . ORG ruled that the applicant could reasonably be expected to engage in new offences whilst suspected of having committed an offence , and that therefore his detention was justified . By reference to LAW , ORG concluded that the alleged procedural irregularities of CARDINAL DATE did not “ alter the substance ” of the lawfulness of the applicant ’s detention .

B. Relevant domestic law

Relevant provisions of LAW

( PERSON proceso kodeksas ) :

Articles CARDINAL and ORG provide that no one can be detained save by virtue of a decision of a court or judge .

Article CARDINAL provides that a prosecutor , investigator or interrogator can temporarily arrest a person while he is committing an offence or immediately after its commission when there are grounds for detention on remand specified in LAW ( see below ) . This arrest can last for no longer than TIME , during which time the arrested person must be brought before a judge who decides whether or not to order detention on remand .

Article NORP § CARDINAL states that a suspect can be detained on remand where it is reasonably believed that he may :

( CARDINAL ) abscond from the investigation and trial ;

( CARDINAL ) obstruct the determination of the truth in the case ;

( CARDINAL ) engage in new offences whilst suspected of having committed particular crimes .

Article CARDINAL - CARDINAL provides :

“ … A prosecutor shall bring an arrested person … before a judge within TIME after the moment of the arrest , with the application to order his detention on remand … . The judge must hear the person as to the grounds of the arrest . The prosecutor and the counsel shall take part in the inquiry . The judge , of his own motion , or on a reasoned request of the prosecutor , the arrested person or his counsel , is entitled to hear the prosecutor in the absence of the arrested person and his counsel , or to question the arrested person and his counsel only . After having questioned the arrested person , the judge may accept the prosecutor ’s application and order detention on remand by designating the term of the detention , or refuse to accept the application and refuse to order detention .

Pursuant to Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL , a judge shall take a reasoned decision on the detention of a person , specifying the offence alleged against him and the grounds for the detention . The detention order shall be pronounced immediately after it is taken or within “ the shortest time possible ” , and it shall be presented for the signature of the detainee , unless the latter can not or does not want to sign it .

Article CARDINAL - CARDINAL provides :

“ A detainee or his counsel shall have the right during the preliminary investigation or trial to lodge with an appellate court an appeal against the detention order or the extension of the term of the detention on remand … . With a view to examining the appeal , there shall be convened a hearing , to which the detainee and his counsel or counsel alone shall be called . The presence of a prosecutor is obligatory at such a hearing .

The decision taken by the appellate judge is final and can not be the subject of a cassation appeal . If the appellate judge … finds procedural irregularities that do not affect the essence of the detention order , he must remedy the defects without quashing the order … . ”

Article CARDINAL § CARDINAL ( CARDINAL ) of LAW permits the accused ’s representative to have access to the case - file following the conclusion of the pre - trial investigation .

Article CARDINAL § CARDINAL ( CARDINAL ) provides that a prosecuting authority can take part in the meetings of the accused and his defence counsel and “ control ” their correspondence when it is reasonably believed that unlimited communication between the accused and his representative can have a “ negative impact on the investigation ” of the case . DATE of LAW ( Advokatūros įstatymas ) prohibits any interference with communications between the lawyer and his client save in the cases provided for by law .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant is a NORP national , who was born in DATE and lives in GPE . The President granted the applicant ’s request for his identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . He was represented before the ORG by Ms A - M. Jolly of ORG , GPE , and , subsequently , by PERSON , of Steel and PERSON , ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG office .

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

NORP The applicant ’s parents were heroin addicts . He was taken into local authority care when he was still a baby and adopted . As a young adolescent he became drug dependent and involved in offending behaviour , spending increasingly long periods of time in custody .

NORP In DATE , aged DATE , the applicant was sentenced to CARDINAL years’ detention for a series of offences . When serving this sentence , he demonstrated serious personality problems including engaging in repetitive , serious and dangerous self - harming behaviour . In a report dated DATE , Professor PERSON , a forensic psychiatrist instructed on behalf of the applicant , noted the repetitive self - harming behaviour of an “ extreme and dangerous nature ” and that he was at a “ serious risk of suicide ” . Professor PERSON diagnosed a psychopathic disorder under LAW DATE ( hereinafter “ LAW ” ) . Whilst the applicant was not yet amenable to psychotherapy , Professor PERSON recommended that he be transferred to hospital for assessment and treatment under LAW of the MHA DATE .

DATE to early DATE there was no agreement between the psychiatrists as to the applicant ’s diagnosis or treatment . Since he had spent much of his life in GPE , it was thought that any psychiatric hospital treatment would be in GPE so he was examined by Dr. PERSON , ORG for ORG ( “ ORG ” ) Trust which covered GPE .

Dr. PERSON stated in a CARDINAL - page letter dated DATE that , although the applicant had antisocial and borderline personality traits , he was not suffering from a psychopathic disorder and would not be amenable to psychotherapy . He also took the view that there was no evidence that the applicant would benefit from hospital treatment or that his condition would improve as a result . The applicant did not require pharmacological treatment therapy and was not likely to respond to psychological treatments . Indeed , the applicant ’s history had shown that his behaviour badly deteriorated in institutions , so that a transfer to hospital would likely result in his detention in a maximum security mental health setting , which Dr. PERSON was convinced would not be in the applicant ’s best interests .

ORG in later proceedings confirmed that this diagnosis meant that it was not possible to transfer the applicant to hospital for treatment under sections CARDINAL , DATE , DATE or DATE of the MHA DATE .

The applicant was released on licence on DATE .

DATE and DATE , the applicant was detained at ORG ( “ GPE YOI ” ) on remand on serious criminal charges , including robbery , and then into custody following his conviction by ORG in DATE of false imprisonment and dangerous driving .

Feltham YOI received a copy of the reports of Professor PERSON and PERSON . PERSON . The applicant was psychiatrically assessed as suitable for ORG ( “ ACCT ” ) care - planning system for prisoners at risk of self - harm . This system was designed to ensure that relevant prisoners received assessment , care , supervision and treatment commensurate with an ongoing process of risk assessment by a multi - disciplinary team trained in the LAW procedures . The ORG system could include search provisions , restrictions on possessions , provision of accommodation specially adapted to reduce risk of self - harm , as well as interaction and monitoring appropriate to the risk . The applicant was moved within GPE YOI depending on his health : the mental health in - patient ORG in GPE YOI was a restrictive place of safety for periods of acute risk and he was moved to more open environments when he improved .

The applicant displayed , it appears from the beginning , serious and dangerous self - harming behaviour at GPE YOI . An extract from his medical and prison records for DATE is demonstrative :

“ DATE : medical records state that he inserted a pin in his mouth , which he removed when he calmed down . He later put a pencil in his mouth . The prison records record that he put a broken pencil in his mouth .

DATE : the medical records state that [ the applicant ] opened an old abdominal wound ; he claimed to have inserted CARDINAL staples into it . He was taken to [ hospital ] . He also reported that he had inserted staples underneath his right eye . Wound stitched at [ hospital ] . The staples on the right side of his face were not taken out as he needed an operation , as he had inserted them through his mouth . The prison records state that he had got hold of a screw and picked off the scab on his arm and continued to screw it in his arm . The officer asked him to hand over the screw but he declined . A note timed at CARDINAL states that he continued to put staples into an open wound . At CARDINAL he was told he would go to hospital .

DATE : the medical records state that he barricaded the door with a mattress . He removed a piece of the door and used it to harm himself , deepening an existing wound on his right arm causing it to bleed . He was taken to [ hospital ] . He was refusing meals , stating that he was on hunger strike .

DATE : the medical records state that he banged his head on the cell gate . According to the prison record , at CARDINAL he was kicking the sink . When asked why , he stated that he wanted to break his foot . ”

NORP The records also show that the applicant inserted foreign bodies into his penis on multiple occasions , including a screw on DATE , forced a piece of glass into his urethra on DATE and severed the tendons of both feet on DATE . The applicant inserted dirt into his self - inflicted wounds causing repeated infections .

The applicant claims that he attempted suicide on CARDINAL occasions and threatened to commit suicide at other times . The Government denied that the applicant ever attempted suicide whilst at GPE YOI .

On DATE the applicant ’s then representatives , ORG , sent a “ letter before claim ” challenging the failure of the Secretary of ORG to provide a safe environment for the applicant . Noting that the applicant had CARDINAL surgical interventions in DATE , other serious incidences of self - harm and that he had made suicide threats , they argued that the prison was not a suitable environment for him .

Professor PERSON , instructed on the applicant ’s behalf , reported on DATE , noting that the applicant ’s behaviour had rapidly deteriorated since his return to custody . He confirmed his earlier view that the applicant ’s condition amounted to mental illness and psychopathic disorder within the meaning of the ORG DATE , so that the applicant should be urgently transferred to a hospital for treatment under section CARDINAL of that Act . He reiterated that the applicant was not yet amenable to psychotherapy .

On DATE the ORG Solicitor responded to the “ letter before claim ” of the applicant ’s representatives’ noting that the applicant was in good health , that he had self - harmed less lately , that his last visit to hospital was on DATE and that his behaviour , conduct and mood had improved allowing his transfer to a normal room . The applicant ’s representatives did not take any further action at that time .

On DATE Dr. PERSON , a ORG and the in - house psychiatrist at ORG , wrote to the Specialist Commissioner of ORG expressing concern about the applicant ’s deteriorating health and requesting his transfer to a hospital . It was the opinion of the clinical team at GPE YOI that the applicant met the criteria for antisocial and borderline personality disorder and required specialist treatment in a hospital setting . He was a prolific self - harmer , the situation having become more serious over DATE . The health services in GPE YOI considered that they could not provide adequate care for the applicant in prison and that he required a transfer to a secure centre specialising in the treatment of personality disorders . Dr. PERSON considered , contrary to Dr. PERSON , that the applicant would benefit from hospital treatment and that his history did not exclude this option , as he had only been in CARDINAL psychiatric hospital setting and that was when he was very young . Since the ORG Commissioner had indicated that she could not consider Dr. PERSON request without Dr. Williams’ view , Dr. PERSON requested Dr. PERSON to conduct another assessment .

In the meantime , PERSON a consultant psychiatrist , assessed the applicant at the request of ORG due to sentence him ( offences committed in DATE ) . His report dated DATE found that the applicant was suffering from a psychopathic disorder as defined in the MHA DATE . He concurred with Professor PERSON that the applicant was detainable and should be admitted to hospital for further assessment and treatment of his serious personality disorder . This could be achieved once a suitable placement was identified under LAW DATE or , if sentenced to imprisonment , under section CARDINAL of the MHA DATE .

Dr. PERSON re - assessed the applicant as requested in DATE . In his report of DATE he revised his earlier opinion about the applicant ’s condition and about the prospects of treatment , stating that there had been some change since he reviewed the applicant , so that he considered that a treatment trial would be worth considering ( section CARDINAL of the MHA DATE ) . However , Dr. PERSON queried whether or not the applicant was a patient for whom his Trust ( NORP ) was responsible . The applicant had indeed been born and had spent much of his life in GPE , but he had informed Dr. PERSON , during his re - assessment interview in DATE , that he had re - registered in DATE with a medical practice in GPE . Enquiries confirmed this and , as a result , the applicant ’s case had to be transferred to ORG which had , in turn , to re - assess the applicant and , if relevant , identify an appropriate and available hospital place .

On DATE Dr. PERSON followed up with another letter to the Specialist Commissioner recommending that the applicant be considered for placement in a specialist personality disorder unit . His mental health had deteriorated and his self - harming had increased whilst in prison : any delay caused by his transfer to ORG had to be kept to a minimum .

On DATE the applicant ’s representatives wrote to the ORG solicitor . They recognised that the applicant ’s behaviour was difficult and challenging and that staff at GPE were seeking to put in place , within limited resources , skills and training , as safe a regime and environment as possible , but the truth was that this was insufficient to protect the applicant ’s health and life . They enclosed a report dated DATE by Dr. PERSON , a consultant in intensive care and anesthesia , who had been instructed by the applicant to report on whether his self - harming behaviour was life - threatening . Dr. PERSON noted that staff in GPE YOI considered the severity and frequency of the applicant ’s self - harming placed him in a “ completely different category ” from virtually all other self - harmers whom they had encountered . Dr. PERSON ’s report examined the risk posed to the applicant ’s life , concluding :

“ CARDINAL.CARDINAL The nature and pattern of self - harm inflicted by [ the applicant ] are clearly disquieting to any external reviewer and indicative of an extremely disturbed mindset .

CARDINAL His current injuries and their sequelae place him at risk of renal failure due to obstruction of the urinary tract and at constant risk of life - threatening infection from necrotizing fasciitis , urinary tract sepsis , bacterial endocarditis and deep - seated pelvic infection . The risk of these complications is enhanced not only with each new additional injury but also by the multiple retained foreign bodies within the tissues which create susceptibility to colonisation by bacteria and subsequent infection from any distant source of sepsis carried around the body by the circulation .

CARDINAL He is also currently at risk of losing limbs through refractory infection and the use of his penis for normal urination and sexual function .

CARDINAL [ His ] life is also in jeopardy from exsanguination with either intentional or accidental arterial damage during further self - harm .

CARDINAL This pattern of self - injury will predictably induce a state of chronic ill - health within a short time - frame and leave [ the applicant ] more vulnerable to the above complications of his injuries . The cycle will then become self - fuelling , inevitably culminating from CARDINAL complication or another in [ the applicant ] ’s death .

CARDINAL There also appears to be a more immediate urgency in placing [ the applicant ] in the short - term within a hospital environment to ensure optimal medical and nursing management of both his abdominal wound and the urinary tract foreign bodies and strictures due to scarring , which are capable of causing acute urinary tract obstruction and severe septicaemia . Such optimal management depends very much on [ the applicant ] ’s compliance with advice and cares , and provision of appropriate psychiatric and psychological support whilst within any conventional hospital setting . The required duration of stay is not possible to calculate , [ ... ] but the endpoint should be CARDINAL of satisfactory healing of his current injuries and a greatly reduced frequency and magnitude of further self - harm with a commitment to overcoming this pattern of behaviour over the long term . The severity of the abdominal wound and urinary tract injuries , coupled with the instability of his mental health status which will predictably lead to further self - harm , would suggest that this option should be pursued within DATE rather DATE . ”

Dr. PERSON added a postscript to his report :

“ Since completion of this report , I have been informed by ORG that there has been an escalation in [ the applicant ’s ] ’s pattern of self - harm following news of his birth mother ’s death . Given the extreme vulnerability of this individual to significant life - threatening complications with the level of injury at the time of my assessment , it should be apparent that the hospital - based care specified in CARDINAL should be expedited as a matter of urgency . ”

A letter of DATE by PERSON , a specialist registrar in urology , was appended to Dr. PERSON ’s report and stated , inter alia :

“ Although there is currently no evidence of urethral stricture or bladder injury over a period of time , it is almost certain that he will develop a urethral stricture . ... If he continues to abuse his body in this way , it may lead to a poor bladder emptying which in turn can cause renal failure and death .

While currently none of [ the applicant ’s ] ’s urological incidents have been a risk to his life , it is only a matter of time until he develops sepsis , a urethral stricture , renal failure or death .

It has been the opinion of ORG here ... that something more definitive needs to be done for [ the applicant ] ’s psychological care . On each occasion that his bladder is cleared of foreign bodies , it is usually DATE or CARDINAL before he is readmitted having inserted something else ... ”

On DATE the applicant applied for leave to take judicial review proceedings to obtain an order that he be removed from GPE YOI . He cited the Secretary of ORG ( responsible for GPE YOI ) and ORG as defendants . At this point , the applicant had been hospitalised CARDINAL times in DATE .

On DATE Dr. TIME , a consultant forensic psychiatrist , advised ORG that the applicant suffered from a severely abnormal personality and reached a high diagnostic threshold for specific personality disorder types , which suggested that he might reach a threshold for psychopathic disorder classification . Given his background of frequent and severe self - harm , Dr. PERSON concluded that it was appropriate to admit the applicant for a period of in - patient assessment under LAW . He confirmed that a bed would be available at LOC hospital within DATE period to which LAW referred .

On DATE ORG made a hospital order under LAW of the MHA DATE for the applicant ’s admission to ORG . The applicant was transferred to that hospital on DATE . He then withdrew his proceedings against the Trust .

On DATE ORG refused leave to apply for judicial review . The court considered the manner in which his claims were expressed to be strikingly unhelpful . However , since he had been transferred to hospital , his representatives confirmed that the purpose of the action was now to seek an order that there be an investigation into what had occurred , including how the relevant agencies could work better , which would serve a real public interest . ORG considered this to be rather an afterthought to the principal claim . The applicant sought damages for a breach of ORG , CARDINAL and DATE of the Convention .

ORG clarified that the Secretary of ORG had no power under LAW of the MHA DATE to transfer the applicant from GPE YOI to a hospital because , unlike section CARDINAL , it did not apply to prisoners who suffered from psychopathic disorders .

The High Court considered that LAW had not been engaged . While according to Dr. PERSON ’s bleak summary , the applicant would undoubtedly put his life at risk if he continued to self - harm in the way that he had , his life was not imminently at risk . Nor was it a case of a “ near - death experience ” such as a failed suicide attempt .

Likewise , there was no arguable breach of LAW by the Secretary of ORG and therefore no duty to hold an inquiry . ORG remarked that the Secretary of ORG had accepted the version of events advanced by the applicant . This , supplemented by the many reports done and the records which could still be produced from GPE YOI and the hospital , meant that there could be no doubt about the facts . There was no suggestion in the documents that the applicant ’s injuries had not been promptly and skilfully treated or , indeed , that it was detention at GPE YOI which had caused the applicant to harm himself . Had the applicant wished to complain about his treatment in detention , he could have complained under ORG and onward to ORG , who could have conducted an independent inquiry . The wider “ lessons learned ” objective of the action fell outside the scope of LAW v. GPE ( no . CARDINAL/CARDINAL ( dec . ) DATE ) .

NORP In DATE ORG granted leave to appeal limited to the claim that the Secretary of ORG should hold an inquiry . By judgment of DATE ORG accorded leave to apply for judicial review but dismissed the substantive application . The applicant had confirmed to his representatives that he wanted an explanation about his treatment in GPE YOI and that an inquiry would have a wider public benefit . His representatives made a statement to the court that they were concerned about the treatment and conditions experienced by the applicant and other prisoners .

As regards the LAW complaint , ORG considered :

“ CARDINAL . This case is not a case of attempted suicide . [ The applicant ] did not attempt suicide . The medical evidence was that his self - harming , if continued , could lead to life - threatening injury or disease . His medical condition , and his actions , can not in my judgment be assimilated to cases of suicide and near suicide . It can not be said that there was a ‘ real and immediate ORG to [ the applicant ’s ] life while he was at GPE . The risk was real but not immediate . ”

It clarified that serious injury , in the absence of a risk to life , could not give rise to any relevant duty by virtue of LAW . There was , therefore , no necessity under LAW to conduct an inquiry .

ORG also found that no Article CARDINAL investigative duty could be imposed on the Secretary of ORG for CARDINAL main reasons . In the first place , it agreed with ORG that there was no evidence of an “ arguable breach ” or of a “ credible assertion ” of a breach of LAW Secondly , the exclusion of psychopathic disorders from section DATE , which precluded the applicant ’s transfer to hospital under that provision , was not the proper subject of an LAW inquiry . Thirdly , even if there had been an arguable breach of LAW , there could be no investigative duty because all the relevant facts in the case were known .

NORP In particular , the only complaint that could be made was that :

“ CARDINAL . ... [ the applicant ] should have been transferred to a psychiatric hospital earlier . But , as I have pointed out , in not doing so , the Secretary of ORG was acting in accordance with Dr Williams’ medical opinion . The action or inaction of the executive based on medical advice of an appropriately qualified doctor , as PERSON was , can not amount to a breach of LAW . Once Dr PERSON had changed his opinion , steps were taken to transfer [ the applicant ] to a hospital , but any delay then was attributable to ORG and the need to meet the requirements of section CARDINAL ... ”

As to whether an inquiry was needed , ORG considered the applicant ’s case remarkably similar to the above - cited case of PERSON v. GPE ( cited above ) . The allegations of a breach of LAW could be dealt with by the combination of criminal ( if relevant ) and civil proceedings . Any wider interest inquiry ( including to publicise the alleged lack of appropriate care for persons such as the applicant in a ORG such as GPE ) was a matter for public and political debate which fell outside the scope of LAW .

In any event , ORG saw no need for an investigation :

“ In the present case , I see no need for an investigation . The facts relating to [ the applicant ] ’s detention in GPE and the reasons why he was only transferred after Dr Williams’ re - assessment are known . [ The applicant ’s Counsel ] was pressed to identify what an inquiry might reveal that was not already known . In my judgment , he was unable satisfactorily to do so . The summary of the applicant ’s case , set out in the Addendum to his FAC , does not include a formulated allegation of breach beyond the assertion that the Secretary of ORG was in breach of her protective obligation . ”

In conclusion , the ORG of appeal summarised its findings :

“ DATE . Article CARDINAL was not engaged in this case , where there was no immediate risk to [ the NORP rights inquiry has significant resource implications , a matter of growing concern when the resources of public authorities are increasingly constrained . Good reason for an LAW inquiry must be shown . In the present case , all the relevant facts are known : why [ the applicant ] was kept at GPE and not transferred until after PERSON had re - assessed him and why there was some delay thereafter . ”

On DATE that court refused leave to appeal .

On DATE Dr. PERSON submitted a psychiatric report to ORG in which he indicated that the applicant ’s level of self - harm was “ markedly better ” than when he was in GPE YOI . In DATE the applicant was being treated in a secure psychiatric unit . On DATE he was assessed as being suitable for admission to ORG .

Sections CARDINAL and CARDINAL of the MHA DATE , as in force at the relevant time , provided that a court may , after convicting a defendant , make an order or an interim order that the individual be treated in hospital instead of sentencing him to a term of imprisonment .

“ CARDINAL . – Powers of courts to order hospital admission ...

( CARDINAL ) Where a person is convicted before ORG of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law , or is convicted by a GPE court of an offence punishable on summary conviction with imprisonment , and the conditions mentioned in subsection ( CARDINAL ) below are satisfied , the court may by order authorise his admission to and detention in such hospital as may be specified in the order ...

( CARDINAL ) The conditions referred to in subsection ( CARDINAL ) above are that-

( a ) the court is satisfied , on the written or oral evidence of CARDINAL registered medical practitioners , that the offender is suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment and that either-

( i ) the mental disorder from which the offender 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 ; or

( ii ) in the case of an offender who has attained DATE , the mental disorder is of a nature or degree which warrants his reception into guardianship under this LAW ; and

( b ) the court is of the opinion , having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender , and to the other available methods of dealing with him , that the most suitable method of disposing of the case is by means of an order under this section ...

( CARDINAL ) An order for the admission of an offender to a hospital ( in this LAW referred to as ‘ a hospital ORG ) shall not be made under this section unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital in the event of such an order being made by the court , and for his admission to it within the period of DATE beginning with the date of the making of such an order ; and the court may , pending his admission within that period , give such directions as it thinks fit for his conveyance to and detention in a place of safety .

- Interim hospital orders

( CARDINAL ) Where a person is convicted before ORG of an offence punishable with imprisonment ( other than an offence the sentence for which is fixed by law ) or is convicted by a GPE court of an offence punishable on summary conviction with imprisonment and the court before or by which he is convicted is satisfied , on the written or oral evidence of CARDINAL registered medical practitioners-

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

( b ) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case ,

the court may , before making a hospital order or dealing with him in some other way , make an order ( in this LAW referred to as an “ interim hospital order ” ) authorising his admission to such hospital as may be specified in the order and his detention there in accordance with this section .

( CARDINAL ) An interim hospital order-

( a ) shall be in force for such period , not exceeding DATE , as the court may specify when making the order ; but

( b ) may be renewed for further periods of not DATE at a time if it appears to the court , on the written or oral evidence of the responsible medical officer , that the continuation of the order is warranted ;

but no such order shall continue in force for DATE in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides after considering the written or oral evidence of the responsible medical officer to deal with the offender in some other way . ”

Sections DATE and CARDINAL of the ORG DATE empower the Secretary of ORG to direct that an individual who is serving a sentence of imprisonment , or who is on remand , be removed to , and detained at , a hospital :

“ DATE . Removal to hospital of persons serving sentences of imprisonment , etc .

( CARDINAL ) If in the case of a person serving a sentence of imprisonment the Secretary of ORG is satisfied , by reports from CARDINAL registered medical 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 that 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 so to do , by warrant direct that that person be removed to and detained in such hospital ( not being a mental nursing home ) as may be specified in the direction ; and a direction under this section shall be known as " a transfer direction "

( CARDINAL ) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case .

( CARDINAL ) References in this Part of this LAW to a person serving a sentence of imprisonment include references-

( a ) to a person detained in pursuance of any sentence or order for detention made by a court in criminal proceedings ( other than an order under any enactment to which section DATE above applies ) ; ...

Removal to hospital of other prisoners .

( CARDINAL ) If in the case of a person to whom this section applies the Secretary of ORG is satisfied by the same reports as are required for the purposes of section CARDINAL above that that person is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and that he is in urgent need of such treatment , the Secretary of ORG shall have the same power of giving a transfer direction in respect of him under that section as if he were serving a sentence of imprisonment .

( CARDINAL ) This section applies to the following persons , that is to say-

( a ) persons detained in a prison or remand centre , not being persons serving a sentence of imprisonment or persons falling within the following paragraphs of this subsection ;

( b ) persons remanded in custody by a GPE court ; ...

( CARDINAL ) Subsections ( CARDINAL ) to ( CARDINAL ) of section CARDINAL above shall apply for the purposes of this section and of any transfer direction given by virtue of this section as they apply for the purposes of that section and of any transfer direction under that section . ”

Following the enactment of LAW DATE , section CARDINAL of the MHA DATE has been amended to permit the power to apply to “ persons suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment ” .

Young Offender Institutions ( “ YOI ” ) form part of the juvenile secure estate in GPE . YOIs are managed by the prison service and hold young offenders DATE . There are some differences between YOI and adult prison regimes : the ORG has a better staff / offender ratio ; TIME of education per week ; and its overall objectives are helping the detainee improve behaviour , develop practical skills and prepare for employment .

A prisoner can make a complaint about treatment whilst in detention under LAW ( “ the DATE Rules ” ) . He may complain , initially , to for example , a member of staff or to ORG ; he can also make a formal written complaint under LAW ) ; and any prisoner can complain about his treatment in detention to ORG .

A prisoner can also bring a civil action about treatment in prison . Under the common law , the prison authorities owe a duty to take reasonable care for the safety of those in custody and , in particular , to take reasonable care to prevent a prisoner from taking his own life or harming himself deliberately , irrespective of whether the prisoner is mentally disordered or of sound mind ( Commissioners of Police for Metropolis v PERSON ( ORG of Estate of PERSON , DATE ) [ DATE ] ORG CARDINAL ) . A medical practitioner also owes a duty of care to a person that he or she treats or assesses and that liability may arise if the standard of care falls below the standard to be expected of that practitioner in accordance with a reasonable body of medical opinion ( ORG [ DATE ] CARDINAL All ER CARDINAL ; and ORG [ DATE ] AC CARDINAL ) .

If the prisoner can prove that his conditions of confinement have caused him injury , physical or psychiatric , resulting from the alleged negligence , he may claim damages for any damage suffered . He may even claim exemplary damages in the event of oppressive , arbitrary or unconstitutional action by the servants of the government .