CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM

Violation of Art. 8;Violation of Art. 12;No separate issue under Art. 14;No violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

NORP The applicant is a GPE citizen born in DATE and is a post - operative male to female transsexual .

The applicant had a tendency to dress as a woman from early childhood and underwent aversion therapy in DATE . In DATE , she was diagnosed as a transsexual . Though she married a woman and they had CARDINAL children , her conviction was that her “ brain sex ” did not fit her body . From that time until DATE she dressed as a man for work but as a woman in her free time . In DATE , the applicant began treatment in earnest , attending appointments once DATE at ORG at ORG , which included regular consultations with a psychiatrist as well as on occasion a psychologist . She was prescribed hormone therapy , began attending grooming classes and voice training . Since this time , she has lived fully as a woman . In DATE , she underwent surgery to shorten her vocal chords . In DATE , she was accepted on the waiting list for gender re - assignment surgery . In DATE , she underwent gender re - assignment surgery at a ORG hospital . Her treatment and surgery was provided for and paid for by ORG .

The applicant divorced from her former wife on a date unspecified but continued to enjoy the love and support of her children .

The applicant claims that DATE she was sexually harassed by colleagues at work . She attempted to pursue a case of sexual harassment in ORG but claimed that she was unsuccessful because she was considered in law to be a man . She did not challenge this decision by appealing to ORG . The applicant was subsequently dismissed from her employment for reasons connected with her health , but alleges that the real reason was that she was a transsexual .

In DATE , the applicant started work with a new employer and was required to provide her ORG ( “ NI ” ) number . She was concerned that the new employer would be in a position to trace her details as once in the possession of the number it would have been possible to find out about her previous employers and obtain information from them . Although she requested the allocation of a new ORG number from ORG ( “ ORG ” ) , this was rejected and she eventually gave the new employer her NI number . The applicant claims that the new employer has now traced back her identity as she began experiencing problems at work . Colleagues stopped speaking to her and she was told that everyone was talking about her behind her back .

The DSS Contributions Agency informed the applicant that she would be ineligible for a State pension at DATE , the age of entitlement for women in GPE . In DATE , the ORG informed the applicant that her pension contributions would have to be continued until DATE at which she reached DATE , being the age of entitlement for men , namely DATE . On DATE , she therefore entered into an undertaking with the ORG to pay direct the ORG contributions which would otherwise be deducted by her employer as for all male employees . In the light of this undertaking , on DATE , ORG issued the applicant with a Form CF CARDINAL Age Exemption Certificate ( see Relevant domestic law and practice below ) .

The applicant 's files at the ORG were marked “ sensitive ” to ensure that only an employee of a particular grade had access to her files . This meant in practice that the applicant had to make special appointments for even the most trivial matters and could not deal directly with the local office or deal with queries over the telephone . Her record continues to state her sex as male and despite the “ special procedures ” she has received letters from the ORG addressed to the male name which she was given at birth .

In a number of instances , the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate . In particular , she has not followed through a loan conditional upon life insurance , a re - mortgage offer and an entitlement to DATE fuel allowance from the ORG . Similarly , the applicant remains obliged to pay the higher motor insurance premiums applicable to men . Nor did she feel able to report a theft of MONEY to the police , for fear that the investigation would require her to reveal her identity .

Under LANGUAGE law , a person is entitled to adopt such first names or surname as he or she wishes . Such names are valid for the purposes of identification and may be used in passports , driving licences , medical and insurance cards , etc . The new names are also entered on the electoral roll .

Under LANGUAGE law , marriage is defined as the voluntary union between a man and a woman . In the case of PERSON v. PERSON ( [ DATE ] Probate Reports CARDINAL ) , Mr Justice PERSON ruled that sex for that purpose is to be determined by the application of chromosomal , gonadal and genital tests where these are congruent and without regard to any surgical intervention . This use of biological criteria to determine sex was approved by ORG in NORP v. PERSON ( [ DATE ] ORG ) and given more general application , the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution , notwithstanding the fact that the accused had undergone gender reassignment therapy .

Under section CARDINAL(b ) of LAW DATE , any marriage where the parties are not respectively male and female is void . The test applied as to the sex of the partners to a marriage is that laid down in the above - mentioned case of PERSON v. PERSON . According to that same decision a marriage between a male - to - female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse ( obiter per Mr Justice PERSON ) .

This decision was reinforced by LAW ) of LAW DATE , according to which a marriage that has not been consummated owing to the incapacity of either party to consummate may be voidable . Section CARDINAL ) of the LAW provides that the court must not grant a decree of nullity if it is satisfied that the petitioner knew the marriage was voidable , but led the respondent to believe that she would not seek a decree of nullity , and that it would be unjust to grant the decree .

Registration of births is governed by ORG “ the DATE LAW ) . LAW of that LAW requires that the birth of every child be registered by ORG for the area in which the child is born . An entry is regarded as a record of the facts at the time of birth . A birth certificate accordingly constitutes a document revealing not current identity but historical facts .

NORP The sex of the child must be entered on the birth certificate . The criteria for determining the sex of a child at birth are not defined in the LAW . The practice of the Registrar is to use exclusively the biological criteria ( chromosomal , gonadal and genital ) as laid down by Mr Justice PERSON in the above - mentioned case of PERSON v. PERSON .

The DATE LAW provides for the correction by the Registrar of clerical errors or factual errors . The official position is that an amendment may only be made if the error occurred when the birth was registered . The fact that it may become evident later in a person 's life that his or her “ psychological ” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error . Only in cases where the apparent and genital sex of a child was wrongly identified , or where the biological criteria were not congruent , can a change in the initial entry be made . It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect . No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex .

The Government point out that the use of a birth certificate for identification purposes is discouraged by ORG , and for DATE birth certificates have contained a warning that they are not evidence of the identity of the person presenting it . However , it is a matter for individuals whether to follow this recommendation .

A transsexual continues to be recorded for social security , national insurance and employment purposes as being of the sex recorded at birth .

The ORG registers every NORP citizen for ORG purposes ( “ NI ” ) on the basis of the information in their birth certificate . Non - NORP citizens who wish to register for NI in GPE may use their passport or identification card as evidence of identity if a birth certificate is unavailable .

The ORG allocates every person registered for NI with a unique ORG number . The NI number has a standard format consisting of CARDINAL letters followed by CARDINAL pairs of numbers and a further letter . It contains no indication in itself of the holder 's sex or of any other personal information . The NI number is used to identify each person with a NI account ( there are at present CARDINAL individual NI accounts ) . The ORG are thereby able to record details of all NI contributions paid into the account during the ORG account holder 's life and to monitor each person 's liabilities , contributions and entitlement to benefits accurately . New numbers may in exceptional cases be issued to persons e.g. under the witness protection schemes or to protect the identity of child offenders .

Under LAW of ORG ( Contributions ) Regulations DATE , made under powers conferred by paragraph CARDINAL(CARDINAL)(p ) of Schedule CARDINAL to ORG DATE , specified individuals are placed under an obligation to apply for a NI number unless one has already been allocated to them .

Under LAW of LAW , an employee is under an obligation to supply his NI number to his employer on request .

Section CARDINAL(CARDINAL ) of ORG DATE provides :

“ ( CARDINAL ) If a person for the purpose of obtaining any benefit or other payment under the legislation ... [ as defined in LAW ] ... whether for himself or some other person , or for any other purpose connected with that legislation -

( a ) makes a statement or representation which he knows to be false ; or

( b ) produces or furnishes , or knowingly causes or knowingly allows to be produced or furnished , any document or information which he knows to be false in a material particular , he shall be guilty of an offence . ”

It would therefore be an offence under this section for any person to make a false statement in order to obtain a NI number .

Any person may adopt such first name , surname or style of address ( e.g. Mr , PERSON , Miss , PERSON ) that he or she wishes for the purposes of the name used for NI registration . The ORG will record any such amendments on the person 's computer records , manual records and NI number card . But , the ORG operates a policy of only issuing CARDINAL NI number for each person regardless of any changes that occur to that person 's sexual identity through procedures such as gender re - assignment surgery . A renewed application for leave to apply for judicial review of the legality of this policy brought by a male - to - female transsexual was dismissed by ORG in the case of NORP v. Secretary of ORG ex parte Hooker ( DATE ) ( unreported ) . PERSON giving the judgment of the ORG stated ( at page CARDINAL of the transcript ) :

“ ... since it will not make the slightest practical difference , far from the Secretary of ORG 's decision being an irrational one , I consider it a perfectly rational decision . I would further reject the suggestion that the applicant had a legitimate expectation that a new number would be given to her for psychological purposes when , in fact , its practical effect would be nil . ”

Information held in the DSS NI records is confidential and will not normally be disclosed to third parties without the consent of the person concerned . Exceptions are possible in cases where the public interest is at stake or the disclosure is necessary to protect public funds . By virtue of LAW of ORG DATE , it is an offence for any person employed in social security administration to disclose without lawful authority information acquired in the course of his or her employment .

The ORG operates a policy of normally marking records belonging to persons known to be transsexual as nationally sensitive . Access to these records is controlled by ORG management . Any computer printer output from these records will normally be referred to a special section within the ORG to ensure that identity details conform with those requested by the relevant person .

NI contributions are made by way of deduction from an employee 's pay by the employer and then by payment to ORG ( for onward transmission to the ORG ) . Employers at present will make such deductions for a female employee until she reaches the pensionable age of DATE and for a male employee until he reaches the pensionable age of DATE . The ORG operates a policy for male - to - female transsexuals whereby they may enter into an undertaking with the ORG to pay direct to the ORG any NI contributions due after the transsexual has reached DATE which have ceased to be deducted by the employer in the belief that the employee is female . In the case of female - to - male transsexuals , any deductions which are made by an employer after DATE may be reclaimed directly from the ORG by the employee .

In some cases employers will require proof that an apparent female employee has reached , or is about to reach , DATE and so entitled not to have the ORG deductions made . Such proof may be provided in the form of ORG ( form CACARDINAL or ORG ) . The ORG may issue such a certificate to a male - to - female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the ORG .

A male - to - female transsexual is currently entitled to a ORG pension at the retirement DATE applied to men and not DATE which is applicable to women . A full pension will be payable only if she has made contributions for DATE as opposed to DATE required of women .

NORP A person 's sex for the purposes of pensionable age is determined according to biological sex at birth . This approach was approved by the Social Security Commissioner ( a judicial officer , who specialises in social security law ) in a number of cases :

In the case entitled R(P ) CARDINAL , a male - to - female transsexual claimed entitlement to a pensionable age of CARDINAL . The Commissioner dismissed the claimant 's appeal and stated at paragraph CARDINAL of his decision :

“ ( a ) In my view , the word “ woman ” in section CARDINAL of the LAW means a person who is biologically a woman . Sections CARDINAL and CARDINAL contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband . That can only be a person who is biologically a woman .

( b ) I doubt whether the distinction between a person who is biologically , and one who is socially , female has ever been present in the minds of the legislators when enacting relevant statutes . However that may be , it is certain that ORG has never conferred on any person the right or privilege of changing the basis of his national insurance rights from those appropriate to a man to those appropriate to a woman . In my judgment , such a fundamental right or privilege would have to be expressly granted . ...

( d ) I fully appreciate the unfortunate predicament of the claimant , but the merits are not all on her side . She lived as a man from birth until DATE , and , during the part of that period when she was adult , her insurance rights were those appropriate to a man . These rights are in some respects more extensive than those appropriate to a woman . Accordingly , an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman . ”

The Government have instituted plans to eradicate the difference between men and women concerning age of entitlement to ORG pensions . Equalisation of the pension age is to begin in DATE and it is anticipated that by DATE the transition will be complete . As regards the issue of free bus passes in GPE , which also differentiated between men and women concerning age of eligibility ( CARDINAL and CARDINAL respectively ) , the Government have also announced plans to introduce a uniform age .

Under section CARDINAL(CARDINAL ) of the Theft Act DATE , it is a criminal offence liable to a sentence of imprisonment to dishonestly obtain a pecuniary advantage by deception . Pecuniary advantage includes , under section CARDINAL ) , being given the opportunity to earn remuneration in employment . Should a post - operative transsexual be asked by a prospective employer to disclose all their previous names , but fail to make full disclosure before entering into a contract of employment , an offence might be committed . Furthermore , should the employer discover the lack of full disclosure , there might also be a risk of dismissal or an action by the employer for damages .

In its judgment of DATE , in the case of PERSON and ORG , ORG ( ECJ ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and , accordingly , LAW DATE on the implementation of the principle of equal treatment for men and women as regards access to employment , vocational training and promotion and working conditions , precluded dismissal of a transsexual for a reason related to a gender reassignment . The ECJ held , rejecting the argument of ORG that the employer would also have dismissed PERSON if PERSON had previously been a woman and had undergone an operation to become a man , that

“ ... where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment , he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment .

To tolerate such discrimination would be tantamount , as regards such a person , to a failure to respect the dignity and freedom to which he or she is entitled and which the ORG has a duty to safeguard . ” ( paragraphs CARDINAL–CARDINAL )

The ruling of the ECJ was applied by ORG in a decision handed down on DATE ( ORG v. PERSON [ DATE ] CARDINAL Industrial Law Reports ) .

The Sexual Discrimination ( Gender Re - assignment ) Regulations DATE were issued to comply with the ruling of ORG in PERSON and ORG ( DATE ) . This provides generally that transsexual persons should not be treated less favourably in employment because they are transsexual ( whether pre- or post - operative ) .

Prior to DATE , for the purposes of the law of rape , a male - to - female transsexual would have been regarded as a male . Pursuant to section CARDINAL of ORG , for rape to be established there has to be “ vaginal or anal intercourse with a person ” . In a judgment of DATE , the Reading ORG found that penile penetration of a male to female transsexual 's artificially constructed vagina amounted to rape : NORP v. PERSON ( unreported ) .

Prison rules require that male and female prisoners shall normally be detained separately and also that no prisoner shall be stripped and searched in the sight of a person of the opposite sex ( Rules CARDINAL(CARDINAL ) and CARDINAL ) of the Prison Rules DATE respectively ) .

According to the Report of ORG DATE , see further below , paragraphs CARDINAL ) , which conducted a review of law and practice , post - operative transsexuals where possible were allocated to an establishment for prisoners of their new gender . Detailed guidelines concerning the searching of transsexual prisoners were under consideration by which post - operative male to female transsexuals would be treated as women for the purposes of searches and searched only by women ( see paragraphs PERCENT ) .

DATE . On DATE , the Secretary of ORG for ORG announced the establishment of an ORG on Transsexual People with the following terms of reference :

“ to consider , with particular reference to birth certificates , the need for appropriate legal measures to address the problems experienced by transsexuals , having due regard to scientific and societal developments , and measures undertaken in other countries to deal with this issue . ”

ORG produced a report in DATE in which it examined the current position of transsexuals in GPE , with particular reference to their status under national law and the changes which might be made . It concluded :

“ CARDINAL . Transsexual people deal with their condition in different ways . Some live in the opposite sex without any treatment to acquire its physical attributes . Others take hormones so as to obtain some of the secondary characteristics of their chosen sex . A smaller number will undergo surgical procedures to make their bodies resemble , so far as possible , those of their acquired gender . The extent of treatment may be determined by individual choice , or by other factors such as health or financial resources . Many people revert to their biological sex after living for some time in the opposite sex , and some alternate between the CARDINAL sexes throughout their lives . Consideration of the way forward must therefore take into account the needs of people at these different stages of change .

Measures have already been taken in a number of areas to assist transsexual people . For example , discrimination in employment against people on the basis of their transsexuality has been prohibited by ORG Regulations DATE which , with few exceptions , provide that a transsexual person ( whether pre- or post - operative ) should not be treated less favourably because they are transsexual . The criminal justice system ( i.e. the police , prisons , courts , etc . ) try to accommodate the needs of transsexual people so far as is possible within operational constraints . A transsexual offender will normally be charged in their acquired gender , and a post - operative prisoner will usually be sent to a prison appropriate to their new status . Transsexual victims and witnesses will , in most circumstances , similarly be treated as belonging to their acquired gender .

In addition , official documents will often be issued in the acquired gender where the issue is identifying the individual rather than legal status . Thus , a transsexual person may obtain a passport , driving licence , medical card etc , in their new gender . We understand that many non - governmental bodies , such as examination authorities , will often re - issue examination certificates etc . ( or otherwise provide evidence of qualifications ) showing the required gender . We also found that CARDINAL insurance company will issue policies to transsexual people in their acquired gender .

Notwithstanding such provisions , transsexual people are conscious of certain problems which do not have to be faced by the majority of the population . Submissions to the ORG suggested that the principal areas where the transsexual community is seeking change are birth certificates , the right to marry and full recognition of their new gender for all legal purposes .

We have identified CARDINAL options for the future ;

– to leave the current situation unchanged ;

– to issue birth certificates showing the new name and , possibly , the new gender ;

– to grant full legal recognition of the new gender subject to certain criteria and procedures .

We suggest that before taking a view on these options the Government may wish to put the issues out to public consultation . ”

The report was presented to ORG in DATE . Copies were placed in the libraries of both ORG and sent to CARDINAL recipients , including ORG members , ORG officials , Members of ORG , individuals and organisations . It was publicised by a ORG press notice and made available to members of the public through application to ORG in writing , E - mail , by telephone or ORG web site .

In the case of PERSON v. PERSON , EWCA Civ CARDINAL [ CARDINAL ] , CARDINAL FCR CARDINAL , the appellant who had been classified at birth as a man had undergone gender re - assignment surgery and in DATE had gone through a form of marriage with a man who was aware of her background . She sought a declaration under LAW DATE that the marriage was valid . ORG held , by a majority , that the appellant 's marriage was invalid as the parties were not respectively male and female , which terms were to be determined by biological criteria as set out in the decision of PERSON v. PERSON [ DATE ] . Although it was noted that there was an increasing emphasis upon the impact of psychological factors on gender , there was no clear point at which such factors could be said to have effected a change of gender . A person correctly registered as male at birth , who had undergone gender reassignment surgery and was now living as a woman was biologically a male and therefore could not be defined as female for the purposes of marriage . It was for ORG , not for the courts , to decide at what point it would be appropriate to recognise that a person who had been assigned to CARDINAL sex at birth had changed gender for the purposes of marriage . Dame PERSON , President of ORG noted the warnings of ORG about continued lack of response to the situation of transsexuals and observed that largely as a result of these criticisms an interdepartmental working group had been set up , which had in DATE issued a careful and comprehensive review of the medical condition , current practice in other countries and the state of LANGUAGE law in relevant aspects of the life of an individual :

“ [ CARDINAL . ] ... We inquired of PERSON on behalf of the Attorney - General , what steps were being taken by any government department , to take forward any of the recommendations of the ORG , or to prepare a consultation paper for public discussion .

[ CARDINAL . ] To our dismay , we were informed that no steps whatsoever have been , or to the knowledge of PERSON , were intended to be , taken to carry this matter forward . It appears , therefore , that the commissioning and completion of the report is the sum of the activity on the problems identified both by the Home Secretary in his terms of reference , and by the conclusions of the members of the working group . That would seem to us to be a failure to recognise the increasing concerns and changing attitudes across western LOC which have been set out so clearly and strongly in judgments of Members of ORG at GPE , and which in our view need to be addressed by the GPE ...

[ CARDINAL . ] We would add however , with the strictures of ORG well in mind , that there is no doubt that the profoundly unsatisfactory nature of the present position and the plight of transsexuals requires careful consideration . The recommendation of the interdepartmental working group for public consultation merits action by the government departments involved in these issues . The problems will not go away and may well come again before ORG sooner rather than later . ”

In his dissenting judgment , Lord Justice PERSON considered that the foundations of the judgment in PERSON v. PERSON were no longer secure , taking the view that an approach restricted to biological criteria was no longer permissible in the light of scientific , medical and social change .

“ [ CARDINAL . ] To make the chromosomal factor conclusive , or even dominant , seems to me particularly questionable in the context of marriage . For it is an invisible feature of an individual , incapable of perception or registration other than by scientific test . It makes no contribution to the physiological or psychological self . Indeed in the context of the institution of marriage as it is DATE it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seem right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth ...

[ CARDINAL . ] The present claim lies most evidently in the territory of the family justice system . That system must always be sufficiently flexible to accommodate social change . It must also be humane and swift to recognise the right to human dignity and to freedom of choice in the individual 's private life . CARDINAL of the objectives of statute law reform in this field must be to ensure that the law reacts to and reflects social change . That must also be an objective of the judges in this field in the construction of existing statutory provisions . I am strongly of the opinion that there are not sufficiently compelling reasons , having regard to the interests of others affected or , more relevantly , the interests of society as a whole , to deny this appellant legal recognition of her marriage . I would have allowed this appeal . ”

He also noted the lack of progress in domestic reforms :

“ [ CARDINAL . ] ... although the [ interdepartmental ] report has been made available by publication , PERSON said that there has since been no public consultation . Furthermore when asked whether the ORG had any present intention of initiating public consultation or any other process in preparation for a parliamentary PERSON , PERSON said that he had no instructions . Nor did he have any instructions as to whether the ORG intended to legislate . My experience over DATE suggests how hard it is for any department to gain a slot for family law reform by primary legislation . These circumstances reinforce my view that it is not only open to the court but it is its duty to construe s CARDINAL(c ) either strictly , alternatively liberally as the evidence and the submissions in this case justify . ”

In DATE , the Government presented to ORG the document “ Civil Registration : Vital Change ( Birth , Marriage and Death Registration in DATE ) ” which set out plans for creating a central database of registration records which moves away from a traditional snapshot of life events towards the concept of a living record or single “ through life ” record :

“ In time , updating the information in a birth record will mean that changes to a person 's names , and potentially , sex will be able to be recorded . ” ( para . CARDINAL )

“ CARDINAL.CARDINAL Making changes

There is strong support for some relaxation to the rules that govern corrections to the records . Currently , once a record has been created , the only corrections that can be made are where it can be shown that an error was made at the time of registration and that this can be established . Correcting even the simplest spelling error requires formal procedures and the examination of appropriate evidence . The final records contains the full original and corrected information which is shown on subsequently issued certificates . The Government recognises that this can act as a disincentive . In future , changes ( to reflect developments after the original record was made ) will be made and formally recorded . Documents issued from the records will contain only the information as amended , though all the information will be retained . ... ”

Liberty updated the written observations submitted in the case of GPE and GPE concerning the legal recognition of transsexuals in comparative law ( GPE and GPE v. the GPE judgment of DATE , Reports of Judgments and Decisions LOC , p. DATE , § CARDINAL ) . In its DATE study , it had found that over DATE there had been an unmistakable trend in the member ORG towards giving full legal recognition to gender re - assignment . In particular , it noted that out of CARDINAL countries analysed CARDINAL ( including GPE ) did not permit a change to be made to a person 's birth certificate in CARDINAL form or another to reflect the re - assigned sex of that person . In cases where gender re - assignment was legal and publicly funded , only GPE and GPE did not give full legal recognition to the new gender identity .

In its follow up study submitted on DATE , ORG noted that while there had not been a statistical increase in GPE giving full legal recognition of gender re - assignment within LOC , information from outside LOC showed developments in this direction . For example , there had been statutory recognition of gender re - assignment in GPE , and a similar pattern of recognition in GPE , GPE , GPE , GPE , GPE and all except CARDINAL of GPE . It cited in particular the cases of Attorney - General v. Otahuhu Family Court [ DATE ] CARDINAL NZLR CARDINAL and PERSON [ DATE ] FamCA CARDINAL where in GPE and GPE transsexual persons ' assigned sex was recognised for the purposes of validating their marriages : In the latter case , Mr Justice PERSON held :

“ I see no basis in legal principle or policy why NORP law should follow the decision in PERSON . To do so would , I think , create indefensible inconsistencies between NORP marriage law and other NORP laws . It would take the law in a direction that is generally contrary to development in other countries . It would perpetuate a view that flies in the face of current medical understanding and practice . Most of all , it would impose indefensible suffering on people who have already had more than their share of difficulty , with no benefit to society ...

... Because the words ' man ' and ' woman ' have their ordinary contemporary meaning , there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage . That is , it can not be said as a matter of law that the question in a particular case will be determined by applying a single criterion , or limited list of criteria . Thus it is wrong to say that a person 's sex depends on any single factor , such as chromosomes or genital sex ; or some limited range of factors , such as the state of the person 's gonads , chromosomes or genitals ( whether at birth or at some other time ) . Similarly , it would be wrong in law to say that the question can be resolved by reference solely to the person 's psychological state , or by identifying the person 's ' brain sex ' .

To determine a person 's sex for the law of marriage , all relevant matters need to be considered . I do not seek to state a complete list or suggest that any factors necessarily have more importance than others . However the relevant matters include , in my opinion , the person 's biological and physical characteristics at birth ( including gonads , genitals and chromosomes ) ; the person 's life experiences , including the sex in which he or she was brought up and the person 's attitude to it ; the person 's self - perception as a man or a woman ; the extent to which the person has functioned in society as a man or a woman ; any hormonal , surgical or other medical sex re - assignment treatments the person has undergone , and the consequences of such treatment ; and the person 's biological , psychological and physical characteristics at the time of the marriage ...

For the purpose of ascertaining the validity of a marriage under NORP law the question whether a person is a man or a woman is to be determined as of the date of marriage ... ”

As regarded the eligibility of post - operative transsexuals to marry a person of sex opposite to their acquired gender , ORG 's survey indicated that PERCENT of ORG permitted such marriage ( Annex CARDINAL listed GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) , while PERCENT did not ( GPE and GPE did not permit marriage , while no legislation existed in GPE , GPE , GPE and GPE ) . The legal position in the remaining PERCENT was unclear .

DATE , signed on DATE , provides :

“ The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights . ”


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants live in GPE , except for the fourth applicant who lives in GPE .

The PERSON , originally named “ Monument to the Liberators of GPE ” , was unveiled on DATE , on the third anniversary of the entry of ORG into GPE . It was erected in GPE , central GPE , above a small burial site of NORP soldiers’ remains reburied in DATE . The monument consisted of a statue of a soldier in a Second World War - era Red Army military uniform set against a stone background .

From DATE onwards demands for the removal or relocation of the Bronze Soldier intensified . Also , on DATE ( the anniversary of the entry of ORG into GPE in DATE ) and CARDINAL May ( DATE in the Second World War ) , crowds of mainly NORP speakers , including veterans and younger people , gathered at the monument . DATE in particular , there began to be instances of confrontation in the vicinity of the monument , which the police were able to keep under control . On some occasions the monument was smeared with paint .

NORP In DATE the Protection of War Graves Act ( Sõjahaudade kaitse seadus ) was enacted by the Riigikogu ( ORG ) and provided for the reburial of remains and relocation of monuments in cases where war graves were located at unsuitable sites . The Bronze Soldier was a prominent issue in the electoral campaign ahead of the parliamentary elections on DATE .

During TIME DATE the monument ’s defenders were removed by police from the square where FAC was located , and the area was cordoned off . A large tent structure was erected over the monument and the graves in preparation for the exhumation of the remains of the NORP soldiers . By TIME of CARDINAL DATE a large group of people , mostly NORP speakers , had gathered at GPE and expressed their discontent with the Government ’s actions . Shouting “ Shame ! ” and “ NORP ! ” they refused to comply with police orders and some attempted to break through the police cordon . The group turned more violent and started throwing stones and empty bottles at the police . The police forced the protesters out of GPE . The crowd then started committing acts of vandalism and looting shops and buildings in neighbouring streets . There were clashes with the police , who in response used truncheons , rubber bullets and plastic handcuffs . A large number of people were arrested . According to some sources approximately a third of those detained were ethnic NORP ; ethnic NORP were also among those charged with looting and theft .

Early in the morning of DATE the Government decided to move the monument from GPE , and DATE it was re - erected in a military cemetery . On TIME DATE protesters returned to GPE . The police again cordoned off the area and carried out arrests , this time within a wider radius of the monument ’s former location . Disorder and vandalism continued for TIME . Although the protests were unauthorised , there was no formal ban on visiting the city centre . Nevertheless , on DATE the Government , through the mass media and messages sent to people ’s e - mail addresses and mobile phones , asked people to stay at home and not to respond to provocation .

According to the information provided by the Government , on CARDINAL DATE there were CARDINAL people in the streets of GPE . On DATE CARDINAL CARDINAL people took part in the riots in GPE , and on DATE the number of rioters was CARDINAL . CARDINAL officers participated in police operations in GPE , but considering the fact that at any time some were off duty , some were in reserve and some were guarding important facilities , during the peak period there could have been CARDINAL officers protecting public order in the streets in GPE .

According to the official sources referred to by the applicants , in total CARDINAL people were arrested ( of whom CARDINAL were NORP nationals , CARDINAL were NORP nationals and CARDINAL were persons of undetermined citizenship ) . CARDINAL person was stabbed to death and CARDINAL were injured ( including CARDINAL policemen ) . The police recorded CARDINAL cases of vandalism . By CARDINAL DATE the authorities had opened CARDINAL criminal cases involving CARDINAL suspects , mostly concerning serious breach of public order and disregard of lawful orders given by representatives of the state authority .

The first applicant was arrested on DATE at TIME in FAC in the city centre . He states that he was kicked to the ground by the police officers and made to lie face down on the road , where there was a lot of broken glass . He was handcuffed and taken to a storage facility at the port ( Dterminal ) . According to the applicant , the police officers refused to tell him where he was being taken or to give any reasons for the arrest .

By TIME on DATE CARDINAL people were being held at ORG , a storage facility which measured QUANTITY . The applicant was told to squat against the wall .

The first applicant submitted that detainees who attempted to stand up because their legs had gone numb or as a protest were kicked to the ground , hit with rubber truncheons and beaten . According to the first applicant he was struck so hard that he fell to the floor . He claimed that he was repeatedly beaten with truncheons and kicked in the stomach by police officers wearing heavy boots .

According to a medical report issued on CARDINAL DATE and submitted by the first applicant , it appears that he had a haematoma and was diagnosed with pelvic contusion in the right side of the lumbo - sacral region . A medical record was also submitted to the domestic authorities to substantiate his criminal complaint ( see paragraph CARDINAL below ) .

The applicant also submitted to ORG a written statement from Zh . , dated DATE , concerning their arrest and detention . According to Zh . , the first applicant was well known to him . Zh . confirmed that during their detention in D - terminal , the first applicant had stood up in order to stretch his legs . A plain - clothes person had told him to sit or to lie down ( “ GPE ! ” in NORP meaning “ Down ! ” ) . The first applicant inquired on what basis he was being given those orders , but instead of a response he was pushed down and kicked while down on the floor . He was kicked in the stomach .

The police kept the first applicant ’s personal details and released him at TIME on DATE without charge . According to the applicant no explanations or grounds for his detention were given , his rights were not explained to him and he was not given any official record of his detention .

The second applicant , who was a minor at the time , states that he was arrested on DATE at TIME in FAC . After witnessing the arrest of CARDINAL individuals aged DATE who were walking in front of him in the street , the second applicant became scared and attempted to run away but was caught by a police officer who threw him on to the ground , held him down and tied his hands with plastic straps . He was taken by bus to D - terminal without being given any reasons for his arrest or being allowed to call his mother . TIME he was asked how old he was , after which his handcuffs were removed . Nevertheless , it was TIME until the police officers called his mother , who was working a TIME shift and therefore could not come and collect him . He was taken home at TIME on DATE .

As submitted by the third applicant , he was arrested on DATE at TIME on the corner of FAC and LOC on his way home after a date with his girlfriend . He was approached by police officers , ordered to lie on the ground and handcuffed . At TIME on DATE he was taken to FAC . He was searched and , allegedly without being told his rights or allowed to make a phone call , placed in a cell designated for CARDINAL inmates where there were soon to be CARDINAL .

According to a report on the detention of the third applicant as a suspect , drawn up on DATE , he had been arrested at TIME His rights and obligations were explained to him , including the right to be assisted by counsel and to make complaints , and this was confirmed by his signature . The report also contained the third applicant ’s request to call his mother , as well as the statement that he was suspected of a serious breach of public order . It was further noted that there were grounds to believe that he could continue to breach public order if released .

According to a report drawn up by a senior police inspector , ORG , who had arrested the applicant , he had been arrested because he had participated in a serious breach of public order involving active violence , and had also incited others present to commit similar offences . He had had to be arrested to prevent him from continuing with this activity .

On DATE from TIME the third applicant was interviewed by a prosecutor as a suspect of a serious breach of public order . The record of the interview states that the applicant explained that he and his girlfriend had gone to see what was going on around the PERSON on DATE at TIME and after that they were walking around in the city centre . He had done nothing when he was arrested on DATE at TIME According to the third applicant he had been questioned in NORP without an interpreter . He was released at TIME on DATE . He left with a prohibition on leaving his place of residence .

On DATE the criminal investigation in respect of the third applicant was terminated because it could not be established that an offence had been committed .

According to the fourth applicant ’s submissions , he was watching the protest on TIME DATE in FAC . At TIME the policemen started firing at the crowd with rubber bullets . CARDINAL of the bullets hit the fourth applicant ’s right arm . He was subsequently hit on the head with CARDINAL or more truncheons , causing a serious wound . He was then hit on the knee , which caused him to fall to the ground . His arms were bound and he was thrown into a car . He was not allowed to make a phone call or told his rights or the reasons why he had been arrested . His requests for first aid were ignored . He was taken to PERSON , where he started to lose consciousness . Only at this point was his head bandaged . When he started to feel worse , a nurse examined him and advised that he should be taken to hospital .

According to a medical report submitted to the ORG he arrived at the hospital at TIME on DATE . He was diagnosed with a haematoma on his skull . A medical report was also submitted to the national authorities to substantiate the fourth applicant ’s criminal complaint ( see paragraph CARDINAL below ) .

The fourth applicant submitted to the ORG a written statement from ORG , dated DATE , concerning the use of force by law - enforcement officers at FAC . According to ORG statement , on DATE at TIME he had gone to FAC in the capacity of reporter , carrying a camera and also a reporter ’s card . He stayed there until TIME At TIME policemen with special gear , equipped with helmets , shields and truncheons rushed at the gathered people . The people who had started to run away clashed with a “ special squad ” of policemen . It was the onlookers who were the first to run up to the “ special squad ” , who handled them roughly . The people were pushed back and shouted at “ Back ! ” and “ Down ! ” If they resisted , that is did not drop to the ground , they were beaten with truncheons without warning , even though they were not displaying any signs of aggression . They were kicked to the ground , their hands were bound behind their back and they were again bludgeoned with truncheons . Even those who chose to submit were bound and sometimes hit . From time to time officers of the “ special squad ” went for CARDINAL person in a group of CARDINAL or CARDINAL . The fourth applicant is not mentioned in GPE ’s statements .

By a decision of CARDINAL DATE ORG , in misdemeanour proceedings , fined the fourth applicant CARDINAL kroons ( EEK , corresponding to MONEY ( EUR ) ) for a breach of public order . According to this decision it had been established that on DATE at TIME , TIME after he had sustained the injury described above , the fourth applicant had brawled and had thrown a lit rocket in the street in the centre of GPE . He did not appeal against the decision .

The fifth applicant stated that he had been with some friends near FAC at TIME on DATE when he was suddenly attacked by police officers . He was kicked to the ground and CARDINAL officers started hitting him on the head with truncheons and kicking him in the head . His arm was broken as he tried to protect his head with his arm . He was taken to PERSON and made to squat without being allowed to stand up . According to the applicant , detainees who tried to stand up were severely beaten . Although the fifth applicant complained of pain in his arm , he was not given any medical treatment . He was not told why he had been detained ; nor was he allowed to make a phone call or told his rights . He was released at TIME DATE .

According to a medical report submitted to the ORG , the fifth applicant arrived at the hospital at TIME on DATE and was diagnosed with a fractured forearm . A medical report was also submitted to the national authorities to substantiate his criminal complaint ( see paragraph CARDINAL below ) .

The fifth applicant also submitted to the ORG written statements from PERSON and PERSON , both dated DATE , describing the circumstances of his arrest and the violence used by the police officers against him .

According to PERSON ’s statement , on DATE TIME he had gone to FAC to see what was happening at the monument together with the fifth applicant and PERSON spent some time talking to an acquaintance . When he turned to the fifth applicant , he saw a policeman attacking him from behind and twisting his arm . TIME CARDINAL more policemen came running . They pushed the fifth applicant to the ground . CARDINAL of the policemen put his foot on him and all CARDINAL started to hit the fifth applicant on his head with truncheons . The fifth applicant covered his head with his arm . PERSON ran away . DATE he went to a doctor with the fifth applicant .

K. stated that he met the fifth applicant and PERSON on DATE at TIME They went to FAC . He saw a policeman attacking the fifth applicant from behind . TIME CARDINAL more policemen ran up to him . He was pushed to the ground and beaten with truncheons . Then PERSON was also hit with a truncheon , he fell down and his hands were twisted . PERSON and the fifth applicant were taken to D - terminal . The fifth applicant told him on several occasions that his arm was hurting . In D - terminal , people who failed to comply with the orders to sit were beaten .

According to the sixth applicant , some time after TIME on DATE he and his wife went to see what was happening at FAC and to take some photos for the family album . At TIME , when the police started using truncheons , gas and grenades to disperse the crowd , the applicant and his wife decided to leave and go home . On their way home at TIME on DATE they saw CARDINAL men fighting on the opposite side of FAC ( the ORG notes that if the dates of the official documents referred to in DATE below are correct , the dates mentioned in this paragraph should read DATE and DATE respectively ) . According to the sixth applicant , he stayed to stop the fight and his wife went home . The fight stopped without any intervention from the applicant and he continued on his way home . He then joined a group of CARDINAL people who were asking the police to let them go home to NORP Street to get away from the fights and looting in FAC . However , the police officers ordered them to go to FAC . According to the applicant , DATE or TIME later the policemen approached them , brandishing their truncheons , while at the same time another group of policemen began attacking them from the other side . The sixth applicant and the other people were first made to stand against the wall of a house and then tied to each other with plastic bands and handcuffed . No explanations were given as to the reasons for their arrest . Their personal details were recorded . TIME a vehicle arrived and the applicant and the other people were taken to FAC . According to the sixth applicant he was searched and placed in a cell which was designed for CARDINAL people , together with CARDINAL others .

According to a report on the detention of the sixth applicant as a suspect , drawn up on DATE , he had been arrested at TIME His rights and obligations were explained to him , including the right to be assisted by counsel and the right to make complaints , which was confirmed by his signature . The report also stated that he was suspected of having committed a serious breach of public order . It was further noted that there were grounds to believe that he could continue to breach public order if released .

On DATE from TIME to TIME the sixth applicant was interviewed by a prosecutor on suspicion of having committed a serious breach of public order . The report contains the sixth applicant ’s signature to confirm that he was aware of his rights and did not need a lawyer . According to the sixth applicant , although he had been offered a ORG - assigned lawyer , his status was not explained to him and nor was the importance of having a lawyer . Moreover , the investigator persuaded him to refuse the lawyer ’s assistance , saying that he would be acquitted in court . This is how he came to refuse the lawyer ’s services .

The record of the interview states that the sixth applicant said that after his wife had gone home he had gone to see what was happening . He had been arrested at TIME on DATE , although he had committed no offences , but had merely been watching what was going on . He was then released . He left with a prohibition on leaving his place of residence .

On DATE , after interviewing the sixth applicant again , the police terminated the criminal investigation in his regard because it could not be established that an offence had been committed .

The seventh applicant was arrested on DATE at TIME while he was walking to a bus stop . The applicant stated that a police officer approached him and asked to see his identity papers . When the seventh applicant produced them , the police officer asked for details of his citizenship . When the seventh applicant asked why this mattered , the policeman answered : “ You will see now ” and he tied the seventh applicant ’s hands together with tape . He was taken in a police vehicle to a court building . There , he was made to stand against a wall and when he tried to move , police officers pushed him , causing him to hit his head on the floor and hurt it badly . He stated that the police officers hit him repeatedly on the head and CARDINAL police officer kicked him in the genitals . The police officers also pulled his legs in different directions , sat on him and shouted at him . After TIME he was taken to a cell , where he spent TIME . His rights were not explained to him , nor was he allowed to make a phone call . He was released at TIME on DATE . When he asked why he had been detained the only answer he received was that he should not have left his house before DATE ( NORP Victory Day in the Second World War ) .

A medical report issued at TIME on DATE and submitted by the seventh applicant indicates that he had an abrasion on the right side of his face and a small abrasion on his forehead . He also complained of severe pain in his right thigh but there were no signs of any trauma . A medical report was also submitted to the domestic authorities to substantiate his criminal complaint ( see paragraph CARDINAL below ) .

The applicant also submitted to ORG a written statement from NORP , dated DATE , describing the circumstances of their arrest and detention . NORP described his arrest together with the seventh applicant and their detention in a court building . He submitted that they were made to stand against a wall . When TIME had passed , the seventh applicant asked how long they had to stand like that . He was rudely reminded that he had been told to shut up and not to turn his head . Then he was grabbed by the legs so that he fell and hit his head . CARDINAL policemen pushed his legs apart and CARDINAL one kicked him between the legs . He cried out in pain . After some time he was taken to the basement between CARDINAL policemen . He could not walk unaided because of a serious injury to his genitals .

According to a misdemeanour report drawn up by police officer PERSON on DATE , the seventh applicant had been shouting and using foul language in a public place ( FAC ) and disturbing other people at TIME on DATE . Therefore , he had committed a breach of public order . The misdemeanour report refers to a separate report on the questioning of a witness , a police officer , and bears the seventh applicant ’s signature next to his remark that he had seen the report but did not agree with the statements contained in it . The report also contains an excerpt from the statement of the rights of the person in respect of whom the proceedings are conducted , signed by the seventh applicant . The rights quoted include the right to counsel and the right to lodge complaints under LAW .

By a decision of CARDINAL DATE ORG , in misdemeanour proceedings , fined the seventh applicant EEK CARDINAL ( EUR CARDINAL ) for a breach of public order . According to the decision it had been established that on DATE at TIME the seventh applicant had shouted , used foul language and annoyed other people . He did not appeal against the decision .

Each of the applicants made an individual criminal complaint to the public prosecutor ’s office or an application to the Chancellor of Justice ( Õiguskantsler ) after the events described above , complaining that violence had been used against them and alleging that they had been unlawfully deprived of their liberty . The Chancellor of ORG forwarded the applications submitted to him to the public prosecutor ’s office .

The first , fourth , fifth , sixth and seventh applicants also submitted medical reports to substantiate their allegations . In the first applicant ’s complaints it is mentioned that he was arrested together with PERSON . The fifth applicant provided the names and personal details of PERSON and PERSON , who could give statements concerning the circumstances of his arrest . In his appeal , the seventh applicant referred to NORP as a witness . In addition , the fourth applicant appended a video recording of the arrests to his subsequent appeal to ORG ( see paragraph CARDINAL below ) .

The applicants’ description of the events in their complaints made to the authorities broadly correspond to their factual submissions to the ORG summarised above . As to any discrepancies , the first applicant did not mention in his domestic complaints that he personally was beaten with truncheons ; his account of events corresponded to that given to the Court by Zh . ( see paragraph CARDINAL above ) . The first applicant also described in general the situation in D - terminal . He thought that there were CARDINAL detainees and CARDINAL police officers . He described a situation where a youngster had called on people to stand up to protest against what was going on . Most of the people who could , had stood up . Then the policemen had started to beat everyone and CARDINAL more policemen had rushed in . The protesters were thrown down or forced to sit . By TIME there were CARDINAL people being held in D - terminal . The seventh applicant submitted in his criminal complaint that in the basement of the court - house there had been many people , some standing facing the wall , some on the floor . He had been placed against the wall . When he had tried to stretch his legs , he was pushed to the floor . He was particularly brutally beaten . He was hit on the head , his legs were pulled apart and an officer sat on his body . All this was accompanied by terrible shouting and noise . The seventh applicant did not mention being hit in the genitals .

In their complaints and subsequent appeals the applicants claimed to be victims of a number of offences described in LAW ( Karistusseadustik ) . They notably referred to physical abuse ( LAW ) , torture ( LAW ) , unlawful deprivation of liberty ( LAW ) , abuse of authority ( LAW and unlawful treatment of prisoners or persons in detention or custody ( LAW . They further mentioned LAW and DATE and in some cases Articles DATE and CARDINAL of the LAW , and cited various provisions of other international instruments .

The ORG district prosecutor ’s office declined to initiate criminal proceedings , taking the view that the ORG arrest and the use of force and special equipment by the police had been lawful .

The applicants appealed to ORG , which dismissed their appeals , emphasising that criminal proceedings were commenced only when there was sufficient information to indicate that an offence had been committed . It noted that during the riot stones and bottles had been thrown at police officers , and there had been violent looting and acts of destruction , during which participants had themselves been injured . Thus , the allegations by the applicants about the circumstances in which they had sustained their injuries were not in themselves sufficient to establish a causal link between the alleged acts and the consequences . Moreover , the police officers were authorised to apply coercive measures and to detain persons suspected of committing criminal offences , but the applicants had not complied with the orders of law - enforcement officers to leave the site of an unauthorised and violent mass meeting . The measures taken in respect of them had been appropriate and no elements of an offence could be identified on the basis of the ORG complaints .

The applicants lodged further complaints with ORG against the refusal to initiate criminal proceedings . The court dismissed them , upholding the finding of the prosecutor ’s office that no unequivocal link between the actions of the police officers and the injuries sustained by the applicants could be established . The court held that the use of force by the police had been lawful and there was no evidence that an excessive force had been used . In respect of the allegedly unlawful deprivation of liberty , it noted that LAW , a person could also be deprived of his or her liberty in order to prevent an offence or to prevent his or her escape . No appeal lay against ORG decision .

Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ( ORG seadustik ) , as in force at the material time , set out the rules on detention of a suspect and read , in so far as relevant , as follows :

“ ( CARDINAL ) Detention of a suspect is a procedural act whereby a person is deprived of liberty for up to TIME . A report shall be prepared on a detention .

( CARDINAL ) A person shall be detained as a suspect if :

NORP he or she is apprehended in the act of committing a criminal offence or immediately thereafter ;

an eyewitness to a criminal offence or a victim indicates such person as the person who committed the criminal offence ;

NORP the evidentiary traces of a criminal offence indicate that he or she is the person who committed the criminal offence .

( CARDINAL ) A suspect may be detained on the basis of other information referring to a criminal offence if :

NORP he or she attempts to escape ;

NORP he or she has not been identified ;

NORP he or she may continue to commit criminal offences ;

he or she may abscond criminal proceedings or impede the criminal proceedings in any other manner ...

( CARDINAL ) An official of an investigative body shall explain the rights and obligations of a person detained as a suspect to the person and shall interrogate the suspect immediately pursuant to the procedure provided for in LAW .

( CARDINAL) If a ORG is convinced of the need to arrest a person , the ORG shall prepare an application for an arrest warrant and , within TIME of the detention of the person as a suspect , organise the transport of the detained person to a preliminary investigation judge for the adjudication of the application .

( CARDINAL ) If the basis for the detention of a suspect ceases to exist in pre - trial proceedings , the suspect shall be released immediately .

( CARDINAL ) A person detained as a suspect is given an opportunity to notify CARDINAL person close to him or her at his or her choice of his or her detention through a body conducting proceedings . If the notification prejudices a criminal proceeding , the opportunity to notify may be refused with the permission of ORG . ”

“ ( CARDINAL ) A report on the detention of a suspect shall set out :

NORP the basis for the detention and a reference to LAW or CARDINAL of this Code ;

the date and time of the detention ;

the facts relating to the criminal offence of which the person is suspected and the legal assessment of the criminal offence pursuant to the relevant section , subsection or clause of LAW .

explanation of the rights and obligations provided for in LAW to the suspect ;

NORP the names and characteristics of the objects confiscated from the suspect upon detention ;

a description of the clothing and bodily injuries of the detained person ;

NORP the petitions and requests of the detained person .

( CARDINAL ) A report on the detention of a suspect shall be sent to a ORG immediately . ”

Articles CARDINAL to CARDINAL of the Code of Criminal Procedure provide that a complaint concerning a procedural act or order of an investigative body may be lodged with the prosecutor ’s office if the person concerned finds that his or her rights have been violated by a procedural act or order of the investigative body . Further appeals may be lodged with ORG and then a county court .

Articles DATE to CARDINAL of the Code of Misdemeanour Procedure ( ORG seadustik ) , as in force at the material time , set out the rules on detention of a suspect and read , in so far as relevant , as follows :

“ ( CARDINAL ) A person with regard to whom there is justified reason to believe that he or she has committed a misdemeanour may be detained for up to TIME if he or she :

NORP attempts to escape ;

NORP has not been identified ;

NORP is likely to continue commission of misdemeanours ;

is likely to hinder or evade the misdemeanour proceedings .

( CARDINAL ) Upon detention of a person :

NORP he or she is taken to a police authority or the official premises of a body conducting extra - judicial proceedings who is competent to detain persons according to LAW or to a police detention house ;

a statement is immediately taken from the person with regard to the commission of the misdemeanour and a report on the detention of the person or a misdemeanour report is prepared ;

NORP the person taken into custody is immediately taken to a county court for the hearing of the matter if the person has committed a misdemeanour and the body conducting extra - judicial proceedings deems it necessary to impose detention , and the corresponding misdemeanour report and other procedural documents have been prepared concerning the misdemeanour matter . In such case , the person subject to proceedings may lodge an objection with the court .

( CARDINAL ) ORG commences with effect from the moment when the person is detained . The period of detention shall be included in the term of the punishment pursuant to the procedure provided for in LAW .

( CARDINAL ) If it becomes evident that the detention of a person is not justified , he or she shall be released immediately .

( CARDINAL ) If a person is not detained on the bases provided for in paragraph CARDINAL of this Article , the time of interrogation of the person or performance of any other procedural act with regard to him or her is not deemed to be detention of the person . ”

“ ( CARDINAL ) A report shall be prepared on the detention of a person on the bases provided for in LAW . A report on the detention of the person shall not be prepared if a misdemeanour report is prepared upon detention of the person and the information prescribed in LAW is entered in the misdemeanour report .

( CARDINAL ) A report on the detention of a person shall set out :

the date and place of the procedural act ;

NORP the name of the body conducting extrajudicial proceedings and the official title , given name and surname of the official of the body who prepared the report ;

NORP the official title , given name and surname of the police officer who participated in the detention of the person ;

NORP the given name and surname of the person subject to proceedings ;

NORP the duration of and basis for the detention , together with a reference to LAW ;

the place , date and time of the detention ;

NORP the legal assessment of the misdemeanour ;

explanation of the rights and obligations of the person subject to proceedings pursuant to LAW ;

a description of the clothes and footwear of the person detained and information concerning visible health damage ;

a list of the objects seized from the person upon detention , and the characteristic features of the objects ;

any applications and representations made by the person detained ;

NORP the provision of procedural law on the basis of which the procedural act was performed .

( CARDINAL ) A report shall be signed by the person who prepared the report and by the police arresting officer . The person subject to proceedings shall sign the report , certifying that he or she has examined the report and that the rights and obligations provided for in LAW have been explained to him or her . If the person subject to proceedings refuses to sign the report , an entry to that effect shall be made in it .

( CARDINAL ) At the request of a person subject to proceedings , CARDINAL person of his or her choice shall be notified of his or her location . If the person detained is a minor , a parent or the guardian or curator of the minor and the social services department shall be immediately notified of the detention . ”

Articles DATE to CARDINAL of the Code of ORG set out the rules on complaints against the activities of a body conducting misdemeanour proceedings . Such complaints may be lodged with the head of the organisation in question and a further appeal may be lodged with a county court .

Article CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW ( ORG seadustik ) , as in force at the material time , provided that a claim for establishment of the lawfulness or otherwise of an administrative act or measure , or for compensation for damage caused in public - law relationships , could be lodged with an administrative court . LAW and DATE set a DATE time - limit for lodging such claims .

LAW ( Politseiseadus ) , as in force at the material time , provided in its relevant part :

“ ( CARDINAL ) The police have the power to :

NORP demand that individuals and officials observe public order and terminate violations thereof , and also to apply coercive measures prescribed by law with regard to offenders ;

NORP check the identity documents of individuals suspected of committing an offence , and in order to ensure safety conduct on - the - spot checks of suspected persons and their belongings ;

NORP draw up reports of misdemeanours , impose punishments for misdemeanours , take individuals into custody , and apply other measures prescribed by law in the fight against misdemeanour offences ;

NORP summon members of the public and officials to the police in criminal or administrative offence matters in police proceedings , and take individuals involved in offences to the police for immediate establishment of the facts of the offence ;

NORP pursuant to the procedure provided by acts and other legislation , detain or hold in custody individuals suspected of having committed criminal offences ...

NORP take individuals who , due to alcohol or narcotic intoxication , might present a danger to themselves or to others , and also anyone who has violated public order , to a medical establishment or to the police for identification and , where necessary , for a misdemeanour report to be drawn up ; ... ”

On DATE the Riigikogu amended LAW , creating a clear distinction between administrative arrest and arrest in offence proceedings ( that is , criminal or misdemeanour proceedings ) . A limited number of grounds for the use of administrative arrest were provided and it was stipulated that administrative arrest could be challenged before the head of the police authority concerned or by means of a complaint to an administrative court . The amendments further involved regulations on the identification of members of the public , and in certain cases allowed such individuals to be taken to police premises for that purpose . Lastly , the amendments concerned more detailed rules on the use of force , and provided for grounds and procedure to be used to prohibit a person from remaining in a given place . Some rules were also introduced specifically for use in the event of mass disorder .

On DATE a new Police and Border Guard Act ( GPE ja piirivalve seadus ) entered into force , replacing LAW . In so far as is relevant to the present case , it contains elements broadly similar to the DATE amendments to LAW .

NORP In its judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) , ORG found that taking a person to police premises did not necessarily mean that he or she was being detained within the meaning of LAW . Thus , under section CARDINAL(CARDINAL)(CARDINAL ) of LAW the police were entitled to take individuals involved in offences to the police for immediate establishment of the facts of the offence ; and section CARDINAL(CARDINAL)(CARDINAL ) allowed individuals to be taken to the police for a misdemeanour report to be drawn up . This was affirmed by LAW , under which a person could also be detained on other grounds than those set out in LAW .

In its judgment of DATE ( case no . CARDINAL - CARDINAL ) , ORG of ORG dealt with a complaint concerning the use of force by police officers and the use of special equipment in the context of traffic supervision . ORG considered that stopping a vehicle and checking documents were usually acts forming part of supervisory proceedings in the course of which a police officer collected additional necessary information about the elements of an offence in order to establish whether a basis for misdemeanour proceedings existed . ORG held that the use of force and special equipment within supervisory proceedings could be challenged before an administrative court , whereas in the event of complaints concerning measures applied in misdemeanour proceedings a county court had jurisdiction over the matter , pursuant to ORG DATE to CARDINAL of the Code of Misdemeanour Procedure .

ORG further noted that detention of a person on the basis of LAW ( CARDINAL ) of LAW for the purposes of his or her identification , which also involved taking the person to police premises , could not be considered a supervisory measure . Under the law in force it was only possible to detain a person if offence proceedings had been initiated . For the purposes of classifying detention as the first measure applied in misdemeanour proceedings it was irrelevant whether the measure had been taken in full compliance with the rules of misdemeanour proceedings .

In DATE the ORG made a visit to GPE . On DATE it published a report of its visit ( ORG ( DATE ) CARDINAL ) , which contains the following findings :

“ CARDINAL . Shortly before the visit ( in TIME DATE ) , mass demonstrations had taken place in GPE , during which CARDINAL persons had been apprehended by the police . The delegation paid particular attention to the manner in which these persons had been treated and the conditions under which they had been detained by the police . From the information gathered , it appears that , once apprehended , the persons concerned had been transported to various detention facilities ( police stations , arrest houses , court holding cells ) . However , as the capacity of the existing detention facilities was insufficient , the majority of these persons had been taken to a customs warehouse situated at Terminal D in the port of GPE ; following an identity check and questioning by the police , they had then either been released or transferred to a regular place of detention . ...

With the notable exception of the DATE events , hardly any allegations of physical ill - treatment by the police were received .

As regards the above - mentioned events , the delegation received numerous allegations of ill - treatment and/or excessive use of force by the police . These allegations mainly concerned punches , kicks and baton blows to the head , back and legs , when the persons concerned had been brought under control . Furthermore , a number of detained persons complained of ill - treatment ( kicks or baton blows ) on arrival at the place of detention and until they were placed in a cell . Some claimed that were obliged to remain immobile for long periods of time , standing facing the wall or kneeling , while waiting to be placed in a cell ( for example , TIME standing facing a wall and TIME kneeling ) ; in some cases , movements or speaking were allegedly punished by a blow . Some allegations were also received of very tight handcuffing for lengthy periods ( from the time of apprehension to that of being placed in the cell ) , rude behaviour and insults . Most of the above - mentioned allegations concerned members of the special forces , some of whom were masked during the intervention .

The ORG is aware of the difficulties with which any police service is confronted during such extraordinary events . However , the prohibition of torture and inhuman or degrading treatment or punishment is absolute , and no exceptional circumstances may justify a derogation from that principle .

The ORG recommends that all police officers , in particular members of special intervention groups , be reminded that all forms of ill - treatment of persons deprived of their liberty ( including verbal abuse ) are not acceptable in whatever circumstances and will be punished accordingly . Police officers should also be reminded that the force used when performing their duties should be no more than is strictly necessary and that , once persons have been brought under control , there can be no justification for striking them .

Further , police officers must be trained in preventing and minimising violence in the context of an apprehension . For cases in which the use of force nevertheless becomes necessary , they need to be able to apply professional techniques which minimise any risk of harm to the persons whom they are seeking to apprehend .

The ORG would also like to express its misgivings about the practice of law enforcement officials wearing masks when apprehending persons ( as was apparently the case during the above - mentioned events ) since this will hamper the identification of those responsible if and when instances of ill - treatment arise . The ORG considers that only exceptional circumstances can justify measures to conceal the identity of law enforcement officials carrying out their duties . Where such measures are applied , appropriate safeguards must be in place in order to ensure that the officials concerned are accountable for their actions ( e.g. by means of a clearly visible number on the uniform ) .

In their letter of CARDINAL DATE , the NORP authorities informed the ORG that CARDINAL criminal investigations into alleged cases of police ill - treatment had been initiated in connection with the DATE events , most of them on the basis of Sections CARDINAL ( physical abuse ) and CARDINAL ( abuse of authority ) of LAW . In CARDINAL cases , these investigations had been discontinued , while , in all other cases , they were still pending ...

The information gathered during the visit demonstrated that many of the persons detained by the police in connection with the DATE events in GPE were not granted the fundamental safeguards set out in paragraph CARDINAL from the outset of their deprivation of liberty .

Many of the persons concerned were apparently allowed to contact a family member or another person of their choice and to be assisted by a lawyer only when they were brought before a judge . Further , a number of detained persons claimed that their requests to see a doctor whilst in police custody had been denied , even when they displayed visible injuries .

The ORG would like to stress that , even in exceptional circumstances such as those of the DATE events , it is incumbent on the authorities to make every effort to guarantee that persons detained by the police enjoy the above - mentioned fundamental safeguards as from the very outset of their deprivation of liberty .

The examination of medical files at ORG revealed that injuries displayed by prisoners detained in connection with the DATE events had not always been recorded in detail upon admission to the prison . Further , the medical records often contained little or no information about the statements made by the prisoners concerned and never included the doctor ’s conclusion as to the possible causes of the injuries observed ... ”

In their responses to the ORG report , published on DATE ( ORG ( DATE ) CARDINAL ) , ORG submitted the following , in so far as relevant :

“ CARDINAL criminal cases were launched against officers in connection with the DATE events . Of these , CARDINAL were under LAW ( abuse of authority ) , MONEY LAW § CARDINAL ( CARDINAL ) CARDINAL ) ( embezzlement by an official ) and CARDINAL under LAW § CARDINAL ( physical abuse ) . At present , the investigations of all CARDINAL cases have terminated . CARDINAL cases were terminated due to lack of evidence and QUANTITY cases were terminated due to lack of necessary and objective elements of a criminal offence . No disciplinary investigations were launched in connection with the DATE civil unrest . ”