Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies - art. 6 : time and facilities to prepare defence);No violation of Art. 6-1;Violation of Art. 6-1+6-3-b;No violation of Art. 6-1+6-3-c;Violation of Art. 11;Not necessary to examine Art. 10;Violation of P7-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

NORP In DATE a presidential election was held in GPE with its first round taking place on DATE . The applicant acted as an authorised election assistant ( վստահված անձ ) for the main opposition candidate in the election . At the second round of the election , which took place on DATE , the applicant was a member of CARDINAL of the district election commissions . Following the election , the applicant participated in a series of rallies of protest organised in GPE by the opposition parties .

The applicant alleged , and the Government did not dispute , that at DATE police officers of FAC of GPE ( ՀՀ ոստիկանության ORG քաղաքի կենտրոնական բաժին ) came to the applicant 's home while he was absent . Having found out about this , the applicant went to the police station to inquire about the reasons for their visit . At FAC , the Deputy Head ordered the applicant to stop participating in the demonstrations .

On DATE at CARDINAL a demonstration was held in the centre of GPE on the occasion of Mother 's Day . The demonstration took place on FAC next to ORG ( PERSON ) . It appears that the demonstration was of a political nature and criticism of the Government and of the conduct of the presidential election was voiced .

The applicant alleged , and the Government did not dispute , that the demonstration was organised by women and was attended by CARDINAL people , the majority of whom were female . Traffic was suspended by the traffic police on the relevant stretch of the Avenue prior to the commencement of the demonstration . The applicant did not as such participate in the demonstration since most men , including himself , were observing it from a distance , standing on both sides of the Avenue . Their task was to encourage the women and to prevent possible provocations .

According to the applicant , at around CARDINALhCARDINAL he went home . On his way home , QUANTITY away from the site of the demonstration , he was approached by CARDINAL persons in civilian clothes , who showed police identity papers and took him to LOC .

At FAC , the arresting police officers drew up a record of the applicant 's arrest ( արձանագրությաւն բերման ենթարկելու մասին ) in which it was stated that the applicant had been “ arrested at around CARDINALhCARDINAL on FAC for obstructing traffic and behaving in an anti - social way at a demonstration ” .

One of the arresting police officers reported to the Head of FAC ( ՀՀ ոստիկանության Երևան քաղաքի կենտրոնական բաժնի պետ ) that :

“ ... on DATE we were on duty at FAC , where a demonstration was being held and a great number of people were gathered . While on duty , we noticed CARDINAL person who was obstructing traffic , behaving in an anti - social way and inciting others to follow his example . This person was brought to FAC ... ”

NORP The applicant was subjected to a search during which no illegal items were found . A relevant record was drawn up .

The police officers questioned the applicant . The applicant made a written statement ( արձանագրություն բացատրություն վերցնելու մասին ) in which he submitted that he had participated in a demonstration DATE before . Having found out about the demonstration of DATE , he had also gone there . He further submitted that he was aware of a demonstration to be held in DATE and that he would participate in it . The applicant added that he had not violated , and would not violate , any laws during these demonstrations . This statement was torn up by the police officers , who said that there was a pencil mark and asked the applicant to write a new one . When he wrote the new statement with a similar content , the police officers stopped him at the point when he was about to write about not having committed any offences during the demonstrations and said that what he had written was enough .

NORP The police officers drew up a record of an administrative offence ( վարչական իրավախախտման արձանագրություն ) in which it was stated that the applicant had “ participated in a demonstration , during which he violated public order ” . The applicant 's actions were qualified under LAW ( CAO ) ( Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք ) as minor hooliganism . This record was signed by the applicant . He also put his signature in the section certifying that he was made aware of his rights under LAW and in the section marked as “ other information relevant for the determination of the case ” , where he also added “ I do not wish to have a lawyer ” .

The applicant alleged that he had initially refused to sign this record and requested a lawyer . This became the reason why he was kept in FAC for the following TIME . During this period , the police officers were persistently trying to convince him to sign the record and to refuse a lawyer . They told him that it was unnecessary to have a lawyer and spend money for such a minor case . They further said that the case had been already pre - decided by their superiors , so a lawyer would only harm rather than help , as he may end up spending quite some time in FAC because of that . On the other hand , if he signed the record and refused a lawyer , he would be immediately taken to a court , where at worst a small fine would be imposed and he would be released . The applicant finally succumbed and agreed to sign the record and to refuse a lawyer . DATE at CARDINAL he was taken to judge PERSON and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) , who examined the case .

The Government contested this allegation . According to them , the applicant was kept at FAC for TIME and taken to judge PERSON at CARDINALhCARDINAL . During this period , the police officers explained to the applicant his right to have a lawyer and advised him to avail himself of this right , which he did not wish to do . The record of an administrative offence was signed by the applicant voluntarily and without any objections . Furthermore , the applicant failed to initiate any actions aimed at the defence of his rights , such as lodging motions or availing himself of other procedural rights guaranteed by LAW ORG , despite having been made aware of them .

The materials of the applicant 's administrative case , which were transmitted by the police to judge PERSON for examination , contained the following documents : ( CARDINAL ) the record of an administrative offence ; ( CARDINAL ) the police report ; ( CARDINAL ) the record of the applicant 's arrest ; ( CARDINAL ) the record of the applicant 's search ; and ( CARDINAL ) the applicant 's written statement . All these documents were signed by the applicant except the police report .

Judge PERSON , after a brief hearing , sentenced the applicant under LAW of administrative detention . The judge 's entire finding amounted to the following sentence :

“ On DATE at around QUANTITY ... on FAC [ the applicant ] , together with a group of people , obstructed street traffic , violated public order by making a loud noise , and incited other participants of the demonstration to do the same ... ”

The decision stated that it was subject to review by the Chairman of the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ ) .

According to the record of the court hearing DATE drawn up in a calligraphic handwriting – the hearing was held in public with the participation of the judge , a clerk and the applicant . The judge explained the applicant 's rights to him and informed him of the possibility to challenge the judge and the clerk . The applicant did not wish to lodge any challenges . He stated that he was aware of his rights and did not wish to have a lawyer . The judge read out the motion submitted by the police , seeking to impose administrative liability on the applicant . The applicant stated that he , together with a group of unknown people , had blocked the traffic on FAC . He said that he did this because it was a demonstration and everybody else was doing the same . He made noise since everybody else was making noise , but he did not push anybody . No questions were put to the applicant . Thereafter , the judge read out and examined the materials prepared by the police . Having familiarised himself with these materials , the applicant accepted that he had signed the record of an administrative offence but objected to being subjected to administrative liability since the incriminated acts had been committed also by others . The judge departed to the deliberation room , after which he returned and announced the decision . The time of the hearing was not recorded .

NORP The applicant alleged , and the Government did not explicitly dispute , that the above record was a fake and was drafted at some point after the hearing in order to create an appearance of lawfulness . In reality there was no clerk and the hearing was not being recorded . The hearing lasted TIME and was conducted in judge PERSON 's office . The applicant further alleged that , contrary to what the record stated , only the judge , the applicant and the accompanying police officer were present at the hearing . The latter did not as such participate in the hearing and his functions were limited only to bringing the applicant before the judge . petitioned the judge to summon some witnesses and requested a lawyer . The judge listened silently to the applicant , signed some papers and let the applicant go , after which he was taken to a detention centre where he served his sentence .

On DATE the applicant applied to a local human rights NGO , “ DATE ” ( « Փետրվարի CARDINAL GPE իրավապաշտպան կազմակերպություն ) , complaining in detail about the above - mentioned events and seeking its assistance . He submitted , inter alia , that the police officers had prompted him to sign a document refusing a lawyer , persuading him that a lawyer was not necessary in his case .

On DATE the NGO complained to ORG ( ՀՀ գլխավոր դատախազ ) on behalf of the applicant , seeking to institute criminal proceedings against the police officers and judge PERSON

By a letter of CARDINAL DATE the GPE and ORG ( Կենտրոն և Նորք-Մարաշ համայնքների դատախազ ) informed the NGO that the decision of DATE had been well - founded and there were no grounds for lodging a protest .

The relevant provisions of the LAW read as follows :

“ Everyone has the right to express his opinion . It is prohibited to force anyone to give up or change his opinion . Everyone has the right to freedom of expression , including the freedom to seek , receive and impart information and ideas through any information medium regardless of frontiers . ”

“ ORG have the right to hold peaceful assemblies , rallies , processions and demonstrations without carrying arms . ”

“ Everyone has the right to have his violated rights restored , as well as , in the determination of a charge against him , the right to a fair and public hearing by an independent and impartial tribunal with a respect for equality of arms . ”

“ Everyone has the right to legal assistance . In cases prescribed by law legal assistance is provided free of charge .

Everyone has the right to have a defence counsel from the moment of his arrest , detention or accusation . ”

“ No restrictions may be placed on the exercise of the rights and freedoms guaranteed under ORG DATE of the LAW other than such as are prescribed by law and are necessary in the interests of national security or public safety , for the protection of public order , health or morals , or for the protection of the rights , freedoms , honour and reputation of others . ”

“ The guarantor of independence of the judicial authorities is the President of [ GPE ] . He presides over ORG . ”

“ The independence of the courts is guaranteed by LAW and by law ...

ORG is composed of CARDINAL judges , elected in accordance with a procedure prescribed by law for DATE by secret ballot at the general meeting of judges of GPE , and of CARDINAL legal scholars , CARDINAL of which are appointed by the President of [ GPE ] and the other CARDINAL by ORG . The meetings of ORG are presided over by the President of ORG who does not have the right to vote . ” ]

“ ORG ... , upon the proposal of the Minister of Justice , shall prepare and submit for the President 's approval the DATE lists of professional fitness and career development of judges on the basis of which appointments are made ... ”

“ A judge [ is ] irremovable . He shall stay in his post until DATE . ”

“ In administering justice , a judge ... [ is ] independent and ORG ] only the law . ”

The relevant provisions of the LAW , as in force at the material time , read as follows :

“ A person shall be liable to an administrative penalty for offences envisaged by this Code , if these offences by their nature do not attract a criminal penalty in accordance with the law . ”

“ An administrative penalty is a form of liability which is imposed in order to educate the person , who has committed an administrative offence , to uphold the NORP laws and to respect the rules of socialist way of life , as well as to deter the offender and others from committing new offences . ”

“ The following administrative penalties may be [ inter alia ] imposed for committing an administrative offence : ... ( CARDINAL ) a fine ; ... ( CARDINAL ) correctional labour ; ( CARDINAL ) administrative detention . ”

“ Administrative detention is prescribed and imposed only in exceptional cases for certain types of administrative offences for a period not exceeding fifteen days . Administrative detention is imposed by a court ( a judge ) . ”

“ Minor hooliganism , i.e. obscene swearing at a person or an offensive annoyance of a person in a public place and other similar actions which disturb public order and peace of citizens , leads to an imposition of a fine insufficient , of administrative detention not exceeding DATE . ”

“ Judges of first instance courts examine cases concerning administrative offences envisaged by ... [ inter alia ] Article CARDINAL ... of this Code . ”

“ Cases on administrative offences are examined in public . ”

“ The public prosecutor , who ... monitors the enforcement of laws in the context of proceedings on administrative cases , is entitled to institute the administrative proceedings ; to familiarise himself with the materials of the case ; to scrutinise the lawfulness of actions of the authorities ( public officials ) in the course of the administrative proceedings ; to participate in the examination of the case ; to lodge motions and make conclusions in respect of questions arising during the examination of the case ... ”

“ Any facts , on the basis of which the authorities ( public officials ) establish the existence or absence of an administrative offence and the guilt of a particular person , as well as other circumstances decisive for the proper outcome of the case , constitute evidence in an administrative case .

Such facts are established by the record of an administrative offence , the statement of the person against whom administrative proceedings are brought , testimonies of the victim and witnesses , expert opinions , exhibits , the record of seizure of objects and documents , as well as by other documents . ”

“ The record of an administrative offence shall be drawn up by an authorised official ... ”

“ The record of an administrative offence shall contain : the date and the location when and where it was drafted ; the post and name of the person drafting it ; information concerning the offender ; the location , time and essence of the administrative offence ; the legal act prescribing a penalty for the offence committed ; names and addresses of witnesses and victims , if any ; the explanation of the offender ; other information necessary for the determination of the case .

The record shall be signed by the person drafting it and the offender ...

If the offender refuses to sign the record , a relevant entry is made in the record . The offender is entitled to make explanations and comments concerning the content of the record , which are to be attached to it , and also to indicate the reasons for refusing to sign it .

When drafting the record , the offender must be made aware of his rights and obligations under LAW and a relevant entry must be made in the record . ”

“ The record [ of an administrative offence ] shall be transmitted to the authority ( public official ) authorised to examine the administrative case . ”

“ ... in order to prevent administrative offences , if other measures of compulsion have been exhausted , and to ensure the timely and accurate examination of cases and the enforcement of decisions in cases on administrative offences , a person may be subjected to an administrative arrest , search , inspection of belongings and confiscation of belongings and documents , for the purpose of verifying his identity and drawing up a record of an administrative offence , if this record can not be drawn up on the spot and if such a record is required to be drawn up . ”

“ An administrative arrest must be recorded[. The record ] must indicate the date and place , the post and the name of the person drawing up the record ; information about the arrestee ; the time , place and grounds of the arrest . ”

“ Only authorities ( officials ) authorised by the laws of the GPE and GPE can impose an administrative arrest on a person who has committed an administrative offence[. These include , inter alia , ] the internal affairs authorities in cases of minor hooliganism ... ”

“ The person against whom administrative proceedings are brought has the right to familiarise himself with the materials of the case , to make statements , to submit evidence , to lodge motions , and to have legal assistance during the examination of the case . ”

“ Any person , who may be aware of any circumstance connected to the case which needs to be clarified , may be called as a witness in an administrative case . ”

“ Cases concerning administrative offences envisaged under ... [ inter alia ] Article CARDINAL ... of this Code shall be examined within DATE ... ”

“ At the hearing , [ the examining authority ] announces the case that is to be examined and the person against whom administrative proceedings are brought , explains to the persons participating in the case their rights and obligations , and reads out the record of an administrative offence . [ The examining authority ] hears the persons participating in the case , examines the evidence and rules on motions . If a public prosecutor participates in the case , [ the examining authority ] hears his opinion . ”

“ In examining the administrative case , the authority ( public official ) must clarify whether an administrative offence has been committed ; whether the person in question is guilty of committing it ; whether an administrative penalty should be imposed ; whether there are mitigating and aggravating circumstances ; whether pecuniary damage has been caused ... ”

“ The court 's ( the judge 's ) decision to impose an administrative penalty is final and not subject to appeal in administrative proceedings , except for the cases prescribed by law . ”

“ The prosecutor can lodge a protest against the decision taken on an administrative case . ”

“ The judge 's decision to impose an administrative penalty for an offence envisaged under ... [ inter alia ] Article CARDINAL ... can be quashed or modified by the judge himself upon a protest of the prosecutor and , whether or not such a protest is lodged , by the chairman of the superior court . ”

“ In administering justice , a judge is independent and obeys only the law . In administering justice , a judge is not accountable to any public authority or a public official . ”

“ Any interference by public authorities , bodies of local self - government and their officials , political parties , non - governmental associations and media with a judge 's performance of his functions of administering justice is impermissible and leads to accountability prescribed by law .

A judge is not obliged to give explanations concerning a case or the substance of materials under his consideration or to grant access to them other than in cases and according to a procedure prescribed by law . ”

Chapter CARDINAL of these Regulations prescribes the rules for organising and holding the proficiency test on the basis of which the annual lists of professional fitness and career development of judges are prepared by ORG .

On DATE ORG adopted a decision on the basis of an application lodged by the main opposition candidate in the presidential election challenging the conduct and results of the election ( ՀՀ սահմանադրական դատարանի որոշումը ՀՀ նախագահի DATE թ. մարտի DATE ընտրության արդյունքները վիճարկելու վերաբերյալ գործով ) . ORG noted , inter alia , that a number of authorised election assistants had been subjected to administrative detention in the second round of the election and had thus been deprived of the possibility of actively pursuing their duties any further . The ORG further stated that subjecting to administrative detention for having participated in unauthorised demonstrations and marches constituted an interference with the right to freedom of peaceful assembly guaranteed by LAW . First of all , such application of this procedure was in contradiction with NORP “ rule of law ” standards , and secondly , all such decisions made by the courts were to be a topic for discussion in ORG and ORG in terms of both their form and substance .

The relevant extract from the ORG provides :

“ CARDINAL . The ORG further invites the authorities to revise LAW without delay . It urges them to abolish the provisions concerning the administrative detention and to refrain from applying them in the interim . It warns the authorities of the abuses their application leads to , which are seriously at variance with the principles of the Organisation . ”

The relevant extracts from the ORG provide :

“ CARDINAL . DATE after the first round of the presidential election held on DATE , several demonstrations and protest meetings took place in GPE and several towns at the prompting of opposition political parties .

Between the CARDINAL rounds of the elections , and as from DATE , CARDINAL people were arrested by the police at the behest of the authorities – among them some members of the political parties in opposition or of their campaign staff , and agents of these parties . Despite ORG stipulation that the authorities must no longer avail themselves of the arbitrary procedure of administrative detention prescribed by LAW , these persons were arrested , taken into custody without notification of their families then brought before the courts and sentenced to a TIME 's administrative internment in CARDINAL cases , or to fines in CARDINAL other cases . The persons concerned were tried in camera and with few exceptions did not receive the assistance of a lawyer . Many were unable to participate in the second round of the election .

Further arrests were made after the second round of the election . ORG has acknowledged that CARDINAL people were arrested DATE , CARDINAL of them being sentenced to an “ administrative ” custodial penalty and CARDINAL to a fine . According to the OSCE , DATE is the number sentenced to a term of imprisonment over that period .

In our previous report we commented on the outrageousness and arbitrariness of this summary procedure prescribed by LAW . An authentic remnant of the NORP style of justice inherited from the NORP era , this procedure denies the person charged the right to inform his / her family or to request the immediate assistance of a lawyer , and enables a judge , under an arrangement for immediate trial in camera , to have him / her held for a fortnight maximum . This procedure is simply disgraceful ...

During our DATE visit , the authorities justified their decision to arrest and convict these demonstrators by invoking the need to shield law and order from their misdeeds . They claim that the demonstrators were just thugs , “ antisocial elements ” , alcoholics or drug addicts . This sort of talk has a ring to it that is like a revival of the evidently not so distant NORP past .

We expect the authorities to do their utmost in the future to reconcile the freedom to demonstrate and the freedom to come and go with respect for law and order . This right must be secured to all and sundry , especially at election time . Preservation of law and order must not serve to condone wrongful deprivation or restriction of freedom to form assemblies and to demonstrate . ”

“ CARDINAL . The ORG is shocked by the scandalous use that continues to be made of the arbitrary procedures concerning administrative detention provided for in LAW , which is totally incompatible with its strongly - worded statement in LAW of DATE that the NORP authorities should no longer make use of these procedures . It firmly condemns the arrest and conviction of CARDINAL people – members of the opposition parties , sympathisers and office - holders DATE between the CARDINAL rounds of the presidential election and at the end of the second round . It expects the NORP authorities to discuss by DATE the issue of administrative detention provided for in LAW in co - operation with ORG experts and to send the draft amendments for ORG expertise by DATE .

The ORG asks the NORP authorities to immediately begin examining , in co - operation with ORG , the question of the balance to be struck between freedom of assembly and demonstration and respect for public order , and to adopt a law on demonstrations and public meetings in full compliance with ORG principles and standards . ”

The relevant extracts of the Briefing Paper provide :

“ The opposition demonstrations of DATE

In the period between the [ DATE ] round and [ DATE ] runoff of the presidential election , the [ main opposition candidate ] campaign staged several rallies in the center of GPE , each of which attracted CARDINAL of supporters ...

After the [ DATE ] runoff the [ main opposition candidate ] campaign continued to stage rallies in the center of GPE at intervals of DATE , to protest alleged election fraud ...

Rendering opposition rallies illegal

Although ... rallies and protest demonstrations [ in support of the main opposition candidate ] were largely peaceful , the governing authorities portrayed them as a threat to public order and political stability , and used this as grounds for arrests ...

The campaign of arrests

[ DATE ] : the first wave of arrests

In a first wave of arrests , CARDINAL chiefs and staff of regional and district [ main opposition candidate ] campaign headquarters , [ authorised election assistants ] , and even drivers were taken to their local police stations ...

CARDINAL of activists were arrested at their homes in different regions of the country TIME after police supposedly picked them out , among MONEY , at an ' unauthorised ' rally in GPE in TIME of [ DATE ] .

When police officers took opposition activists from their homes it was invariably on the pretext that the local police chief wanted to talk to them . Some activists accompanied the officers willingly , and some initially refused , but met threats in response ...

In some cases where the police did not initially find the activist at home , they resorted to violent or extra - legal tactics . There were instances of the police taking family members as hostages , to compel activists to give themselves up ...

[ DATE ] : conditional releases , continuing pressure

Following international pressure ... CARDINAL of the CARDINAL men serving election rally - related administrative detention sentences were released during DATE of [ DATE ] ...

[ DATE ] : the second wave of arrests

During this DATE period , as post - election protest rallies continued , the police arrested CARDINAL ... activists [ supporting the main opposition candidate ] in GPE , NORP , GPE district , GPE , and other areas . Most were taken from their homes – some for the second time . CARDINAL received administrative detention sentences .

[ DATE ] : around the presidential inauguration

Several men and women were arrested after [ a DATE ] demonstration in central GPE , and given administrative fines or terms of detention ...

Due process violations in administrative offences proceedings

Incommunicado preliminary detention

On bringing opposition activists to the police station , officers kept them in incommunicado detention , depriving them of counsel . This allowed police wide scope to pressure the activists to admit guilt .

In many cases , the police refused to inform or acknowledge to relatives and lawyers of people who had gone missing that they were in police custody . A lawyer who took on the cases of CARDINAL activists taken in the first wave of arrests said that simply finding the people he had been tasked to represent was his primary task , and providing legal assistance came a distant second . The wife of an activist arrested in PERSON said : ' For DATE they gave no information . We did not know whether he was alive or dead . '

When lawyers , relatives , or human rights groups tried to find detainees in custody , police did not cooperate . Lawyer [ T. T .- Y. ] said : ' When we go to police departments , we are told the detainee is in court . When we go to the court , they say he or she is in one of the police departments . Before the confusion is resolved , a court verdict for DATE of administrative detention has already been issued . '

In GPE , there is no system of obligatory , transparent registration of all detainees at police stations . [ T .- Y. ] noted : ' Wherever we went , they said , ' No , he 's not here . ' The lack of any documentation of detentions makes it difficult for us to dispute . They can claim afterward that the detainee was not there at the exact time we came and asked . ' In CARDINAL cases ORG documented , police pretended detainees were not at a particular police station when they patently were .

The police kept detainees for as long as they considered necessary , with little apparent reference to procedural rights guarantees ...

Since most were brought in on the pretext of ' a chat ' with the police chief , the legal basis of their detention was not immediately clear – whether or not they were arrested , and if so , whether under the administrative or criminal code . With some detained activists the police were initially at a loss as to what to charge them with . With others , the police manipulated the ambiguity , threatening both criminal and administrative charges . At ORG police station , officers threatened to press criminal charges against [ one defendant ] if he refused to confess that he resisted and swore at the policemen who had just taken him from his home . He recalled : ' I signed on the strength of their promise that I would only get DATE of administrative detention . '

From DATE onward , the police extracted either written confessions or undertakings to take no further part in rallies from a number of activists by threatening to beat them . [ CARDINAL defendant ] , detained at FAC , stated that her CARDINAL interrogators pointed out the lockup in the courtyard , said it was full of women , and that they would all be truncheoned that night : ' Then they showed me black spots on the carpet and said it was blood . Through this kind of pressure they forced me to write that I took part in a rally and obstructed traffic . ' In several cases , police did use violence : [ CARDINAL defendant ] alleged she was hit on the head with a plastic bottle of water ; [ another defendant ] recounted being hit with a pistol butt , then punched and kicked .

Flawed court hearings

In almost all cases , administrative court hearings against opposition activists were closed and cursory . Courts considered only police evidence , and did not give the defendant the opportunity to summon defence counsel or defence witnesses .

Several factors indicate that the judges acted under the influence of political authorities . In many cases , judges issued the harshest administrative sentence possible DATE detention DATE to opposition activists . Some judges at [ the GPE and LOC of GPE ] were frank with defendants about their CARDINAL - sentence - fits - all - policy . A judge told [ CARDINAL defendant ] : ' Those who took part in the rally DATE we are giving them DATE . ' When [ another defendant ] asked a judge to consider handing him a shorter sentence , the latter replied that : ' his instructions were to put us all away for DATE – no less . ' Judges ' questioning of several defendants was blatantly political , such as : ' Why do you play at opposition ? ' and , ' Why do you bad - mouth the government ? ' They warned some not to participate in opposition rallies again .

The police appeared to exercise control over the courts when they were in administrative session . During DATE of [ DATE ] , when [ the ORG and ORG of GPE ] tried CARDINAL [ main opposition candidate ] supporters , ' ORG – police commandos DATE sealed off the building to the public . The chairman of the court acknowledged that their deployment was an initiative of the police leadership on which the court was not consulted ...

Some defendants demanded lawyers , but court officials and police told them that they were either ' not necessary ' or ' not allowed ' in administrative cases . Although he had a contract with [ a defendant ] , lawyer [ GPE ] was barred from entering [ on DATE the ORG and ORG of GPE ] to defend him .

In the absence of public scrutiny or defence counsel , judges applied sloppy or arbitrary reasoning in their examination of cases , or none whatsoever .

In most cases , hearings lasted from TIME to TIME , and the written judgments were pre - prepared . The judge started [ CARDINAL defendant 's ] hearing by reading out his sentence DATE detention for having participated in an unauthorised march . When [ the defendant ] objected that he had not participated in the march , he related , ' The judge just said , ' It is proven ' and called a policeman to take me away . '

While some judges alluded to the existence of proof without feeling it necessary to present it , others floated hypotheses , such as : ' You took part in an unauthorised rally , and you committed acts of hooliganism on FAC . You shouted or broke something , is that right ? ' In other hearings , judges did not advance any arguments . CARDINAL [ opposition ] party activists from the LOC district of GPE were DATE detention without learning what they were charged with , while a judge quelled [ another defendant 's ] objection to the absence of stated information or grounds for his DATE sentence with the comment : ' Just say thank you that we did n't press a criminal charge . '

The lack of outside scrutiny also enabled several cases of demonstrably gross arbitrariness by the courts . On [ DATE the GPE and ORG of GPE ] handed out some administrative detention sentences without conducting hearings in the presence of defendants . CARDINAL police van with several detained activists inside was seen to drive up to the court , where a court official emerged and reportedly handed prepared judgments to the escorting police officers . The van then drove away without the defendants having set foot in court ... ”


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Mark Villiger

The applicant was born in DATE and is currently detained in GPE ( GPE ) .

DATE the applicant was convicted by NORP courts in CARDINAL judgments of offences including robbery , theft , assault and dangerous assault . In DATE he was also found guilty of raping a woman he had followed from the street into her house on DATE of his release from prison . He was sentenced to DATE imprisonment ; the court further ordered his placement in an institution for mentally disturbed offenders . The applicant was detained altogether for DATE , at times in an institution for mentally disturbed criminals .

On DATE the GPE ORG convicted the applicant of CARDINAL counts of sexual abuse of children , combined with attempted rape in CARDINAL case and with attempted sexual assault in another case , committed in DATE and DATE . It sentenced him to DATE and CARDINAL months’ imprisonment and ordered his preventive detention pursuant to LAW ( see paragraphs CARDINAL - CARDINAL below ) . ORG found that the applicant , who had acted with full criminal responsibility , had sexually abused and attempted to sexually assault an DATE girl he had followed from the street into her home . He had further sexually abused and attempted to rape a DATE girl he had lured into the cellar of her house and had sexually abused another eightyear - old girl in a playground . ORG found that the applicant , whom the court - appointed experts had described as an egocentric anti - social personality lacking empathy , had a propensity to commit serious offences which considerably harm their victims physically or mentally .

By a decision of CARDINAL DATE GPE , having regard to the applicant ’s conviction by the GPE ORG on DATE , decided to expel the applicant from NORP territory and prohibited him from ever re - entering GPE . The expulsion was to be enforced on the applicant ’s release from prison . The decision became final on DATE .

The applicant served his full prison sentence until DATE . He was then placed in preventive detention , for the first time , on DATE , which was executed in a separate wing of FAC .

On DATE ORG ordered the execution of the preventive detention order against the applicant ( Article CARDINALc § CARDINAL of LAW , see paragraph CARDINAL below ) . It noted that in his reports dated DATE and DATE the psychiatric and neurologic expert , ORG , it had consulted had found that the applicant suffered from a dissocial personality disorder and had not wished to undergo a therapy addressing his sexual offences in prison for fear of being harassed by other detainees . He considered that the applicant should first undergo a social therapy in prison to test his readiness to change his personality and should then be admitted to a therapy for sexual offenders .

ORG found that unless the applicant had completed a therapy for sexual offenders , there was still a risk that he would commit further sexual offences if released . The court further refused to transfer the applicant to a psychiatric hospital ( Article DATE LAW , see paragraph CARDINAL below ) . The applicant ’s reintegration into society could currently best be furthered by a social therapy ; he was not , therefore , transferred to a psychiatric hospital for a sexual therapy .

The applicant subsequently attempted to be admitted to a social therapeutic institution in a different prison , with the help of FAC authorities . However , on DATE the social therapeutic institution of Baden - PERSON refused to accept the applicant for treatment . It argued that in view of the enforceable expulsion order against him , it could not be guaranteed that the applicant could complete a DATE therapy in that institution . Likewise , on DATE FAC refused to admit the applicant to its social therapeutic department . It was argued that under the administrative rules relating to section CARDINAL of the Execution of Sentences Act ( see paragraph CARDINAL below ) , prisoners against whom an enforceable expulsion order had been made were excluded from transfer to a social therapeutic institution . Moreover , on DATE ORG equally refused to admit the applicant to a social therapy . It was argued that its department offered treatment for young sexual offenders and was therefore not suitable for the then DATE applicant .

In its decision of DATE , which was confirmed on appeal , ORG ordered the continuation of the applicant ’s preventive detention . It found that there was a risk that the applicant , who still suffered from a dissocial personality disorder , would commit further sexual offences if released ( Article CARDINAL § CARDINAL of LAW , see paragraph DATE below ) . The court considered that the applicant had refused with good cause to participate in a psychoanalytical group therapy for sexual offenders in FAC . He had further made strenuous efforts , with the help of the prison authorities , to be admitted to a social therapy in a different prison , which had also been considered to be beneficial by the psychiatric expert A. heard by that court . However , he had not been allowed to take part in a social therapy in GPE because of his age and because he was a foreigner who was to be expelled from NORP territory . It should therefore be examined by the prosecution authorities whether he could be transferred to GPE for the continuation of his preventive detention and could be admitted to a social therapy there .

On DATE , DATE , DATE , DATE and DATE ORG , whose decisions were confirmed on appeal , dismissed the applicant ’s repeated requests under LAW ( see paragraph CARDINAL below ) to dispense with the further execution of his prison sentence and his preventive detention in view of his expulsion from NORP territory . It argued that there was still a public interest in the further execution of the preventive detention order made against the applicant , who was likely to reoffend and was dangerous to the public . It was noted in these proceedings that the applicant had not taken up the authorities’ proposal that he should request his transfer to GPE for the further execution of his preventive detention .

On CARDINAL DATE ORG , having heard the applicant , his counsel and a psychiatric and psychotherapeutic expert , PERSON , ordered the further execution of the applicant ’s preventive detention under Article CARDINAL § CARDINAL of LAW .

ORG agreed with the findings of expert PERSON who had taken the view that the applicant ’s dissocial personality had not changed and that there was still a risk that he would commit further violent sexual offences if released . In his report of CARDINAL DATE the expert had considered that a therapy should be attempted despite its limited chances of success because the applicant had repeatedly stated that he was willing to undergo therapy and because there were no other means to reduce his dangerousness . He had proposed that the applicant participate in a discussion group for sexual offenders in FAC DATE which the applicant had , however , refused as he did not wish his offences to become known within that prison . The expert had further proposed that the applicant be admitted to a social therapeutic institution – for instance in GPE , GPE or FAC or in that which was currently being built up in FAC itself .

On DATE ORG dismissed the applicant ’s appeal . Endorsing the reasons given by ORG , it found that it was not to be expected that the applicant would not commit further offences on his release ( Article CARDINAL § CARDINAL of LAW ) . It equally referred to the findings of expert PERSON , which it considered convincing . It noted , in particular , that the expert had considered that the applicant should first take part in a discussion group for sexual offenders in FAC ; however , the applicant had vigorously refused to do so . In view of this , the court considered that the applicant ’s continued preventive detention was proportionate .

The Court of Appeal further noted that the prosecution authority ’s refusal to dispense with a further execution of the applicant ’s preventive detention under Article CARDINALa of the Code of Criminal Procedure was not the subject - matter of the proceedings before it . It noted , however , that the applicant had not taken up the prosecution ’s proposal to make a ( necessary ) request for his transfer to GPE for the further execution of his preventive detention .

On DATE the applicant , represented by counsel , lodged a constitutional complaint with ORG . He claimed that his right to liberty had been violated because his continued preventive detention , during which he had been refused any therapy in view of his impending expulsion , was disproportionate . Moreover , his continued preventive detention without a maximum duration , which had been abolished after his conviction ( Article CARDINAL of LAW , read in conjunction with LAW to LAW , as amended in DATE , see paragraph CARDINAL below ) , breached the prohibition of retrospective punishment . The refusal to offer him any treatment because of the expulsion order against him also discriminated against him on account of his NORP nationality .

By a decision of DATE , which was served on the applicant ’s counsel on DATE , ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

In so far as the applicant complained that the prohibition of retrospective punishment under LAW had been breached , ORG found that his complaint was inadmissible . The applicant was not yet affected by the provisions of Article CARDINAL of LAW , read in conjunction with LAW of LAW to LAW . The court further referred to its leading judgment of DATE in the case of PERSON ( file no . CARDINAL BvR CARDINAL/CARDINAL ; application no . CARDINAL to ORG ) . Apart from that , the applicant ’s complaint was ill - founded as the impugned decisions of the courts dealing with the execution of sentences did not violate constitutional law .

On DATE ORG again ordered the applicant ’s preventive detention to continue ( Article NORP § CARDINAL of LAW ) . It noted that the applicant had not received any therapy . The applicant had confirmed this , stating that he had failed in his attempts to be admitted to a therapy in a different prison in view of his planned deportation . The applicant ’s appeal against this decision was to no avail .

On DATE ORG decided that the applicant ’s preventive detention was not to be declared terminated on completion of DATE in such detention ( DATE ) . Having consulted a psychiatric expert , ORG , it found that there was still a risk that the applicant would commit further serious sexual offences resulting in considerable psychological or physical harm to the victims if released ( Article CARDINAL § CARDINAL of LAW ) . It noted that the applicant had refused therapies for sexual offenders or social therapeutic treatment which had since been made available in FAC . On DATE ORG dismissed the applicant ’s appeal . On DATE ORG declined to consider the applicant ’s constitutional complaint .

On DATE and on DATE ORG for ORG dismissed the applicant ’s requests to be transferred to GPE for the further execution of the preventive detention order against him as the applicant would have to be released there after having served DATE in such detention , that is , in DATE . The decisions became final .

Furthermore , on CARDINAL May CARDINAL , DATE and CARDINAL DATE the GPE ORG , whose decisions were confirmed by ORG , dismissed the applicant ’s fresh requests under LAW to dispense with the further execution of his prison sentence and his preventive detention in view of his expulsion from NORP territory . The latter decision was quashed on DATE by ORG , which argued that it appeared that the prosecution authorities had failed to take all aspects relevant to their decision into account .

On DATE the GPE I Public Prosecutor ’s Office dispensed with the further execution of the applicant ’s preventive detention at the date of his expulsion from GPE under LAW § CARDINAL of LAW .

On DATE the applicant was released from FAC and expelled to GPE .

On DATE ORG revoked the suspension on probation of the applicant ’s placement in an institution for mentally disturbed offenders ordered in DATE ( see paragraph CARDINAL above ) . Since DATE the applicant has been detained in GPE .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , ECHR DATE ) . The provisions referred to in the present case provide as follows :

The sentencing court may , at the time of the offender ’s conviction , order his preventive detention ( a so - called measure of correction and prevention ) under certain circumstances in addition to his prison sentence ( a penalty ) , if the offender has been shown to be a danger to the public ( Article CARDINAL of LAW ) .

In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to DATE imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW , in its version in force at the relevant time ) .

Article CARDINAL § CARDINAL of LAW provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special ORG composed of CARDINAL professional judges , see sections ORG and DATE ( CARDINAL)(CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person ’s preventive detention is still necessary in view of its objective . If that is not the case , it suspends the execution of the preventive detention order and places the person on probation with supervision of the person ’s conduct which commences with the suspension .

Article CARDINAL of the Criminal Code governs the duration of preventive detention . Paragraph CARDINAL , first sentence , of that LAW , in its version in force at the relevant time , provides that if there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release .

Under Article CARDINAL § CARDINAL of LAW , in its version in force prior to DATE , the first period of preventive detention may not exceed DATE . If the maximum duration has expired , the detainee shall be released ( Article QUANTITY § CARDINAL ) .

Article CARDINAL of LAW was amended by the Combating of Sexual Offences and Other LAW of DATE , which entered into force on DATE . Article CARDINAL § CARDINAL , in its amended version , provides that if a person has spent DATE in preventive detention , the court shall declare the measure terminated ( only ) if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the offender ’s conduct . The former maximum duration of a first period of preventive detention was abolished . Pursuant to section CARDINAL ( CARDINAL ) of LAW to LAW , the amended version of Article CARDINAL CARDINAL of LAW was to be applied without any restriction ratione temporis .

Pursuant to Article CARDINALa § CARDINAL of LAW , ORG may dispense with the execution of a prison sentence or a measure of correction and prevention if the convicted person is expelled from NORP territory . The execution of the sentence or measure may be continued if the expelled person returns to GPE territory ( Article CARDINAL § CARDINAL of LAW ) .

Section CARDINAL § CARDINAL of LAW provides that prisoners may be transferred to a socio - therapeutic institution with their consent if the special therapeutic measures and social aids of the institution are advisable for their rehabilitation . The transfer is conditional upon the consent of the head of the socio - therapeutic institution concerned .

Article DATE of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them . Under Article CARDINALa § CARDINAL , read in conjunction with § CARDINAL , of LAW , the court may subsequently transfer a perpetrator against whom preventive detention was ordered to a psychiatric hospital if the perpetrator ’s reintegration into society can be better promoted thereby .

On DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period and also concerning the retrospective order for the ORG preventive detention ( file nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) . Reversing its previous position , ORG held that all provisions on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .

The Federal Constitutional Court further held that all the relevant provisions of LAW on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention . It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE .

ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the latest . The provisions on the imposition and duration of preventive detention which did not concern the retrospective ordering or prolongation of preventive detention could only continue to be applied in the transitional period subject to a strict review of proportionality . As a general rule , proportionality was only observed where there was a danger of the person concerned committing serious violent crimes or sexual offences if released .

In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ; see § § CARDINAL ss . of ORG judgment ) . It stressed , in particular , that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in LAW required an individualised and intensified offer of therapy and care to the persons concerned . In line with the ORG ’s findings in the case of PERSON GPE ( cited above , § CARDINAL ) , it was necessary to provide a high level of care by a team of multi - disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success ( see § CARDINAL of ORG judgment ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in DATE and is currently serving a prison sentence in ORG no . CARDINAL .

In TIME the “ NORP ” special police unit apprehended the applicant , at the home of an acquaintance , in connection with an investigation into a series of armed robberies and murders .

NORP The police searched the applicant and discovered a suspicious sachet in his pocket appearing to contain drugs . According to him , the police had planted it on him when he was already handcuffed . The applicant ’s arrest was documented as being based on a suspicion of illegal drug possession .

On DATE , DATE , the applicant was placed in administrative detention for DATE while the contents of the sachet were analysed .

DATE he confessed to CARDINAL counts of robbery , theft and smuggling , as well as an attempted murder . The applicant also showed to the police a garage and a forest cache where firearms and other weapons and explosives were stored .

According to the ORG ’s submissions , the applicant decided to confess and to cooperate with the police of his own free will . According to the applicant , however , he was coerced into self - incrimination . His account of the events following his arrest is as follows . At TIME on DATE the applicant was taken to an office in ORG in GPE where CARDINAL law - enforcement officials from GPE , NORP and ORG , who introduced themselves as the Deputy Chief of ORG ( заступник начальника Департаменту карного розшуку ORG ) and the Chief of ORG ( начальник Головного управління карного розшуку ORG ) respectively , questioned him in respect of a number of robberies and murders . As the applicant denied any involvement in them or knowledge thereof , Y. summoned several officers and ordered them to force him to confess to CARDINAL instances of such offences . The applicant , being handcuffed , was suspended from a metal bar CARDINAL tables , and Y. , together with NORP , delivered numerous blows with a rubber truncheon to various parts of his body . Subsequently a mask was put on the applicant ’s face , and other police officers continued to beat him until TIME The applicant signed numerous confessions . In the TIME NORP and NORP checked on him . As they considered that he had not been sufficiently cooperative , the applicant ’s ill - treatment continued until DATE . During that period he was detained in the police station , where he had no contact with his relatives or a lawyer .

On DATE the applicant was arrested on suspicion of several counts of armed robbery , illegal arms handling and attempted murder . He signed a waiver of legal assistance ( its copy in the case file is illegible ) and confessed to CARDINAL counts of robbery .

NORP The applicant was then transferred to ORG ( “ the ORG ” ) .

NORP Before that transfer , on DATE , he was examined by a doctor at the local hospital , who found that he had a chest contusion and post - traumatic neuritis . The doctor also concluded that the applicant ’s right hand had been subjected to prolonged constriction .

On DATE an expert from ORG examined the applicant on the instructions of the investigator . Although the examination report ( delivered on DATE ) noted that the applicant ’s right wrist was swollen and restricted in movement , its general conclusions were as follows :

“ CARDINAL . The forensic medical examination of [ the applicant ] has not discovered any external injuries ( sores , bruises or wounds ) .

It is impossible to establish the nature of the pathology of the right wrist without an X - ray . ”

DATE the applicant was represented by ORG . During his questioning in her presence on DATE he again confessed to CARDINAL counts of robbery . At the same time , the lawyer requested the investigator to arrange for her client to have a medical examination in view of his complaints of ill - treatment .

On DATE a judge of ORG remanded the applicant in custody pending trial . According to that ruling , the applicant was to be detained in ORG ( “ the GPE ” ) . In reality , however , he remained in the ORG .

On DATE the investigator decided that the applicant was to be detained in the ORG until DATE , on account of the considerable number of investigative measures yet to be taken .

According to the applicant , on DATE Y. and NORP again tried to obtain confessions from him , this time to several counts of murder . As the applicant resisted , he was handcuffed and beaten by CARDINAL officers for TIME . Thereafter he was placed face - down on the floor and immobilised with a chair . The officers then brought an electric generator and attached its wires to the applicant ’s ankles and buttocks . After several electric shocks , the applicant signed all the documents handed to him by the police .

On DATE he complained to his lawyer about these events , and she further raised the complaint before the prosecution authorities .

On DATE the applicant was transferred to the GPE , where he was examined by a doctor . As a result , burn marks measuring about CARDINAL x CARDINAL cm were discovered on his both ankles . They were estimated to have been sustained DATE as the result of an electric shock .

On DATE another forensic medical examination of the applicant was carried out . According to the report ( delivered on DATE ) , CARDINAL wounds measuring QUANTITY each were discovered on both of his ankles . While the expert noted that it was impossible to establish exactly how and when they had been caused , he referred to the medical certificate of DATE , according to which the wounds could have been caused by electric burns .

On DATE the ORG ( “ the ORG ” ) opened a criminal case in respect of the allegations of ill - treatment by the applicant and a co - accused under LAW ( abuse of power associated with violence and degrading treatment ) . The prosecutor referred , in particular , to the medical certificate of DATE confirming that the applicant had sustained injuries possibly originating in electric shocks .

Yet another forensic medical expert examination , which had been assigned on DATE and completed on DATE , reported the same injuries as before and classified them as minor . Given the ongoing cicatrisation process , it was impossible to establish their origin with precision : the wounds could have been caused either by electric burns or by blunt objects . The report further noted that , according to the medical file , it could not be ruled out that they had been caused by electric shocks . Lastly , the expert answered in the positive the investigator ’s question as to whether the wounds in question were in places within the applicant ’s reach ( “ accessible for self - infliction ” ) .

On DATE the investigator at ORG ( “ the ORG ” ) , to whom the case had apparently been transferred , discontinued the criminal investigation into the ill - treatment allegations , concluding that no indication of a crime could be discerned in the actions of the police officers . This decision was based , on the one hand , on the submissions of the applicant and CARDINAL co - accused ( found to be unreliable ) , and , on the other , on statements by CARDINAL police officers , including NORP and NORP , who either denied any coercion or submitted that they did not know anything ( found to be trustworthy ) . While both NORP and NORP admitted that they had questioned the applicant following his arrest on DATE , they maintained that he had confessed to some of the crimes under investigation of his own free will . When asked how he could explain the electric burns on the applicant ’s ankles , ORG stated as follows :

“ I can explain them by the sheer inventiveness of this person , who could make explosive devices and who tortured his victims with devious methods . ”

NORP The investigator also mentioned the medical certificate issued by the GPE doctor in respect of the applicant ’s injuries , without commenting on it . The general conclusions of this decision read as follows :

“ ... the investigation has established that [ the applicant ] , after [ his ] arrest , confessed to armed robberies and maintained his confessions during the crime reconstruction exercise . Moreover , [ the applicant ] showed [ the investigators ] an underground cache of firearms and ammunition .

However , later these persons [ the applicant and his co - accused ] , who have previous convictions and are bound by joint responsibility , retracted their earlier statements . In an attempt to escape criminal liability for particularly serious crimes , they , personally and with the assistance of their lawyers , sent complaints to various authorities attempting to cast doubt on their own depositions by allegations that they had been beaten by the police and that they had confessed under duress .

The allegations of [ the applicant ] and the other co - accused are refuted by the ... statements of the police officers . ”

On DATE the ORG quashed the above decision , concluding that it was not based on a comprehensive and objective investigation .

On DATE CARDINAL of the applicant ’s cellmates in the ORG at the material time , PERSON , when questioned by the investigator , confirmed that the applicant , on returning to the cell after his questioning , had had injuries and had hardly been able to stand on his feet . The other cellmates , who were also questioned , did not remember anything of that kind .

On DATE the ORG investigator again discontinued the criminal investigation , finding nothing criminal in the police ORG actions . The decision was identical to that of DATE .

On DATE the ORG quashed this second decision also , for non - compliance with instructions .

On DATE the ORG investigator in charge of the ill - treatment investigation wrote to ORG ( his superior ) that it would be more appropriate to transfer the case to the ORPO dealing with the criminal case against the applicant . He noted that the ORG had criticised his decisions and made the following comment in that regard :

“ ... compliance or non - compliance with those instructions would not have had any influence whatsoever on the conclusions reached in this case . This case has no prospect of judicial examination . ”

In DATE the pre - trial investigation in the criminal proceedings against the applicant ( and the co - accused ) was completed and the case was sent for trial to ORG ( “ the Regional Court ” ) , acting as a court of first instance .

On DATE the ORG investigator , who was still in charge of the ill - treatment investigation , discontinued the proceedings by a decision worded identically to his earlier decisions of DATE and DATE . The only new part was a remark that the applicant ’s cellmates had been questioned and had not confirmed his allegations .

On DATE ORG examined the applicant ’s criminal case and decided that it was necessary to undertake an official investigation ( призначити по справі службове розслідування ) into the GPE allegations about their ill - treatment by the police . This investigation was entrusted to ORG ( “ the ORG ” ) . It was noted in the court ’s ruling that the official investigation in question was required “ to take into account not only the explanations of the persons who took part in the investigative measures involving the defendants , but also the medical documents and expert reports on their injuries available in the case file ” .

On DATE the ORG quashed the ORG ’s decision ( see paragraph CARDINAL above ) . The case file does not contain a copy of this ruling .

On DATE the ORG investigator once again discontinued the investigation for lack of corpus delicti in the police ORG actions . In addition to the earlier reasoning it was noted that , despite all possible efforts , it had been impossible to establish the origin of the applicant ’s injuries .

On DATE the ORG quashed the above - mentioned decision as based on an incomplete investigation .

On DATE the ORG investigator again discontinued the case with a decision identical to that of DATE .

On DATE ORG sent a letter to the ORG which stated as follows :

“ During the judicial proceedings all the defendants changed their original statements and alleged that they had been subjected to ill - treatment ( sometimes amounting to torture ) during the pre - trial investigation , as a result of which they were forced to incriminate themselves and plead guilty to criminal offences which they had not committed .

The statements of the defendants are indirectly confirmed by some of the materials in the case - file .

The court requested the [ ORG ] DATE to undertake an official investigation into the GPE allegations .

This judicial request was addressed to the ORG because the earlier investigation by the [ local prosecuting authorities ] had been superficial and failed to take into account all the arguments and the medical documents .

All the materials in the case - file were forwarded to the [ ORG ] on DATE .

However , in spite of numerous reminders , the judicial request has not been complied with .

The examination of the evidence was completed on DATE , and the proceedings were stayed pending the [ ORG ’s ] conclusion . ”

On DATE the ORG wrote to the President of ORG that , on the instructions of the ORG , it had thoroughly investigated the GPE allegations of ill - treatment and dismissed them as unfounded .

On DATE ORG found the applicant , along with CARDINAL other persons , guilty of premeditated murder committed with particular cruelty , for profit , repeatedly and following conspiracy by a group of persons , as well as banditry , illegal firearms handling , carjacking , deliberate destruction of the property of others , and multiple counts of theft and armed robbery . The applicant was additionally found guilty of illegal drug possession . He was sentenced to a total of DATE imprisonment , with confiscation of all his personal property . The court relied on , among other things , the applicant ’s confessions made during the pre - trial investigation – in particular , on DATE even though he had retracted them in the judicial proceedings . It also relied on the material evidence ( firearms and ammunition ) shown by the applicant to the police on CARDINAL and DATE . The court found that the applicant ’s allegation of ill - treatment in police custody had been thoroughly examined by the official investigation and had been rightly dismissed as unsubstantiated . The term of the applicant ’s sentence was to be calculated from DATE .

The applicant , both personally and through his lawyer , appealed in cassation . He submitted that the first - instance court had distorted the facts of the case and that his conviction had been based mainly on confessions obtained from him by coercion and in breach of his right to legal assistance . He emphasised in this connection that ORG had relied on the investigation of his illtreatment allegations , which had earlier been recognised as superficial and otherwise flawed . It was for that reason that the trial court had decided to entrust the official investigation of his allegations to ORG , since the earlier investigation undertaken by the local prosecution authorities had not taken into account all his arguments or the medical documents .

The applicant further emphasised that he ( as well as the other defendants ) had never been assigned victim status in the criminal investigation regarding the ill - treatment allegations . He noted that on DATE the ORG had discontinued the investigation , finding that there was no case to be examined , and ORG assignment of the official investigation to the ORG had never been implemented . The applicant pointed out that the fact that he had sustained injuries had not even been mentioned in the final decision . Lastly , he criticised the first - instance court for not having given any consideration to his continued detention in the ORG ( for DATE instead of the legal maximum of DATE ) .

On DATE ORG rejected the applicant ’s appeal in cassation . It concluded that his guilt was sufficiently proved by the evidence , including his own confessions . As to the applicant ’s complaint of a violation of his right to legal assistance , ORG noted that he had had his rights in that respect explained to him following his arrest on DATE and that he had been legally represented thereafter . In so far as his allegation of ill - treatment was concerned , ORG referred to the investigation into the matter by the prosecution authorities undertaken at the request of the first - instance court .

On DATE the ORG returned the case file on the ill - treatment allegations to the ORG as “ no longer required ” . It noted in its letter : “ ORG has not established any grounds for setting aside the decision made ” .

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

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

According to LAW , a person suspected of a drug offence may be detained for DATE if the suspected drug needs to be analysed .

Under LAW , if a court requires verification or clarification of the factual information obtained during a pre - trial investigation , it may request the investigating authority , by a judicial request ( судове доручення ) , to undertake certain investigative activities within an established time - limit .


CASE OF WODITSCHKA AND WILFLING v. AUSTRIA

Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The first applicant was born in DATE and lives in GPE .

On DATE ORG ( PERSON für PERSON ) convicted the first applicant under LAW of having committed homosexual acts with an adolescent and sentenced him to a fine of ORG CARDINAL ( approximately EUR CARDINAL ) with CARDINAL days’ imprisonment in default . The sentence was suspended on probation . ORG found that , in DATE , the first applicant , who was then DATE , had had about CARDINAL homosexual contacts with a DATE . In determining the sentence the court had regard to the applicant ’s confession and his young age as a mitigating circumstance , as well as to the repetition of the offence as an aggravating circumstance .

On DATE ORG ( Oberlandesgericht ) dismissed the first applicant ’s appeal on points of law , in which he had complained that section CARDINAL of LAW was discriminatory and violated his right to respect for his private life , and in which he had also suggested that ORG request ORG to review the constitutionality of that provision .

The second applicant was born in DATE and lives in GPE .

On DATE the Wiener Neustadt Regional Court ordered the second applicant ’s detention on remand on suspicion of having committed homosexual acts with an adolescent contrary to section CARDINAL of LAW .

On DATE the ORG convicted the second applicant under LAW and sentenced him to CARDINAL months’ imprisonment , CARDINAL of which were suspended on probation . It found that , from DATE until his arrest , the second applicant had a homosexual relationship with a DATE . In determining the sentence the court had regard to the applicant ’s confession as a mitigating circumstance , as well as to the repetition of the offence and a previous conviction as aggravating circumstances .

On DATE the second applicant was released from detention on remand .

On DATE ORG ( Oberlandesgericht ) dismissed the second applicant ’s appeal on points of law , in which he had complained that section CARDINAL of LAW was discriminatory and violated his right to respect for his private life , and in which he had also suggested that ORG request ORG to review the constitutionality of that provision . Upon ORG appeal it changed the sentence to the effect that CARDINAL out of DATE of imprisonment were suspended on probation .

Subsequently the second applicant was granted a stay of the execution of his sentence . On DATE he requested a pardon and a further stay of execution pending the decision on his request for pardon . On DATE the ORG granted a further stay of execution .

On DATE the Federal President , upon the second applicant ’s request , granted him a remission of the remaining sentence .

Article CARDINAL of LAW , in the version in force at the material time , read as follows :

“ A male person who after attaining DATE fornicates with a person of the same sex who has attained the age of DATE but not the age of CARDINAL shall be sentenced to imprisonment for DATE . ”

On DATE , upon a request for review made by ORG , ORG found that LAW was unconstitutional .

On DATE ORG decided to repeal LAW . That amendment , published in ORG ( ORG ) no . CARDINAL/CARDINAL , came into force on DATE .

The ORG notes that the legal situation has remained unchanged since DATE , when it gave its PERSON and PERSON v. GPE judgment ( nos . CARDINAL and CARDINAL , ORG CARDINAL-I ) . For a more detailed description of the law , ORG judgments concerning LAW and the parliamentary debate relating to the issue , it therefore refers to the said judgment ( LAW DATE ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial)

Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos

The applicant was born in DATE and lives in GPE , a town in the LOC region .

On DATE the applicant brought a court action against his former employer seeking compensation for damage to health related to professional hardship .

On DATE ORG ( Khanty - Mansiyskiy Region ) dismissed his claim as manifestly ill - founded .

On DATE the applicant lodged an appeal against the judgment of CARDINAL DATE .

According to the ORG , on DATE ORG sent a letter to the applicant informing him that the appeal hearing had been scheduled for DATE .

On DATE the Khanty - Mansiyskiy Regional Court held a hearing which the applicant did not attend . The adverse party ’s representative attended the hearing and made submissions . ORG upheld the judgment of CARDINAL DATE .

On an unspecified date the applicant applied for a supervisory review of the appeal decision of CARDINAL DATE .

By a decision of DATE a judge of ORG refused to examine his application on the grounds that the enclosed copy of the appeal decision of DATE had not been certified by the relevant court .

For a summary of relevant domestic law , as worded at the material time , see PERSON v. GPE ( no . CARDINAL/CARDINAL , LAW , DATE ) .


CASE OF OGRAZDEN AD AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

On DATE ORG Instance ordered a certain Mr I.A. to pay a debt established in the first applicant ’s favour . On DATE the first - instance court stayed the enforcement proceedings since the debtor had died . The applicant did not appeal against this decision .

In the meantime , on DATE , the first applicant lodged a length complaint with ORG . On DATE the court established that the enforcement proceedings , at that moment , had been pending for DATE before the first - instance court and had not yet ended . The court found that there was a violation of the first applicant ’s right to a hearing within a reasonable time . It set a DATE time - limit for the first - instance court to bring the enforcement proceedings to a conclusion and awarded the first applicant the equivalent of MONEY ( ORG ) by way of just satisfaction . In the absence of an appeal , this decision became final on DATE .

On DATE the second applicant sought that ORG ( “ the Fund ” ) recognise her right to a disability pension . After several remittals ordered by ORG and ORG , on DATE the ORG accepted the second applicant ’s request and acknowledged her right to a disability pension .

In the meantime , on DATE , the second applicant complained to ORG that the administrative proceedings had lasted too long and requested compensation . On DATE ORG established that the impugned proceedings , at that time , had lasted for over DATE and awarded her the equivalent of ORG CARDINAL by way of just satisfaction . On DATE the second - instance panel of ORG allowed the second applicant ’s appeal and awarded her a higher compensation , the equivalent of which was EUR CARDINAL . This sum was paid on DATE .

On DATE the third applicant requested annulment of her dismissal . On DATE ORG overturned the lower court ’s decision and dismissed her claim . On DATE ORG dismissed on the merits the third applicant ’s appeal on points of law ( ревизија ) .

In the meantime , on DATE , the third applicant complained to ORG about the length of the labour proceedings . On DATE ORG rejected ( отфрла ) her claim as having been submitted outside the statutory DATE time - limit , which , in her case , started to run on DATE . The second - instance panel of ORG confirmed this decision .


No violation of Art. 6-1;No violation of P1-1;No violation of Art. 13

The applicant was born in DATE and lives in PERSON ( GPE ) .

The applicant is the owner of land in GPE ( GPE ) , registered under file No . CARDINAL of ORG ) . Before DATE it comprised , inter alia , parcel No . CARDINAL/CARDINAL of QUANTITY marked as garden ( ORG ) and in the middle of it parcel No . CARDINAL of QUANTITY marked as building area ( Baufläche ) . The borders of these parcels were recorded in the land tax register ( Grundsteuerkataster ) .

On DATE the Mayor of PERSON informed the applicant that a new border register ( PERSON ) for PERSON was under preparation and that on this occasion some parcels of land had to be united . As the applicant 's land was affected by this measure he was invited to give his consent on DATE at FAC .

On DATE the applicant informed ORG PERSON ) that he would not consent to a unification of any of the parcels belonging to him .

On DATE ORG submitted a certificate ( PERSON ) to ORG , the competent ORG ( PERSON ) , in which it requested that the unification ( PERSON ) of the applicant 's parcels No . CARDINAL/CARDINAL and No . CARDINAL/CARDINAL , be entered in the land register .

On DATE ORG amended the land register as requested . It struck out parcel No . CARDINAL/CARDINAL of the land register and united the respective piece of land with parcel No . CARDINAL/CARDINAL . On DATE the applicant appealed against this decision .

On DATE the ORG rejected the applicant 's appeal . ORG found that ORG had issued the certificate of DATE under LAW of LAW ( Vermessungsgesetz ) . Under this provision , the consent of the owner of land to a unification of parcels was not necessary . ORG certificate fulfilled the requirements of LAW of LAW , namely that the parcels concerned had the same owner and that no different financial burdens were placed on them . The further criterion for a unification of parcels , namely that the unification was advisable for presenting in the map parcels which were put to the same use , could not be examined by ORG . In this respect they were bound by the findings of ORG .

The applicant lodged a further appeal on points of law ( Revisionsrekurs ) with ORG . He submitted that the difference in treatment between owners of land which was registered in the border register and those whose land was registered in the land tax register was unconstitutional . There was no reason why unification of parcels only with regard to land registered in the border register was subject to the consent of its owner . Furthermore , the unification of his parcels violated his right to property in that it was impossible to divide them again and sell separately the former parcels No . CARDINAL/CARDINAL and No . CARDINAL/CARDINAL because the latter parcel would not meet the criterion of having a minimum surface necessary for creating a separate parcel .

On DATE ORG dismissed the applicant 's further appeal on points of law . This decision was served on the applicant on DATE . ORG found that ORG had to amend the land register following a certificate of ORG if the land register did not disclose any elements which spoke against that measure . A certificate of ORG was therefore not a request to be examined by the courts but a formal statement about its official acts ( Amtshandlungen ) . In this respect ORG were bound by the certificate of the Surveyor 's Offices . Changes made by ORG must lead to corresponding entries in the land register .

ORG also found that the difference in treatment between owners of land registered in the border register on the one hand and the land tax register on the other hand as regards the necessity of the owner 's consent to the unification of parcels of land was justified . As the border register relied on technically more advanced methods of surveying than the previous land tax register it was more reliable and merited a higher degree of protection . At present the land tax register had only a transitory function until border registers had been drawn up for all municipalities . ORG further noted that a later partition of the parcels which had been united might not be possible in view of their size . However , this effect could not constitute an interference with the applicant 's right to property because it was in accordance with the intentions of the legislator who wished to avoid the creation of parcels of land which were too small .

In the meantime , on DATE , the applicant had filed an appeal with ORG , Measures and Surveying ( ORG für Eich- PERSON ) against ORG certificate ( PERSON ) and requested its annulment .

Since ORG did not decide on the appeal , the applicant , on DATE filed a request for transfer of jurisdiction to the superior authority ( PERSON ) with the Federal Minister for Economic Affairs ( PERSON für wirtschaftliche GPE ) . On CARDINAL DATE the Minister rejected the applicant 's request as he found that DATE time - limit within which a decision has to be taken had not yet expired .

The applicant also had filed , on DATE , a request for a declaratory decision with ORG . He argued that the certificate had been unlawful and requested the declaration that the conditions of LAW of LAW had not been met since he had not given his consent . The applicant submitted that he had promised his son to give him parcel No . CARDINAL/CARDINAL . Because of the unification of the parcels he could no longer keep this promise . Instead a partition map by a surveyor had to be drawn up which involved considerable expenses . Therefore he had a legal interest in the declaratory decision requested .

NORP Since ORG did not decide the applicant , on DATE , filed a request for transfer of jurisdiction with ORG , requesting it to issue the declaratory decision . Thereupon , on DATE , ORG granted the applicant 's request for transfer of jurisdiction but rejected the applicant 's request for a declaratory decision . The applicant filed an appeal with the Federal Minister for Economic Affairs .

At an unspecified date the applicant introduced a complaint with ORG ( Verwaltungsgerichtshof ) against the Minister 's decision of CARDINAL DATE and the Minister 's inactivity in dealing with his appeal against ORG decision of DATE .

On DATE ORG decided upon the applicant 's complaint . It quashed the Minister 's decision of CARDINAL DATE as in its view DATE time - limit had expired . As regards the appeal against ORG decision of DATE it decided in the place of the Minister and dismissed the applicant 's appeal as unfounded . In the present case the applicant 's consent to the unification of the parcels had not been necessary under LAW . A request for a declaratory decision could therefore not relate to this element .

Meanwhile , on DATE the applicant had also lodged a hierarchical complaint ( PERSON ) against ORG with the Federal Minister for Economic Affairs .

On DATE the Minister reacted to the applicant 's hierarchical complaint . He found that a certificate of ORG was an official document ( öffentliche ORG ) and not a decision ( PERSON ) so that it could not be attacked by an administrative appeal ( PERSON ) . Furthermore , the unification of the applicant 's parcels No . CARDINAL/CARDINAL and CARDINAL had been necessary for technical reasons in order to ensure a clear presentation of the borders of the applicant 's land and to avoid an unclear and fragmented presentation of parcels in the border register .

The Surveying Act of DATE , ORG . CARDINAL/CARDINAL ( ORG , BGBl . CARDINAL/CARDINAL ) regulates the surveying of land . According to LAW the borders of parcels of land have to be registered in a border register ( PERSON ) . This register is drawn up by ORG . In particular , ORG has to draw up maps for this purpose and to record the topographic marks ( PERSON ) for identifying the borders . The purpose of the border register is to indicate with binding force the borders of land and to indicate the various types of land , their use and scope as well as features intended to facilitate a clear presentation of the parcel of land . The border register is distinct from the land register , which has the purpose of recording the ownership over land . It will replace the former land tax register , which until its replacement continues to exist ( LAW ) .

Under LAW of the LAW unification of parcels of land is subject to the following conditions : the parcels must be situated in the same land register district ( GPE ) and must be adjacent ; they must have the same owner and the same burdens ( Belastungen ) must encumber the parcels ; the unification of the parcels must be in the interest of expediency of the administration and no objections of surveying technique ( vermessungstechnische ORG ) must speak against it ( LAW § CARDINAL ) . ORG has to notify the unification upon request of the owner or ex - officio with the owner 's consent ( LAW ) .

With regard to land registered in the land tax register , Section CARDINAL § CARDINAL of the Surveying Act provides that for the preparation of the border register , the Surveyor 's Office shall examine the size of parcels of land and the use to which they are put in land register districts or larger areas ( Riede ) . If in the course of such an examination it appears that the unification of parcels of land is advisable for the purpose of depicting in the map parcels which are put to the same use and if the conditions of LAW are met these parcels can be united . In such a case the consent of the owner is not required ( LAW ) .

As regards parcels of land included in the land tax register , all single plots of land which belong to the same owner but are put to different use constitute different parcels . Newly created parcels of land included in the border register on the other hand are , as a rule , those parts of land belonging to a land register district which differ from the adjacent parts ( only ) in so far as they do not have the same owner and/or incumbrances . Parcels in the border register consist of CARDINAL or several use zones ( NORP ) according to the different use to which they are put . Which use zones belong to CARDINAL parcel can be seen from the cadastral map ( GPE ) and the register of parcels ( PERSON ) .