The applicant , Mr PERSON , is a citizen of GPE who was born in DATE and lives in PERSON . He is represented before the Court by Mr PERSON , a lawyer practising in PERSON . The respondent Government are represented by Ms Z. Ibrahimović , Agent , and PERSON , Deputy Agent .

Relevant background to the applicant ’s case

Following the declaration of independence in DATE by GPE ( the legal predecessor of DATE GPE ) , war broke out . It was characterised by ethnic conflict and discrimination , large scale displacement of people and the destruction or occupation of their homes . On DATE the CARDINAL principal parties to that war ( the then GPE , GPE and the then GPE ) signed a peace settlement DATE FAC for Peace in GPE ( hereinafter “ LAW ” ) . LAW set out provisions for the return of refugees and displaced persons to their homes of origin and the restitution of their property .

Relevant facts of the applicant ’s case

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

Prior to the DATE - CARDINAL war in GPE the applicant and his wife lived in his wife ’s house in the vicinity of PERSON in what is now ORG ) . PERSON and FAC lived in PERSON in what is now PERSON ( the other Entity of GPE ) .

On DATE the applicant and his wife concluded a contract with ORG and FAC exchanging his wife ’s house and other property in the vicinity of PERSON for a house and other property in PERSON belonging to ORG and M.M ( hereinafter “ the exchange contract ” ) . As a result , the applicant and his wife became the registered joint owners of the house and property in PERSON . However , it would appear that ORG and FAC did not register their ownership of the house and property in the vicinity of PERSON ( the applicant ’s wife remained the registered owner ) .

On DATE CARDINAL ORG and FAC initiated proceedings before ORG seeking that the exchange contract be declared void .

It would appear that in or around that date ORG also filed an application with ORG hereinafter “ the CRPC ” ) which was set up by LAW ( Annex CARDINAL to the DATE LAW ) .

On DATE the ORG established that ORG was the pre - war owner of the house in PERSON and annulled any involuntary transfer of ownership after DATE .

On DATE ORG obtained an order enforcing the ORG ’s decision from ORG of PERSON . The applicant and his wife were ordered to vacate the house within DATE and were entitled to alternative accommodation . They were instructed that an appeal against the order would not suspend the enforcement proceedings but that they could apply for suspension to ORG ( pursuant to section DATE of the Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees Act DATE hereinafter “ the DATE LAW ) .

On DATE ORG of PERSON issued another order which replaced that of DATE . Pursuant to the new order , the applicant and his wife were to vacate the house within DATE and were not entitled to alternative accommodation as the house in the vicinity of PERSON ( of which the applicant ’s wife remained the registered owner regardless of the impugned exchange contract ) was available to them . They were again instructed that an appeal against the order would not suspend the enforcement proceedings but that they could apply for suspension to ORG within DATE ( pursuant to section DATE of the DATE Act ) .

The applicant and his wife appealed against the order of DATE and applied for the suspension of the enforcement proceedings to ORG . It would appear that they have not received any response .

On DATE the ORG rejected a request for the reconsideration of its decision of DATE which had been submitted by the applicant and his wife because they had not shown that ORG was not the former owner of the house in PERSON . As to their submissions regarding the exchange contract , the ORG referred them to the competent court .

On DATE the applicant and his wife were evicted from the house in PERSON .

On DATE the applicant complained about his eviction to ORG which was set up by ORG CARDINAL to the DATE LAW ) .

On DATE the applicant ’s wife moved to her house in the vicinity of PERSON . It would appear that the applicant has not followed her .

On DATE the Banja Luka Court of First Instance declared the exchange contract void ab initio as having been concluded under duress ( in the context of large scale displacement and discrimination ) .

On DATE the applicant appealed to ORG against that judgment claiming that ORG and FAC had not been forced to conclude the contract . He noted that his mother - in - law had remained in his wife ’s house in the vicinity of PERSON after the conclusion of the contract where she had allegedly been killed . It would appear that the appeal is still pending .

On DATE the applicant submitted an application for interim measures to GPE asking to be reinstated in the house in PERSON pending his appeal against the judgment of DATE . It would appear that he has not received any response .

On DATE the applicant withdrew his application before ORG . Therefore , ORG within ORG the legal successor of ORG ) decided on DATE to strike out the application .

On CARDINAL and CARDINAL DATE the relevant administrative authorities expropriated a plot of land in front of the house in PERSON indicated above for the purpose of building a public road .

On DATE the Banja Luka District Court quashed the decision of CARDINAL and CARDINAL DATE , in an administrative dispute , as the proceedings before ORG concerning the validity of the exchange contract were still pending . The court also found that the contested decision did not establish certain relevant facts .

On DATE ORG decided to suspend the expropriation proceedings pending the proceedings concerning the validity of the exchange contract .

On DATE ORG upheld its ORG decision of DATE .

On DATE the applicant instituted administrative proceedings before ORG of the Republika Srpska challenging the legality of the decision of DATE . He complained because the land at issue had not been immediately expropriated ( i.e. regardless of the proceedings concerning the validity of the exchange contract ) . It would appear that those proceedings are still pending .

CARDINAL principal parties to the DATE - CARDINAL war in GPE ( the then GPE , GPE and the then GPE ) signed ORG on DATE . It entered into force on DATE . There are CARDINAL Annexes to the LAW , including LAW ) and LAW ( Annex CARDINAL ) .

ORG was signed by GPE ( at the time , GPE ) , ORG and PERSON on DATE , when it entered into force . For its relevant provisions see PERSON v. GPE ( ( dec . ) , no . CARDINAL , ORG CARDINAL- ... ) .

The former ORG was set up pursuant to LAW . On DATE it was replaced by ORG within ORG with a mandate to decide on cases received by ORG up to that moment .

In DATE the former ORG delivered a decision in a case of an individual who had concluded a contract of exchange of houses with another individual during the DATE - CARDINAL war in GPE and who had been threatened with eviction from her home pending court proceedings relating to the validity of the contract of exchange ( see PERSON , decision no . CH/CARDINAL/CARDINAL of DATE ) . Pending the proceedings before it , the former ORG applied interim measures suspending the eviction . Its final decision further suspended the eviction until a final decision of the competent court on the validity of the contract of exchange . The following is its relevant part concerning ORG CARDINAL and CARDINAL of LAW :

“ CARDINAL . This LAW of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees in Article LAW contains a mechanism that allows the court seized with the dispute about the validity of the exchange contract to decide whether , in the specific case before it , the general aim of expeditious repossession of pre - war homes should prevail over the rights asserted on the basis of the exchange contract or not ...

The law appears to envision that the competent court , once it has been requested to issue an order provisionally halting the enforcement of the administrative repossession proceedings , will make a decision on the basis of the case file before it . The court will examine the prima facie strength of the arguments made and evidence presented by the CARDINAL parties , the CARDINAL asserting the validity of the exchange contract and the CARDINAL claiming that it was concluded under duress . In this respect the court will require the side asserting the validity of the exchange to , as a minimum , “ show evidence of a written contract ” on the exchange . The court will then take into account whether the party seeking suspension of the eviction can make credible that the deprivation of the possession of the home until the dispute about the contract is solved will cause irreparable harm to it . The ORG is of the opinion that the mechanism envisaged by the law may be seen to strike a fair balance between the CARDINAL parties to the dispute .

NORP However , in the case before the Chamber , ORG in PERSON has failed until DATE to decide on the , manifestly urgent , request for provisional measures by the applicant . As a result , the balance crafted by the legislator is overthrown and the applicant de facto deprived of all procedural safeguards . Under these circumstances , the interference with the applicant ’s right to respect for her home does not comply with the requirement that it be “ necessary in a democratic society for the protection of the rights of others ” , in this case of the pre - war owner PERSON

In the present case , although the applicant has requested that ORG in PERSON issue an order for provisional measures to prevent her eviction pending court proceedings on the validity of the exchange contract as provided for in LAW , due to the silence of the first instance court , the applicant is left without any other remedy to seek suspension of her eviction . ORG has the power under LAW to order suspension , but it has failed to reply to the applicant ’s request for an interim measure . As of DATE the ORG has not given any decision on the request for provisional measures . The respondent ORG has confirmed the applicant ’s allegation that her case is just an instance of a general practice not to decide requests for provisional measures in cases like hers . The ORG is of the opinion that under such circumstances , the applicant was deprived of her right under LAW to an effective remedy against the violation of her right to respect for her home . ”

Following this decision , the Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees Act DATE has been amended . The relevant authorities will now suspend ex officio execution of the decisions of ORG in cases of exchanged houses pending court proceedings about the validity of the exchange ( see “ Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees Act DATE ” below ) .

The Agreement on Refugees and Displaced Persons was signed by GPE ( at the time , GPE ) , ORG and PERSON on DATE , when it entered into force . The following are its relevant provisions :

“ All refugees and displaced persons have the right freely to return to their homes of origin . They shall have the right to have restored to them property of which they were deprived in the course of hostilities since DATE and to be compensated for any property that can not be restored to them . The early return of refugees and displaced persons is an important objective of the settlement of the conflict in GPE . The Parties confirm that they will accept the return of such persons who have left their territory , including those who have been accorded temporary protection by third countries . ”

“ The Parties hereby establish an independent ORG Displaced Persons and Refugees ( the “ Commission ” ) ... ”

“ The Commission shall be composed of CARDINAL members . Within DATE after this Agreement enters into force , ORG GPE shall appoint QUANTITY members , CARDINAL for a term of DATE and the others for a term of DATE , and the Republika Srpska shall appoint CARDINAL members , CARDINAL for a term of DATE and the other for a term of DATE . The President of ORG shall appoint the remaining members , each for a term of DATE , and shall designate CARDINAL such member as the Chairman . The members of the Commission may be reappointed . ”

“ The Commission shall receive and decide any claims for real property in GPE , where the property has not voluntarily been sold or otherwise transferred since DATE , and where the claimant does not now enjoy possession of that property . Claims may be for return of the property or for just compensation in lieu of return . ”

“ In determining the lawful owner of any property , the Commission shall not recognize as valid any illegal property transaction , including any transfer that was made under duress , in exchange for exit permission or documents , or that was otherwise in connection with ethnic cleansing ... ”

“ Commission ’s decisions shall be final ... ”

Like ORG , on DATE the original ORG ceased to exist . It has been subsequently replaced by a homonymous ORG which is composed of entirely GPE citizens and financed by GPE .

This Act was enacted by ORG ( an institution set up by ORG DATE LAW – to oversee the implementation of the civilian aspects of ORG on behalf of the international community ) . ORG of ORG ( a group of CARDINAL states and international organisations that sponsor and direct the peace implementation process ) nominates the High Representative . ORG , which approved LAW and the deployment of international troops in GPE , then endorses the nomination , acting thereby under LAW . ORG also provides ORG with political guidance . ORG is funded by ORG . The current High Representative , Mr ORG , is also ORG Special Representative in GPE ( as was DATE , Lord PERSON ) .

The LAW has been in force since DATE . The following are the relevant provisions :

“ This Act regulates the implementation of the decisions of ORG ( hereinafter “ the Commission ” ) , created under Annex CARDINAL to the [ GPE ] Agreement , by way of restitution of properties located in ORG . ”

“ The ORG ’s decisions shall be final and binding from DATE of their adoption .

The Commission ’s decisions shall confirm the real property rights of the persons indicated therein and shall require the competent enforcement authorities to take measures as set out in this LAW .

The Commission ’s decisions shall be admissible as evidence in administrative , court or other legal proceedings . ”

“ The administrative authorities shall execute a ORG ’s decision upon a request of a person referred to in section CARDINAL(CARDINAL ) [ of this Act ] ...

The office of ORG in the municipality in which the property is situated shall execute a ORG ’s decision ... ”

“ The following persons shall be entitled to request the enforcement of the ORG ’s decision dealing with private property :

a. the property right holder indicated in the ORG ’s decision ,

b. the heirs of the property right holder indicated in the ORG ’s decision . ”

“ The right to request the enforcement of the ORG ’s decision dealing with private property shall not be subject to the statute of limitations . ”

“ A competent administrative organ shall issue an order enforcing the ORG ’s decision within DATE from the filing of a request for its enforcement . ”

“ Should a person claim a legal interest in the property or apartment at issue which was acquired after [ DATE ] and he or she can show a valid contract of exchange or transfer of rights , the competent administrative organ shall suspend proceedings and shall refer the parties to a competent court , according to the provisions of ORG ( ORG of ORG no . CARDINAL ) regulating preliminary issues , in order to rule on the allegation . ”

“ Where , exceptionally , a person claims a legal interest in the property or apartment at issue which was acquired after [ DATE ] , in respect of which the competent administrative organ issued an order enforcing a ORG ’s decision prior to [ DATE ] as yet unexecuted , the competent administrative organ shall ex officio suspend enforcement proceedings pending a final judicial decision on the matter , under the condition that an interested party provides evidence that he or she has initiated proceedings before the competent court and can show a valid contract of exchange or transfer of rights . ”

“ The competent administrative organ shall instruct the appellant to initiate proceedings before the competent court within DATE to prove that the property right holder indicated in the ORG ’s decision has voluntarily and lawfully transferred his or her rights to the appellant since [ DATE ] .

The competent court may suspend the enforcement proceedings before the competent administrative organ pending the court ’s decision where the appellant is able to produce a written contract which is in accordance with the law and to show that he or she would suffer irreparable harm if the enforcement proceedings continued . ”

“ The competent court shall determine whether the transfer of rights to the appellant has been conducted voluntarily and in accordance with the law .

If the transfer of rights was conducted DATE and DATE and its validity is disputed by the defendant / respondent , the burden of proof shall lie upon the party claiming that the transfer was valid to demonstrate that the transfer was conducted voluntarily and in accordance with the law . Where CARDINAL of the transferred properties is situated in the territory of another republic of the former ORG , the burden of proof shall lie upon the party , claiming that the transfer was not conducted voluntarily or in accordance with the law , to demonstrate that the status of the parties prior to the transfer should be restored .

The court may make whatever orders are necessary to give effect to its decision , such as an order setting aside legal transactions , making or erasing entries in the appropriate public books / registers and lifting any order for the suspension of enforcement proceedings .

The relevant parties shall notify the competent administrative organ of the court ’s decision .

The competent administrative organ shall continue or discontinue the enforcement proceedings in accordance with the court ’s decision . ”


Violation of Art. 3;Violation of Art. 10;Violation of Art. 13;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

The applicant was the executive director of an agricultural investment fund and a financial company . He also used to teach economics , an area in which he has a doctorate .

On DATE a preliminary investigation ( no . CARDINAL/CARDINAL ) was opened by ORG against him and other persons in respect of a number of financial transactions . The applicant was charged under LAW and QUANTITY of LAW of dereliction of his professional duties with a view to obtaining an unlawful gain for himself and others .

NORP In the course of the investigation the charges were altered several times . In all , CARDINAL persons were charged .

During the investigation , which lasted DATE and DATE , the investigator heard CARDINAL witnesses , examined numerous financial and banking documents , commissioned reports , and undertook searches .

On DATE the preliminary investigation was completed and the file was transmitted to the competent prosecutor .

On DATE the prosecutor submitted a CARDINAL indictment to ORG , accompanied by CARDINAL binders of documents .

The first hearing took place from DATE . ORG heard the accused persons , several witnesses and experts . Some witnesses did not appear . Both the prosecution and the defence requested an adjournment .

The trial resumed on DATE . ORG heard several witnesses . CARDINAL other witnesses had not been summoned properly and others , although summoned , did not appear . The trial was adjourned until DATE .

On DATE the court , sitting in private , granted a request by CARDINAL of the accused persons for additional questions to be put to the experts . The experts submitted their report on DATE .

The trial resumed on CARDINAL and DATE . The court adjourned the hearing as some witnesses had not appeared and ordered an additional financial report .

The hearing scheduled for CARDINAL DATE was put off until DATE and then until DATE due to the applicant 's ill health .

On DATE ORG held its last hearing . It heard the final pleadings of the parties .

On DATE the ORG found the applicant guilty of ordering money transfers abroad in breach of the relevant financial regulations . The transfers had been ordered without proof of a lawful purpose and on behalf of clients of the applicant 's financial company whom he had not fully identified . The applicant was also found guilty of issuing a power of attorney conferring wide - ranging powers to another person in breach of his duties as the manager of the financial company . The applicant was acquitted on the remainder of the charges against him and sentenced to DATE imprisonment .

The reasoning of ORG judgment was served on the applicant on an unspecified date in DATE .

NORP Several times during the proceedings the case file was unavailable as it was repeatedly transmitted to the competent court for examination of appeals by the applicant and his co - accused against their pre - trial detention . In practice , whenever such an appeal was lodged , the case file was transmitted together with the appeal .

NORP Throughout the proceedings ORG and , later , ORG ( see below ) had to seek police assistance to establish the addresses of witnesses and bring them before the court .

On DATE the applicant appealed against his conviction and sentence .

On DATE ORG held its first hearing , which was adjourned to CARDINAL DATE , as one of the co - appellants had health problems .

On DATE ORG quashed the applicant 's conviction and sentence and remitted the case to the preliminary investigation stage .

ORG in GPE , considering that ORG judgment was unclear or erroneous , sought to appeal against it or request its interpretation . There ensued a dispute about the relevant time - limit , a question submitted by the prosecution authorities to ORG . On DATE that court dismissed the prosecution 's request .

Nothing was done in the case thereafter , at least until DATE , the time of the latest information from the parties . The preliminary investigation in the applicant 's case was still pending before the prosecution authorities in GPE .

On DATE the applicant was arrested and detained pending trial in connection with investigation no . CARDINAL by decision of an investigator , confirmed by a prosecutor .

On DATE the applicant appealed against his pre - trial detention to ORG . He alleged , inter alia , that the acts on account of which he had been charged did not constitute a criminal offence ( under the banking and currency regulations in force at the relevant time ) and that he had therefore been charged unlawfully . He also alleged that there had been no danger of his absconding or committing further offences . On DATE the appeal was dismissed by ORG who stated , inter alia :

“ Since ORG has been charged under LAW , pre - trial detention is mandatory in accordance with LAW . The possibility of not imposing pre - trial detention is to be considered by the preliminary investigation bodies only if , regard being had to the nature of the case and the particular circumstances relating to the accused , there is no danger that he might abscond , commit further offences , or obstruct the course of justice .

The material in the case indicates that if ORG is released , there is a danger that he might abscond , commit further offences or obstruct the course of justice ... The preliminary investigation bodies are not under any obligation to set out the facts on the basis of which the above conclusions have been made . ”

On DATE the applicant requested ORG to order his release on the ground that the charges laid against him did not contain particulars of the alleged offence and that the provisions invoked were inapplicable as he was not an employee or an officer of the bank whose funds were at stake . The parties have not provided further information on the examination of this appeal .

On DATE a prosecutor from ORG upheld ORG decision of DATE while adding that the danger of absconding , committing offences or obstructing the course of justice stemmed from the fact that the applicant had financial and other relations with persons who had left the country . The arguments of the applicant , based on an analysis of the relevant banking and currency regulations , that he had not committed a crime , were to be assessed only by the investigator and then in the process of examination of the criminal case on the merits .

On DATE a further appeal was dismissed by a higher ranking prosecutor at ORG on the ground that , as the preliminary investigation was still pending , there was a risk that the applicant would seek to obstruct the course of justice . Furthermore , arguments going to the substance of the charges could only be examined once the necessary evidence had been collected .

On DATE the applicant submitted to ORG another request for release . He stated , inter alia , that he had been detained for DATE and that all the relevant evidence had been collected .

On DATE the applicant asked to be examined by doctors as his health was deteriorating because of the long period of detention .

On DATE the applicant lodged further applications for release with the District and Chief Public Prosecutors .

On DATE ORG dismissed the applications noting , inter alia , that the applicant had been charged with a serious intentional offence and that another preliminary investigation was also pending against him . This was investigation no . CARDINAL/CARDINAL which had been opened on an unspecified date in DATE and was being dealt with by the authorities in separate criminal proceedings .

On DATE the applicant complained to ORG that his pre - trial detention was unlawful .

This complaint was dismissed on DATE on the ground that under paragraph CARDINAL of LAW release was not possible since a second preliminary investigation ( no . CARDINAL/CARDINAL ) was pending against the applicant . The detention of the accused person was thus mandatory . Moreover , the investigation in the case under examination , no . CARDINAL/CARDINAL , was progressing and was soon to be completed .

On DATE the applicant complained against his pre - trial detention to ORG , on the ground that the statutory maximum period for the investigation had been exceeded and that , the accusation being based on documents already examined , there was no danger of him tampering with evidence . In addition , although he had been questioned on several occasions prior to his arrest , he had never attempted to abscond .

The application was submitted to ORG which , according to the established practice , had to transmit it to ORG together with the case file . On DATE , when the applicant 's lawyer complained to ORG , his appeal had not yet been transmitted to the court .

On an unspecified date the applicant complained to the prosecution authorities that his pre - trial detention ordered in connection with preliminary investigation no . CARDINAL , the second investigation pending against him , had been unlawful . On DATE ORG examined the above appeal and decided to terminate the applicant 's pre - trial detention in connection with investigation file no . CARDINAL/CARDINAL , as the applicant was detained pending trial in connection with the preliminary investigation no . CARDINAL .

The applicant 's pre - trial detention ordered in connection with preliminary investigation no . DATE was extended by ORG on DATE .

On DATE and DATE the applicant 's lawyer reiterated his request for a medical examination of his client . He stated that upon his visit on DATE he had found the applicant in an apparently bad state of health . It appears that a medical examination was carried out on an unspecified date in DATE .

On DATE ORG refused to release the applicant . She took into consideration the medical report , which apparently concluded that the applicant suffered from high blood pressure , arterio - sclerosis , a kidney stone , diabetes , problems with his lungs and the prostate , problems with the blood vessels and depression . The prosecutor noted , after examining the treatment prescribed by the doctor , that the applicant could be treated in a pre - trial detention facility with a moderate risk for his health and that his state of health should be carefully followed . She also emphasised that the applicant had been charged with a serious offence which in her opinion made his release impossible .

On DATE the applicant was committed for trial . On DATE he appealed against his pre - trial detention to ORG on the ground that the charges against him were weak . He further claimed that his detention had become unnecessary as all the evidence had been collected . He reiterated that he had a family and a permanent address , that he was a respected citizen , and that there had never been convincing evidence of a danger of absconding , committing offences or obstructing the course of justice . He further complained about his bad health and enclosed medical reports of DATE . The applicant 's lawyer also invoked the ORG and asked the court to give reasoned replies to each of his arguments .

After examining the applicant 's case in private , ORG dismissed the application for release on DATE . The court stated :

“ The defendant PERSON is indicted under section CARDINAL § CARDINAL of LAW with an aggravated case of dereliction of his professional duties . In accordance with LAW pre - trial detention must be imposed when a person is accused of having committed a serious intentional offence . In the case of the defendant ORG , he is suspected of having committed a serious intentional offence . The grounds for the exception provided for under paragraph CARDINAL [ of LAW ] [ allowing a detainee to be released from pre - trial detention ] are not present in the [ applicant 's ] case , since there exists a real danger of his obstructing the course of the proceedings or absconding . In addition , according to LAW , the exception laid down in its LAW can not avail a defendant in a case where preliminary investigations for another criminal offence are pending against him . It is apparent from the documents in the case that ORG had separated and transmitted to ORG material in relation to another offence . Therefore , there is no valid ground for the applicant 's release . ”

On DATE the applicant appealed to ORG . On DATE , before transmitting the appeal , the ORG sitting in private confirmed its refusal to release the applicant . On DATE the file was transmitted to ORG . On DATE ORG sitting in private dismissed the applicant 's appeal on the same grounds . After examining the medical report , that court held that the conditions of detention were not damaging for his health .

At the first trial hearing before ORG on DATE the applicant appealed against his detention . The appeal was dismissed on the ground that the applicant had been charged with a serious intentional offence for which detention was mandatory and that the exception provided by LAW could not avail a defendant in a case where preliminary investigations for another criminal offence were pending against him .

On DATE , at the second hearing before ORG , the applicant appealed against his detention on the ground that he could not obstruct the course of justice , as all the evidence and relevant testimony had already been examined by the court . He also stated that there was no danger of his absconding in view of his social status and family ties . The court dismissed his appeal on DATE , reasoning that the applicant had been charged with a serious intentional crime and that there were no new circumstances . On DATE the applicant appealed to ORG . On DATE that appeal was dismissed by ORG sitting in private on grounds that the applicant had been charged with a serious intentional crime and hence that his continued detention was justified , especially in view of the gravity of the alleged offence .

The applicant 's renewed application for bail , in which he pleaded , inter alia , that there was no danger of him absconding , regard being had to his age , was dismissed by ORG at its hearing on DATE as he had been charged with a serious intentional crime and there was another case pending against him .

On DATE the applicant appealed to ORG . Before transmitting that appeal , on DATE the ORG sitting in private re - examined and confirmed its refusal to release the applicant . On DATE ORG sitting in private dismissed the appeal .

On DATE the applicant 's lawyer requested a medical examination for the applicant as his health had deteriorated and he had to spend DATE in hospital . On DATE the applicant was examined by a doctor who recommended that he should be sent to a hospital specialising in cardiology and that he should undergo specialised medical treatment .

On DATE the applicant requested his release on the basis of that medical report . He further complained that there was no evidence of any danger that he might abscond or commit further offences .

DATE the applicant was detained in a disciplinary isolation cell ( see below ) .

On DATE ORG examined the appeal of DATE in the presence of the applicant . The court dismissed it holding that the health risk for the applicant was the same whether he was in prison or at home . On DATE the applicant appealed to ORG . On DATE , before transmitting the appeal , the ORG sitting in private re - examined the matter and confirmed its refusal to release the applicant . The appeal was dismissed on DATE by ORG sitting in private . It found that there had been no change of circumstances or facts capable of demonstrating that the applicant would not commit offences , obstruct the course of justice or abscond if released .

In the meantime , on DATE , the applicant was again examined by CARDINAL doctors who found that he was suffering from thrombosis which might endanger his life and recommended rest and regular check - ups by a specialist . On DATE the applicant was taken in hospital .

On DATE the applicant submitted a renewed bail application mainly on the ground of his ill health . It was dismissed on DATE by ORG at a hearing at which the court heard evidence from CARDINAL doctors and found that the applicant 's health was adequately monitored and that he received medical treatment .

On DATE the applicant appealed to ORG . On DATE , before transmitting the appeal , the ORG sitting in private confirmed its refusal to release the applicant . The appeal was dismissed on CARDINAL DATE by ORG sitting in private . It held that there were no objective circumstances which could warrant the conclusion that the applicant would not interfere with the investigation . The court further found that “ the length of the detention could not serve as an argument for a deviation from the strict provisions of LAW and that the applicant 's medical problems could be adequately addressed by his transfer to FAC , where the medical service was presumably better . On DATE the applicant was transferred to FAC .

On DATE the applicant was admitted to hospital .

On DATE the applicant asked again to be released on bail , pleading his ill health and the excessive length of his detention .

On DATE ORG held a hearing and decided to release the applicant on bail on health grounds . The applicant lodged a security and was released on DATE .

On DATE , during a search of the applicant before a meeting with his lawyers , the prison administration seized typewritten material . According to the applicant , it was the draft of a book he had been writing , describing events concerning his detention and the criminal proceedings against him . He had intended to read some passages to his lawyers . According to the prison officer who seized the material , the applicant had intended to transmit it to his lawyer .

The Government submitted several pages of the seized material . It transpires that the manuscript was in a rough form and was not ready for publication . Relevant passages read as follows :

“ The charges against me did not contain any facts or evidence indicating any criminal intention on my part or an offence committed by me ... I can only regard the acts of the authorities against me as unjustified and unlawful ...

The ... door clicked ... we stood up , hands behind our backs and backs to the warders : they are afraid that we might attack them , with our plastic cups ... I never understood why these well - fed idlers were afraid , always CARDINAL of them being present when the food was distributed ... I used to eat CARDINAL crusts of bread and as many spoonfuls of the slops they called soup . We used to hear how they diluted the soup ... How painful were these moments - to see the eyes of a hungry fellow prisoner ... to see how human beings are turned into beasts ... It is true that the economic situation in GPE was difficult ... But giving so little and such bad food to detained people was inhuman ... , even more so when we smelt the aroma of roasted or fried meat coming from the warders DATE . This is sadism ...

It was very difficult when they prohibited meetings with relatives and friends . That was not done everywhere : in GPE magistrates had decided to break a record for the inhuman treatment of detainees ...

[ In the beginning ] I did not know and never suspected what the investigative and judicial organs of democratic GPE were like . For a long time I hoped that there had been a misunderstanding ...

The search [ in the apartment ] was conducted by police officer [ B. ] His inexperience was betrayed by his behaviour ; he was a provincial parvenu ...

Could I imagine , when I worked TIME per day ... that the time would come when everything that I had done ... would be rejected ... by several powerful unscrupulous people , ' servants of law and order ' ?

Toilet time is TIME ... If someone stays longer , there follow shouting , cursing , clattering on the door , truncheon blows ... You ca n't believe that ? Well , I did not believe either that such conditions of life could exist in this country ...

The warders , most of whom are simple villagers and are paid ... better than teachers , doctors and engineers , ' work ' TIME and then have a QUANTITY rest ... They are the authority in prison , they are everything , we depend on them . It is true that there are younger and more intelligent boys , but they are a minority ...

Whenever we complained about all these disgraceful matters , there was no effect ... Twice there were inspections .... , all the officers were running here and there , it was necessary to clean , to put the detention centre in a better shape ; they were afraid of complaints by prisoners . But the inspectors came , made a formalistic visit and went away . ”

On DATE , after having heard the applicant and the prison officers involved , the Governor of ORG issued order no . CARDINAL which read as follows :

“ In accordance with section CARDINAL(k ) of LAW , the detainee GPE PERSON shall be punished by DATE confinement in an isolation cell ... for having made offensive and defamatory statements against officers , investigators , judges , prosecutors and state institutions . ”

DATE . Order no . CARDINAL was not served on the applicant . It was enforced immediately , on DATE .

It appears that before his transfer to the disciplinary isolation cell the applicant was examined by a doctor .

Also before being brought to the cell his hair was shaved off .

According to the applicant , the solitary - confinement facility had no toilet and he had to use a bucket which was not emptied regularly . Hygiene was poor and there was insufficient light .

On an unspecified date the applicant 's lawyers , having learned about the punishment , telephoned the General Director of Prisons and Detention Facilities , in whom appropriate powers are vested to examine appeals against confinement in an isolation cell .

On DATE the applicant left the isolation cell .

On DATE he appeared at an open hearing of ORG . The fact that his head had been shaved DATE was noticeable .

On DATE the applicant 's lawyers complained against the prison governor to the Deputy Minister of ORG . They conveyed , inter alia , the applicant 's concern that the prison governor had repeatedly demonstrated personal hostility towards him and had acted unlawfully .

DATE . On DATE the Deputy Minister of ORG replied to the applicant 's lawyers . She stated , inter alia :

“ An inquiry was conducted in connection with your appeal against the allegedly unlawful acts of the [ prison governor ] ... By an order N/ CARDINAL of DATE ... the accused ORG was condemned to DATE confinement in an isolation cell . This disciplinary measure was imposed because the papers seized contained expressions and descriptions which were offensive for ORG employees , the investigation bodies , the judiciary , the prosecution , the prison authorities and state bodies and institutions ( section CARDINAL of the Regulations ) . He was not punished because he had written the paper in question and wanted to take it out from the prison , which is , indeed , his right . That paper was given back to the accused ORG .

The accused suffers from a chronic disease - thrombophlebitis . He has been constantly supervised and treated in the prison . He was twice sent for outside treatment and he will be sent again for outside treatment if the need arises ” .

Article CARDINAL § CARDINAL provides

“ A person [ exercising the function of managing another person 's property or an official function ] , who acts in breach or dereliction of his professional duties , or exceeds his power or rights with a view to obtaining a material gain for himself or others or inflicting damage on others , and thus causes harm or substantial damage , shall be punished with DATE imprisonment ... ”

The third paragraph of Article CARDINAL , read in conjunction with the first and the second paragraphs of the same provision , provides for a punishment of DATE imprisonment in very serious cases if the resulting damage is very substantial or the offender holds a high - ranking post .

At the relevant time and until the reform of DATE an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody . The investigator 's decision was subject to approval by a prosecutor . The role of investigators and prosecutors under NORP law has been summarised in paragraphs CARDINAL of the ORG 's ORG v. GPE judgment ( [ ORG ] , no . ORG , ORG CARDINAL-II ) .

At the relevant time paragraphs CARDINAL and CARDINAL of Article CARDINAL read :

“ ( CARDINAL ) Detention on remand shall be imposed [ in cases where the charges concern ] a serious intentional offence .

( CARDINAL ) In the cases falling under paragraph CARDINAL [ detention on remand ] shall not be mandatory if there is no danger of the accused evading justice , obstructing the investigation , or committing further offences . ”

According to LAW a “ serious ” offence is one punishable by DATE imprisonment .

According to ORG practice at the relevant time ( it has now become at least partly obsolete as a result of the amendments in force since DATE ) LAW required that a person charged with a serious intentional offence had to be detained on remand . An exception was only possible , in accordance with LAW , where it was clear beyond doubt that any danger of absconding or re - offending was objectively excluded as , for example , in the case of an accused who was seriously ill , elderly , or already detained on other grounds , such as serving a sentence ( DATE in case no . CARDINAL , Bulletin CARDINAL/CARDINAL , p. CARDINAL ; DATE no . CARDINAL of CARDINAL in case no . CARDINAL ; DATE no . CARDINAL of CARDINAL in case no . CARDINAL ; DATE no . CARDINAL in case no . CARDINAL/CARDINAL , ORG , p. CARDINAL ) .

Paragraph CARDINAL of Article CARDINAL , as in force until DATE , provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable crime were pending against the accused person , or where he was a recidivist .

On DATE ORG examined a request by ORG for an interpretative decision on LAW . ORG considered that LAW was incompatible with LAW , the Convention and LAW . It therefore decided to submit the matter to ORG which is competent to rule on the compatibility of legislation with the LAW and international treaties . Ultimately , ORG did not decide the point , as the impugned provision was repealed with effect from DATE .

At the relevant time ORG considered that it was not open to the courts , when examining an appeal against pre - trial detention , to inquire whether there existed sufficient evidence to support the charges against the detainee . Their task was only to examine the lawfulness of the detention order ( DATE no . CARDINAL of CARDINAL in case no . CARDINAL/CARDINAL , ORG , p. CARDINAL ) .

According to the general rules laid down in ORG DATE and CARDINAL of the Code of Criminal Procedure and the existing practice , the detainee 's applications for release at the trial stage of the criminal proceedings are examined by the trial court , in private or at an oral hearing .

The trial court 's decision is subject to appeal in the court above ( LAW ) . The appeal must be lodged within DATE ( Article CARDINAL ) with the trial court ( Article CARDINAL § CARDINAL in conjunction with Article CARDINAL § CARDINAL ) . According to Article CARDINAL , after receiving the appeal , the trial court , sitting in private , must decide whether there exist grounds to annul or vary its decision . If it does not find a reason to do so the trial court transmits the appeal to the court above .

Article CARDINAL provides that the appellate court may examine the appeal in private or , if it considers it necessary , at an oral hearing .

According to section CARDINAL(k ) of the LAW a prisoner who has committed a disciplinary offence may be punished by , inter alia , confinement in an isolation cell for DATE .

Rule CARDINAL of the regulations provides that when a prisoner 's writings and appeals contain denigrating and offensive language he may be subject to disciplinary and criminal punishment .

At the relevant time , according to Rules CARDINAL(CARDINAL ) and CARDINAL , a prisoner punished by confinement in an isolation cell could appeal to the General Director of ORG through the prison 's governor . All appeals had to be transmitted by the prison authorities within TIME , together with the governor 's comments . The General Director was required to reply within DATE . Filing an appeal did not suspend the execution of the punishment .

In DATE the new section CARDINALb of the Act introduced the possibility of a judicial appeal against disciplinary confinement in an isolation cell .

Section CARDINAL(CARDINAL ) provides :

“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for :

unlawful pre - trial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds ... ”

The reported case - law under section CARDINAL(CARDINAL ) of the LAW is scant . In CARDINAL recent judgments ORG held that pre - trial detention orders must be considered as being “ set aside for lack of lawful grounds ” - and ORG liability arises - where the criminal proceedings were terminated on grounds that the charges were not proven ( Decision no . CARDINAL , DATE , case no . CARDINAL ) or where the accused was acquitted ( Decision no . CARDINAL , DATE , case no . CARDINAL/CARDINAL ) . The view taken appears to be that in such cases the pre - trial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded .

On the other hand , the Government have not informed the ORG of any successful claim under section CARDINAL(CARDINAL ) of the LAW in respect of unlawful pre - trial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions . It appears that rulings putting an end to pre - trial detention in pending criminal proceedings have never been considered as decisions to “ set aside for lack of lawful grounds ” within the meaning of section CARDINAL(CARDINAL ) of the LAW . Also , the terms “ unlawful ” and “ lack of lawful grounds ” apparently refer to unlawfulness under domestic law .

Under section CARDINAL(CARDINAL ) of the LAW , in certain circumstances a claim may be brought for damage occasioned by “ unlawful bringing of criminal charges ” . Such a claim may be brought only where the accused person was acquitted by a court or the criminal proceedings were discontinued by a court or by the prosecution authorities on grounds that the accused person was not the perpetrator , that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty . In contrast with the solution adopted under section CARDINAL(CARDINAL ) ( see paragraph CARDINAL above ) , ORG has held that no liability under section CARDINAL(CARDINAL ) arises where the criminal proceedings were discontinued at the pre - trial stage on grounds that the accusation was not proven ( Decision No . DATE , DATE , case no . CARDINAL , ORG ) .

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of ORG have no claim under general tort law as LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL § CARDINAL of the Act ; DATE No . CARDINAL , DATE , civil case no . CARDINAL/CARDINAL г. , ORG ) . The Government have not referred to any successful claim under general tort law in connection with unlawful pre - trial detention .

In their report on the visit to the former GPE in DATE , published on DATE , the ORG noted :

“ ... [ T]he ORG wishes to draw attention to ... practices observed by its delegation ... [in CARDINAL prison ] . The first was the shaving of the heads of newly - arrived residents and of those who had been returned to the institution after escapes . Senior staff at that establishment accepted that such a procedure has no medical justification and could be considered degrading ...

The ORG recommends that the authorities of “ the former GPE ” put an end to these practices . ”


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

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

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

NORP In DATE a private individual , ORG , started the construction of a residue - collecting basin in order to carry out the production of alcohol . The QUANTITY capacity basin was located in the centre of the village of GPE , QUANTITY from the applicants’ windows and close to a supermarket , school , church and the town hall .

According to the information submitted by the ORG , the residue - collecting basin was located QUANTITY from the first applicant ’s property and QUANTITY from the second applicant ’s property . The third applicant had a property QUANTITY from the basin , but during the period within which the distillery operated he did not live there .

B.P. started the production of alcohol without obtaining the necessary authorisations . Therefore , the mayor of the village imposed CARDINAL fines on him for this breach .

On DATE the ORG granted an environmental permit for the operation of the distillery , although they had initially dismissed ORG ’s request for authorisation . In granting the permit , the issuing authority imposed on the beneficiary an obligation not to cause discomfort in the area and interdicted him from releasing residues directly into the village ’s water supply .

On DATE the mayor of GPE authorised the operation of the distillery .

In DATE the applicants lodged a civil action with ORG , seeking to obtain the cancellation of the environmental permit granted to ORG They contended that the operation of the distillery in the centre of their village , close to the school and church , had caused discomfort – not only to them , but also to other inhabitants of the village , had affected their health and had polluted the water passing through the village . They added that the residue - collecting basin was very close to the houses of the second and the third applicants , making their lives intolerable . They contended , in particular , that they had not been able to open their windows because of the smell and because of the countless flies that had been attracted by the residues collected in the basin .

By a judgment rendered on DATE , ORG dismissed their action on the grounds that the environmental permit had been lawfully granted . It stated that a public meeting had been organised by the mayor and that CARDINAL people had attended it . It considered the applicants’ allegations concerning the insufficient number of attendees at the meeting to be unsubstantiated , noting that the law did not require a specific type of public meeting , consultation of the population or a minimum number of attendees at a public meeting . With regard to the location of the distillery in the centre of the village , the court noted that all the competent authorities had considered that the operation of the distillery would neither disturb its neighbours nor affect the environment .

The applicants filed an appeal on points of law , claiming , inter alia , the absence of consent from neighbours located in close proximity to the distillery . On CARDINAL DATE ORG dismissed the appeal on points of law filed by the applicants , stating that according to PERSON no . CARDINAL of DATE , the consent of neighbouring proprietors was only necessary in the event of construction of new buildings or measures being taken that were necessary for their protection . It noted that the written consent of the inhabitants living in the region had been obtained , being mentioned in TIME drafted by the mayor of the village on DATE .

The applicants continued to submit complaints regarding the allegedly illegal and damaging activities of the distillery to all competent authorities .

Consequently , a review was carried out by the ORG ’s office ( ORG control PERSON ) on DATE . It concluded that the matters mentioned in the ORG complaints were not substantiated .

According to a letter dated DATE , ORG informed the first applicant that in DATE ORG had cancelled an environmental health permit required for the operation of the distillery . Furthermore , from the documents submitted by the applicant it appears that on DATE the same authority had imposed a fine on the owner of the distillery for nonobservance of the obligations established for the operation of the distillery .

Based on the same source of information , it also appears that the tax authorities imposed a substantial fine on the distillery owner and ordered that the distillery ’s activities be ceased starting from DATE .

The Government submitted that the functioning of the distillery had ceased in DATE .

Provisions of domestic law relevant to the present case are to be found in PERSON v. GPE ( no . PERSON , ORG DATE ... ( extracts ) ) .


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE ORG opened an investigation against the applicant , who was a bank branch manager , and several others , in connection with a number of financial transactions effected by them allegedly in breach of the law ( see PERSON v. GPE , no . CARDINAL , LAW , DATE , and GPE v. GPE , no . CARDINAL , § DATE , DATE ) .

On DATE the applicant was charged with having authorised CARDINAL wire transfers abroad in breach of his professional duties and with a view to an unlawful gain for others .

In the course of the investigation the applicant was also accused of having guaranteed on behalf of the bank CARDINAL promissory notes issued by companies related to a Mr GPE , and of unlawfully possessing firearm ammunition .

Eight persons were charged in all . The charges were modified several times in the course of the investigation .

During the investigation , which lasted DATE , the investigator heard CARDINAL witnesses , examined numerous financial and banking documents , commissioned expert reports , and undertook searches .

On DATE the investigation was completed and the case file was sent to the prosecutor .

On DATE the prosecutor submitted to ORG a CARDINAL - page indictment accompanied by CARDINAL binders of documentary evidence .

The first hearing took place from DATE . ORG heard the accused as well as several witnesses and experts . Some witnesses did not appear . Both the prosecution and the defence requested an adjournment .

The trial resumed on DATE . ORG heard several witnesses . CARDINAL other witnesses were absent as they had not been subpoenaed properly and others , albeit subpoenaed , did not show up . The trial was adjourned until DATE .

The trial resumed on DATE and DATE . The court adjourned it to CARDINAL DATE , as some witnesses did not appear , and ordered an additional financial report .

The hearing listed for DATE was adjourned to DATE and then again to DATE by reason of the ill health of CARDINAL of the applicant 's coaccused .

On DATE ORG held its last hearing . It heard the closing argument of the parties .

On DATE ORG found the applicant guilty . It sentenced him to DATE imprisonment and banned him from holding the post of a director of a bank 's branch for a period of DATE .

The reasoning of ORG judgment was deposited in the registry of that court on an unspecified date in DATE .

NORP Several times during the proceedings the case file was unavailable as it would be transmitted to the competent court for the examination of appeals submitted by the applicant 's coaccused against their detention . In practice , upon such an appeal , the entire case file would be transmitted together with the appeal .

NORP Throughout the proceedings ORG and later ORG sought police assistance to establish the addresses of witnesses and ensure their attendance .

On an unspecified date in DATE the applicant appealed against his conviction and sentence .

DATE , on DATE , ORG held its first hearing , which was adjourned to CARDINAL DATE because of health problems of CARDINAL of the applicant 's coaccused .

On CARDINAL and DATE ORG resumed its hearing in the case .

On DATE ORG quashed the lower court 's judgment and remitted the case to the preliminary investigation stage .

ORG , considering that ORG judgment was unclear or erroneous , sought to appeal against it or request its interpretation . There ensued a dispute about the time - limit for such an appeal , which was brought by the prosecution authorities to ORG . On DATE that court dismissed the prosecution 's request .

Nothing was done in the case thereafter , at least until DATE , date of latest information from the parties . At that time the investigation in the applicant 's case was pending before the prosecution authorities .

On DATE the applicant was arrested and brought before an investigator who decided to detain him . The decision was later confirmed by a prosecutor .

On DATE , during the first trial hearing , the applicant applied to ORG for release . He submitted that he could not abscond because he had a wife and a child of whom he had to take care . He could not interfere with the investigation either , because all evidence had already been gathered . Finally , there was no risk of him committing an offence , because he had been dismissed from the bank where he had worked . The application was rejected by ORG with the following reasoning :

“ [ The applicant ] has been charged with a serious intentional crime . There is still evidence to be gathered . [ T]he court therefore considers that there is a real risk that the [ applicant ] will hinder the investigation . ”

On DATE the applicant appealed . On DATE ORG , finding no reasons to alter its decision , transmitted the appeal to ORG . On DATE ORG upheld the impugned decision , finding that that applicant had been charged with a serious intentional crime and hence had to be detained .

On DATE , during the second trial hearing , the applicant made a fresh request for release . He argued that the facts of the case had been elucidated : there were CARDINAL more witnesses to be questioned . There was hence no risk of him obstructing the investigation . There was no risk of him re - offending either . ORG refused , reasoning succinctly that the applicant had been charged with a serious intentional crime , that there were no new circumstances , and that he should hence remain in detention . On DATE the applicant appealed , arguing that there was no indication that he would flee , obstruct the investigation – especially in view of the fact that the case had progressed to trial DATE , or try to suborn witnesses or experts . On DATE ORG , finding no reasons to alter its decision , transmitted the appeal to ORG . On DATE ORG dismissed the appeal , finding that the applicant had been charged with a serious intentional crime and that hence his remaining in detention was justified , especially in view of the gravity of the alleged offence .

On DATE , during the third trial hearing , the applicant again requested release . He averred that in view of the adjournment of the case his detention should not be prolonged any further . There was no risk of him obstructing the investigation or fleeing . The obduracy of the court to refuse his release made pretrial detention a form of punishment . Indeed , the other accused persons were on bail . ORG refused in the following terms :

“ The court finds the [ applicant 's ] request for release ill - founded . [ He ] has been charged with a serious intentional crime and thus has to be kept in detention . ... The fact that the other accused are not detained has nothing to do with the [ applicant 's ] detention . ”

On DATE the applicant appealed , averring that the facts of the case had already been clarified , that he had a permanent address and that his family seriously suffered from his continuing detention . On DATE ORG confirmed its decision and transmitted the appeal to ORG . On DATE that court dismissed the appeal , holding that the applicant had been charged with a serious intentional crime . Detention was therefore lawful under LAW ( “ ORG ” ) , under which persons charged with serious intentional crimes had to be detained , barring special circumstances . There had to be real facts establishing that there was no risk of the applicant absconding , re - offending or hindering the investigation for the exception of LAW to apply . The applicant 's arguments relating to his lack of criminal record , permanent address etc . were not of a nature to prove the lack of such a risk .

On DATE the applicant filed an application for release , arguing that he had a permanent address and that he had no intention of absconding or interfering with the investigation . On DATE ORG held a hearing on the application and denied it in the following terms :

“ The court finds that the [ applicant 's ] request for release is ill - founded . The charges against [ him ] concern a serious intentional crime and there is a risk that he may interfere with the investigation or commit another crime[. ] ”

NORP On DATE the applicant appealed , arguing that his lengthy detention DATE was not warranted . The following day ORG confirmed its decision and forwarded the appeal to ORG , which in turn dismissed it on DATE , holding that there were no objective circumstances which could lead to the conclusion that the applicant would not interfere with the investigation . The length of detention was no reason to deviate from the strict requirements of LAW ORG .

During the trial hearing which took place on DATE the applicant again applied for release . He argued that there was no risk of him absconding , re - offending or fleeing . Moreover , given the adjournment of the case , his detention would exceed DATE , thus becoming a sort of punishment . ORG rejected the request , finding briefly that the applicant had been accused of a serious intentional crime and that there had been no change of circumstances . On DATE the applicant appealed , asserting that the facts of the case had been established and that he had no criminal record . On DATE the ORG declined to alter its decision and forwarded the appeal to ORG . On DATE ORG dismissed the appeal in the following terms :

“ [ The applicant is charged with ] a serious intentional crime . Under LAW [ of the ORG ] this is sufficient for the imposition of detention . The exceptions of LAW are not present , as [ the applicant ] may flee or obstruct the investigation . ”

On DATE the applicant filed an application for release . He maintained that there were no facts indicating that he could abscond , reoffend or hinder the investigation . On DATE ORG held a hearing on the application and rejected it . It held that the applicant had been accused of a serious intentional crime and that there was a risk of him impeding the investigation or re - offending . Moreover , the trial was about to finish . The applicant did not appeal to ORG .

All appeals filed by the applicant against the refusals of ORG to release him were examined by ORG in private , without the participation of the parties .

The applicant has not alleged that his detention continued after ORG quashed his conviction by a judgment of DATE .

Article CARDINAL § CARDINAL of LAW ( “ CC ” ) provides :

“ A person [ exercising a function of managing another 's property or an official function ] , who acts in breach or dereliction of his professional duties or exceeds his power or rights with a view to a pecuniary gain for himself or another or damage to another , and thus causes significant harm , shall be punished by DATE imprisonment ... ”

Article CARDINAL § CARDINAL , read in conjunction with the first and the second paragraphs of the same provision , provides for DATE imprisonment in very grave cases when the resulting damage is substantial or the offender holds a high ranking post .

Article CARDINAL § CARDINAL provides that whoever possesses firearm ammunition without a permit is punishable by DATE imprisonment .

Pretrial detention was governed by LAW ORG , which read in relevant part :

“ CARDINAL . Pretrial detention shall be imposed [ in cases where the charges concern ] a serious intentional crime .

NORP In the cases falling under paragraph CARDINAL [ detention ] may be dispensed with if there is no risk of the accused evading justice , obstructing the investigation , or committing further crimes . ... ”

A “ serious ” crime is defined by LAW as one punishable by DATE imprisonment .

ORG has held that it was not open to the courts , when examining an appeal against pretrial detention , to inquire whether there existed sufficient evidence to support the charges against the detainee . The courts had to examine only the formal validity of the detention order ( опред. № CARDINAL от DATE г. по ORG № DATE г. на ВС NORP н.о. ) .

According to ORG practice at the relevant time ( it has now become at least partly obsolete as a result of amendments in force since DATE ) , LAW required that a person charged with a serious intentional crime be detained . An exception was only possible , in accordance with LAW , where it was clear beyond doubt that any risk of absconding or re - offending was objectively excluded as , for example , in the case of a detainee who was seriously ill , elderly , or already in custody on other grounds , such as serving a sentence ( опред. № CARDINAL от CARDINAL май DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL октомври DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL ноември DATE г. по н.д. CARDINAL/CARDINAL г. ) .

The detainee 's appeals against detention at the trial stage are examined by the trial court . Such appeals may be examined in private , without the participation of the parties , or at an oral hearing . The law does not require the court to decide within a particular time - limit .

The trial court 's decision is subject to appeal to the higher court ( Article CARDINAL § CARDINAL of the ORG ) . The appeal must be filed within DATE ( Article CARDINAL ) with the trial court ( Article CARDINAL § CARDINAL in conjunction with Article CARDINAL § CARDINAL ) . After receiving the appeal , the trial court , sitting in private , decides whether there exist grounds to annul or vary its decision . If it does not find this to be the case , it forwards the appeal to the higher court ( Article CARDINAL ) .

Before doing so , the trial court must communicate the appeal to the other party ( the prosecutor ) and receive its written observations ( Articles CARDINAL and CARDINAL in conjunction with LAW ) . The law does not provide for the prosecutor 's observations to be communicated to the appellant .

The higher court may examine the appeal in private without the parties being present or , if it deems necessary , at an oral hearing ( Article CARDINAL § CARDINAL ) . The law does not require the court to decide within a particular timelimit .

Section CARDINAL of ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) provides , as relevant :

“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for :

NORP unlawful pretrial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds[. ] ”

The reported case - law under section CARDINAL(CARDINAL ) of the LAW is scant . In CARDINAL recent judgments ORG held that pretrial detention orders must be considered as being “ set aside for lack of lawful grounds ” – and that ORG liability arises – where the criminal proceedings have been terminated on grounds that the charges have not been proven ( реш. № CARDINAL/ DATE г. от DATE г. PERSON № DATE г. на ВКС ) or where the accused has been acquitted ( реш. № CARDINAL/CARDINAL г. от CARDINAL юли DATE г. по PERSON № CARDINAL г. на ORG ) . The view taken appears to be that in such cases the pretrial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded .

On the other hand , the Government have not informed the ORG of any successful claim under section CARDINAL(CARDINAL ) of the LAW in respect of unlawful pretrial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions . It appears that rulings putting an end to pretrial detention in pending criminal proceedings have never been considered as decisions to “ set aside for lack of lawful grounds ” within the meaning of section CARDINAL(CARDINAL ) of the LAW . Also , the terms “ unlawful ” and “ lack of lawful grounds ” apparently refer to unlawfulness under domestic law .

By CARDINAL ) of the LAW , in certain circumstances a claim may be brought for damage occasioned by the “ unlawful bringing of criminal charges ” . Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator , that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty . In contrast with the solution adopted under section CARDINAL(CARDINAL ) ( see paragraph CARDINAL above ) , ORG has held that no liability arises under section CARDINAL(CARDINAL ) where the criminal proceedings were discontinued at the pretrial stage on the ground that the accusation was not proven ( реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ВКС GPE г.о. ) .

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of ORG have no claim under general tort law as LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № DATE г. на ВС GPE ) . The Government have not referred to any successful claim under general tort law in connection with unlawful pretrial detention .


Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)

George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

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

On DATE the applicant ’s daughter , Y , was informed that she was DATE pregnant . Prior to or early in her pregnancy she developed ulcerative colitis ( “ ORG ” ) . The applicant ’s daughter began experiencing the symptoms of ORG , such as nausea , abdominal pains , vomiting and diarrhoea . Those symptoms were recurrent and caused pain and discomfort .

Y was repeatedly admitted to a number of hospitals . Y , accompanied by the applicant , attended the following hospitals in GPE : CARDINAL DATE , ORG in GPE , ORG ( ORG w Pile , PERSON ) ; CARDINAL May toCARDINAL DATE and CARDINAL to CARDINAL June DATE , ORG in ORG ( ORG specjalistyczny w Pile , Oddział PERSON ) ( “ Piła Hospital ” ) ; DATE to DATE and CARDINAL July CARDINAL , ORG , ORG No . CARDINAL , H. Święcicki Medical Academy in GPE ( PERSON i m . PERSON w Poznaniu , Oddział PERSON , PERSON i PERSON ) ( “ ORG ” ) ; CARDINAL to DATE Obstetrics and ORG , ORG , ORG in ORG Położniczo - Ginekologiczny III , ORG Położniczy Szpital PERSON Akademii Medycznej w Poznaniu ) ; CARDINAL DATE , ORG in Piła ( Szpital ORG w Pile , Oddział Chirurgiczny ) ; CARDINAL DATE , ORG in FAC , General and ORG ( ORG Specjalistyczny i m . GPE w Łodzi , ORG i ORG ) ( “ PERSON Hospital ” ) ; CARDINAL DATE , PERSON Regional Specialist Hospital in FAC ( ORG Specjalistyczny i m . PERSON ) ; CARDINAL to CARDINAL September CARDINAL , ORG , PERSON ORG . CARDINAL in FAC ( ORG Kliniczny Nr CARDINAL i m . N. ORG , ORG i ORG ) ( “ ORG ” ) .

The applicant ’s daughter was formally diagnosed with ORG during her stay in ORG DATE and DATE . She underwent a number of tests , including an endoscopy and a fibro - sigmoidoscopic examination of the anus .

During the visits in the hospitals listed above , the applicant ’s daughter received some diagnostic tests and basic treatment . She was given pharmacological treatment ( for example , intravenous and oral administration of steroids and antibiotics ) .

On DATE Y was admitted to ORG . DATE and DATE and DATE and DATE she was an inpatient in that hospital . On DATE she was diagnosed with an abscess .

On DATE Y left the clinic .

DATE , DATE , she was admitted to ORG , where she underwent an operation to remove the abscess .

On DATE Y was admitted to ORG due to a new abscess and rectovaginal fistula . On the same date she was operated on to remove the abscess . Medical files confirm that at the time Y was admitted to hospital the doctors were aware of ORG ulcerative colitis .

During the applicant ’s daughter ’s stay in GPE in DATE the doctor refused to perform a full endoscopy . In addition , no diagnostic imaging of the abdomen ( diagnostyka obrazowa jamy brzusznej ) was performed .

On DATE Y ’s condition deteriorated . She was transferred to ORG . Immediately following her admission she was sent for a surgical operation to establish the cause of the apparent sepsis . During the operation the doctors removed her appendix . Y ’s condition deteriorated , consequently immediately after the operation she was transferred to the intensive care unit of ORG .

On DATE the doctors removed the foetus , which was dead . On DATE the doctors removed Y ’s uterus . Altogether the applicant ’s daughter was operated on CARDINAL times in ORG . On DATE she died of septic shock caused by sepsis .

NORP By letter , dated DATE , ORG brother asked the hospital not to perform an autopsy . He submitted that the cause of ORG death was known to him .

The Government maintained that on DATE Y left the hospital at her own request due to a planned wedding ceremony . In this respect they submitted a copy of ORG ’s medical file , which in its relevant part reads as follows :

“ DATE ... Due to a planned wedding ceremony , the patient is to be released DATE at her own request . ”

The applicant disagreed . She maintained that Y had not requested to leave the hospital , but had been sent home .

The applicant further submitted that during her daughter ’s stay in the surgical department of ORG the head of that department commented that “ it is absurd to spend DATE treating an abscess . [ Y ] is too busy with her bottom , instead of taking care of something else ” , referring to the pregnancy . The applicant stated that this comment and its context had humiliated and angered her and her daughter .

The Government argued that ORG maintained that no such comment had been made , either by the head of the department or by any other doctor of that hospital . Also , ORG in GPE , in the course of disciplinary proceedings instituted against doctors who had treated Y , did not confirm the applicant ’s allegations .

The applicant also submitted that the doctor at ORG had justified not performing a full endoscopy ( in DATE ) by referring to his fear of endangering the life of the foetus . The applicant submitted that the doctor had stated that “ my conscience does not allow me ” , but had not formalised his objection or directed Y to another doctor .

The Government argued that during the investigation instituted by ORG in ORG it had been established that none of the doctors at ORG had based their refusal to perform a full endoscopy on a “ conscience clause ” ( klauzula sumienia ) . The decision not to perform a full endoscopy was taken because there were no medical grounds for such an examination , and not because of Y ’s pregnancy .

On DATE the applicant ’s lawyer asked ORG to institute criminal proceedings in relation to the circumstances of the applicant ’s daughter ’s death . The lawyer submitted medical charts from CARDINAL hospitals and asked the prosecutor to obtain full medical documentation . The applicant was questioned by the prosecutor on DATE .

On DATE the prosecution requested the Collegium PERSON in GPE and ORG in ORG to issue an opinion as to whether an exhumation would be possible in Y ’s case . Both universities replied that an exhumation of Y ’s body would not have enabled an opinion to be given on the cause of her death .

On DATE the prosecutor opened an investigation of possible unintentional homicide of the applicant ’s daughter ( LAW ) .

On DATE the prosecutor decided to appoint an expert from ORG of the Collegium PERSON in GPE , to evaluate the treatment provided to the patient , and to establish whether there was a direct causal link between any irregularities in ORG treatment and her death . However , PERSON informed the prosecutor that no autopsy was carried out following the applicant ’s daughter ’s death , and that exhumation of her body at a later stage would not have enabled an opinion to be given on the cause of death . A similar opinion was issued by ORG in ORG .

On DATE ORG in Gdańsk , on DATE ORG in GPE , and on DATE ORG in GPE refused to provide an opinion in LOC case due to their workload in other cases and lack of staff .

Meanwhile , on DATE the Minister of Health convened a special expert committee to investigate ORG treatment and the circumstances of her death . The aim of the committee was to inquire in respect of all the hospitals involved in ORG treatment as regards their organisation and methods of treatment and the availability of those methods . On DATE the committee concluded that the death had been directly caused by sepsis . The committee noted however , that during ORG stay in ORG , despite her history of inflammatory bowel disease the doctors failed to perform a diagnostic imaging test on her abdomen . In addition , an earlier diagnosis of sepsis and the establishment of its original cause in ORG ( most probably PERSON - Crohn disease ) and a possible decision about surgical treatment would have had an impact on ORG ’s situation . The committee ’s report was signed by several national consultants in various fields of health care . CARDINAL members of the committee , who were not medical experts , did not sign the report : professor of criminal law GPE , and GPE , the head of an NGO working in the field of reproductive rights .

On DATE the prosecutor ’s office asked national consultants in gastroenterology , gynaecology and vascular surgery to submit opinions on ORG treatment .

On DATE an expert gastroenterologist stated in her opinion that the original cause of sepsis could not be determined due to the fact that an autopsy had not been performed on Y ’s body .

The investigation of the death of the applicant ’s daughter was extended several times . It was then suspended , on DATE . The prosecutor referred to the need to obtain expert opinions and the fact that the waiting time for such opinions was DATE .

Subsequently CARDINAL medical opinions were submitted to the prosecutor ’s office on DATE , DATE , DATE , DATE , and CARDINAL DATE , and DATE . Altogether the prosecution obtained opinions from CARDINAL medical experts . The experts were subsequently heard by the prosecutor .

During the investigation , there were several changes of prosecutor : CARDINAL prosecutors handled the investigation at different stages .

On DATE PERSON , an expert gastroenterologist , considered it surprising that Y had not undergone an ultrasonographic examination of the abdomen . He further stressed that she could have had an MRI ( magnetic resonance imaging ) to determine the cause of the abscess . Lastly , an autopsy would have allowed the original cause of the sepsis to be determined . In an additional opinion of DATE PERSON considered that in both hospitals , Piła and PERSON , the doctors failed to do an MRI . However , he stressed that the lack of adequate examination in LOC case should be treated not as medical malpractice but as lack of due diligence .

On DATE ORG resumed and discontinued the investigation . The prosecutor concluded that on the basis of the experts’ opinions there was no ground for any doubts or objections as to the treatment received by the applicant ’s daughter . Failure to conduct an MRI should be considered a lack of due diligence and not medical malpractice . It could no longer be said that an earlier operation would have saved Y ’s life . Consequently , no direct link had been established between the treatment and the death of the applicant ’s daughter .

NORP The applicant appealed .

On DATE ORG upheld the prosecutor ’s decision . The court referred to the complicated nature of the case and the fact that no autopsy was performed , and therefore it was impossible to establish whether Y suffered from PERSON disease . The court considered that there were no grounds for continuation of the investigation of ORG death .

The applicant stated that the prosecutor had not obtained the necessary information , such as full medical records , to assist experts in forming their opinions . The ORG maintained that the prosecutor had obtained full medical records from all the hospitals attended by the applicant ’s daughter in GPE , ORG and FAC .

The applicant also stated that the prosecutor had the applicant ’s daughter . The ORG argued that the prosecutor had examined the issue of colonoscopy and the investigation had been focused on Y ’s cause of death : in particular , on the question whether her treatment had been adequate to the diagnosis and whether further tests , such as a full endoscopy and a diagnostic imaging test , could have prevented ORG death .

The applicant claimed that the CARDINAL members of the special expert committee ( see paragraph CARDINAL above ) who had not signed the report of DATE had not been allowed to participate in the committee ’s discussions and therefore did not have access to the medical files . The Government disagreed . They drew the ORG ’s attention to the fact that all the medical specialists had signed the report .

On DATE the Łódź Regional Agent for Disciplinary Matters ( Okregowy PERSON ) ( “ Disciplinary Agent ” ) instituted disciplinary proceedings against the doctors who had treated PERSON After consulting several experts and hearing witnesses , he concluded that there was no evidence of medical malpractice . During the proceedings the applicant and ORG fiancé refused to testify before ORG . The proceedings were discontinued by a decision of DATE .

In DATE the ORG instituted disciplinary proceedings against the doctors who had treated Y. On DATE CARDINAL specialists from ORG issued a medical opinion , that there was no evidence of medical malpractice . The proceedings were discontinued by a decision of DATE .

The applicant did not appeal against the GPE and GPE Disciplinary Agents’ decisions to ORG in GPE ( PERSON ) .

In DATE the applicant had brought a compensation claim in the ORG against ORG .

DATE . On DATE the applicant modified her claim and asked for MONEY ( ORG ) in compensation . Consequently , the case was transferred to ORG .

On DATE the ORG dismissed the applicant ’s claim for compensation . The applicant did not appeal against this judgment . In addition , none of the parties asked to be served with the written reasoning of the judgment .

There is no indication in the medical files of ORG stay in ORG ( CARDINAL May-CARDINAL DATE ) that she had given permission for third parties to have access to these files . For these reasons , in DATE the hospital refused the applicant access to the medical files

Medical files of ORG stay in ORG ( DATE to DATE and DATE ) indicate that Y specified that the applicant was entitled to obtain documentation on her stay in the hospital . The hospital granted access to these files to ORG ( on DATE and CARDINAL DATE and DATE ) and to ORG on DATE .

Medical files in ORG do not indicate that Y allowed third - party access to her medical files . For this reason the hospital refused the applicant access to these files .

The ORG maintained that the applicant had not requested the NORP hospital to give her access to Y ’s files . The applicant disagreed . She submitted , without specifying any details , that she had twice asked the hospital for these files but had not been granted access .

The Government submitted that on DATE the prosecutor ’s office requested the relevant hospitals to provide files on ORG ’s treatment . In this connection they submitted copies of the prosecutor ’s decisions .

The applicant disagreed : she claimed that the relevant files were requested only in DATE and DATE .

Under section CARDINAL of LAW of DATE ( ustawa o zawodzie lekarza i lekarza dentysty ) ( “ the DATE LAW ) , as applicable at the material time , a doctor may refuse to carry out a medical procedure , citing her or his objections on the ground of conscience . He or she is obliged to inform the patient where the medical procedure concerned can be obtained and to register the refusal in the patient ’s medical records . Doctors employed in health - care institutions are also obliged to inform their supervisors of their refusal in writing .

Sections CARDINAL of ORG of DATE ( ustawa o zakładach opieki zdrowotnej ) , as applicable at the material time , specified situations in which an autopsy is to be performed . In general , when a person died in a hospital , the authorities might carry out an autopsy unless that person ’s statutory representative objected or the patient expressed such a wish whilst alive . However , an autopsy was obligatory if the cause of the patient ’s death could not be unequivocally established or in situations specified in the code of criminal procedure .

Under section CARDINAL of LAW and the ordinance of DATE on types of individual medical documentation , keeping them and detailed conditions of granting access to them ( ORG Zdrowia w sprawie rodzajów indywidualnej dokumentacji medycznej , sposobu jej prowadzenia oraz szczegółowych warunków jej udostepniania ) as applicable at the material time , a doctor was obliged to grant access to individual medical files to a patient , his statutory representative or a person authorised by the patient ; to another doctor or person authorised to conduct the patient ’s treatment ; other organs under separate legislation ( such as courts or a prosecutor ’s office ) .

Under LAW of LAW Civil Code , the ORG is liable for damage caused by its agents in the exercise of their functions . There is established case - law of the NORP courts to the effect that this liability of the ORG also includes liability for damage caused by medical treatment in a public system of medical care , run either by the ORG or by the municipalities .

LAW provides that a person who unintentionally causes the death of another human being shall be liable to a sentence of imprisonment DATE

The Chambers of Physicians Act of DATE ( ustawa o izbach lekarskich ) ( “ The DATE LAW ) no longer in force , established ORG . The disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before organs of the ORG , agents for disciplinary matters and disciplinary courts . Agents and members of the courts for each region are elected by members of a local chamber . The Chief Agent for ORG and ORG are elected by ORG , composed of delegates of local chambers .

Pursuant to LAW , the following penalties may be imposed in disciplinary proceedings : a warning , a reprimand , suspension of the right to practise medicine for a period from DATE , and being struck off the register of physicians .

The agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed . When investigating such a complaint , the agent may question a physician charged with professional misconduct , may appoint experts and question witnesses and take such other evidence as he or she sees fit . A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant .

The agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed .