CASE OF ENGEL AND OTHERS v. THE NETHERLANDS

Violation of Art. 5-1;Violation of Art. 6-1;No violation of Art. 6-2;No violation of Art. 6-3-b;No violation of Art. 6-3-c;No violation of Art. 6-3-d;No violation of Art. 14+6;Just satisfaction reserved

The facts of the case may be summarised as follows :

All applicants were , when submitting their applications to the Commission , conscript soldiers serving in different non - commissioned ranks in the GPE armed forces . On separate occasions , various penalties had been passed on them by their respective commanding officers for offences against military discipline . The applicants had appealed to the complaints officer ( beklagmeerdere ) and finally to ORG ( PERSON ) which in substance confirmed the decisions challenged but , in CARDINAL cases , reduced the punishment imposed .

Mr. PERSON

In DATE , Mr. PERSON was serving as a sergeant in ORG . He in fact lived at home during off - duty hours . The applicant was a member of ORG ( PERSON GPE ) which was created in DATE and aims at safeguarding the interests of conscripts . It was recognised by the Government for taking part in negotiations in this field and its membership included CARDINAL of all conscripts .

Mr. PERSON was a candidate for the vice - presidency of the PERSON and on DATE he submitted a request to his company commander for leave of absence on DATE in order to attend a general meeting in GPE at which the elections were to be held . He did not , however , mention his candidature .

Subsequently he became ill and stayed home under the orders of his doctor who gave him sick leave until DATE and authorised him to leave the house on DATE . On DATE , the company commander had a talk with the battalion commander and it was agreed that no decision should be taken regarding the above - mentioned request pending further information from the applicant who had given no notice of his absence or return . However , on the following day a check was made at the applicant 's home and it was discovered that he was not there . In fact , he had gone to the meeting of the V.V.D.M. where he had been elected vice - president .

On DATE Mr. PERSON returned to his unit and on DATE his company commander punished him with DATE light arrest for having been absent from his residence on DATE .

The applicant considered this penalty a serious interference with his personal affairs in that it prevented him from properly preparing himself for his doctoral examination at ORG which had been fixed for DATE . According to the applicant , he had made several attempts on DATE to speak to an officer on this point but without success . Believing that under the army regulations non - commissioned officers were allowed to serve their light arrest at home , he left the barracks in the evening and spent TIME at home . However , DATE his company commander imposed a penalty of DATE aggravated arrest on him for having disregarded his first punishment .

The applicant , who had just been informed that , with effect from DATE , he had been demoted to the rank of private , again left the barracks in the evening and went home . He was arrested on DATE by the military police and provisionally detained in strict arrest for DATE , by virtue of LAW ( paragraph CARDINAL above ) . On DATE his company commander imposed a penalty of DATE strict arrest for having disregarded his CARDINAL previous punishments .

The execution of these punishments was suspended by ministerial decision in order to permit the applicant to take his doctoral examination which he passed on DATE . Moreover , on CARDINAL , DATE and DATE Mr. PERSON complained to the complaints officer about the penalties imposed on him by the company commander . On DATE the complaints officer decided , after having heard the parties , that the first punishment of DATE light arrest should be reduced to a reprimand , the second punishment of DATE aggravated arrest to DATE light arrest , and the third punishment of DATE strict arrest to DATE strict arrest . In the last CARDINAL cases the decision was based on the fact that the previous punishment(s ) had been reduced and that the applicant had obviously been under considerable stress owing to his forthcoming examination . The complaints officer further decided that Mr. PERSON 's punishment of DATE strict arrest should be deemed to have been served from DATE , during his provisional arrest .

On DATE the applicant appealed to ORG against the decision of the complaints officer relying , inter alia , on the Convention in general terms . The ORG heard the applicant and obtained the opinion of ORG for ORG . On DATE , that is DATE after the date of the disciplinary measures in dispute , the ORG confirmed the contested decision . It referred to LAW CARDINAL ( b ) ( article CARDINAL - CARDINAL-b ) of the LAW and held that the applicant 's detention had been lawful and had been imposed in order to secure the fulfilment of an obligation prescribed by law . The system under LAW and LAW required in fact that every serviceman should submit to and co - operate in maintaining military discipline . This obligation could be enforced by imposing disciplinary punishments in accordance with the procedure prescribed by LAW . In these circumstances , the applicant 's punishment of DATE strict arrest had been justified in order to secure the fulfilment of that obligation .

The applicant had not received the assistance of a legally trained person at any stage in the proceedings against him ; perusal of the file in the case does not reveal if he asked for such assistance .

Mr. PERSON

Mr. PERSON , at the time of his application to the Commission , was serving as a corporal in ORG . On TIME CARDINAL DATE he was TIME late for duty . His car had broken down during DATE leave and he had had it repaired before returning to his unit instead of taking the first train . On these grounds , the acting company commander , on DATE , imposed a penalty of DATE light arrest on the applicant . DATE he revised the above grounds to include a reference that the applicant had not previously requested the commander 's leave of absence .

On DATE , the applicant complained about his punishment to the complaints officer invoking , inter alia , Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW . In this respect he alleged that he had been deprived of his liberty by a decision which , contrary to the requirements of LAW ) , had not been taken by a judicial authority ; that furthermore his case had not been heard by an independent and impartial tribunal ( LAW para . CARDINAL ) ( article DATE ) ; that he did not have adequate time and facilities for the preparation of his defence ( Article CARDINAL para . CARDINAL ( b ) ) ( article CARDINAL - CARDINAL-b ) , and that he did not have legal assistance ( Article CARDINAL para . CARDINAL ( c ) ) ( article DATE ) .

DATE . On DATE , following the rejection by the complaints officer of his complaint on DATE , the applicant appealed to ORG . On DATE , the ORG heard the applicant , who was assisted by a lawyer , ORG , and obtained the opinion of ORG for ORG . The ORG then quashed the complaints officer 's decision but confirmed the punishment of DATE light arrest imposed on the applicant on the original grounds stated on DATE .

The ORG first found that LAW was not applicable in a case where neither the determination of a criminal charge nor the determination of civil rights and obligations was in question . The ORG referred to the definition of military disciplinary offences contained in LAW ( paragraph CARDINAL above ) and concluded therefrom that disciplinary proceedings clearly did not fall within the scope of LAW ) . Nor was there any substance in the applicant 's argument that , since a conscripted man had not volunteered to come within the jurisdiction of the military authorities , any disciplinary measure imposed upon him in fact had a criminal character .

As regards the complaints based on LAW , ORG first held that DATE light arrest did not constitute " deprivation of liberty " . In the alternative , the ORG further stated that the disputed punishment was meant to " secure the fulfilment of ( an ) obligation prescribed by law " , within the meaning of LAW para . CARDINAL ( b ) ( article CARDINAL - CARDINAL-b ) .

At first and second instance in the proceedings Mr. PERSON had not received any legal assistance , and during the proceedings before ORG the legal assistance granted to him had , in line with the practice described above at paragraph CARDINAL , been restricted to the legal aspects of the case .

Mr. PERSON

Mr. PERSON , at the time of his application to the Commission , was serving as a private in ORG . On DATE , he was sentenced to committal to a disciplinary unit for DATE by his company commander on the grounds that , on DATE , he had driven a jeep in an irresponsible manner over uneven territory at a speed of QUANTITY . per hour ; that he had not immediately carried out his mission , namely to pick up a lorry at a certain place , but that he had only done so after having been stopped , asked about his orders and summoned to execute them at once ; that , in view of his repeatedly irregular behaviour and failure to observe discipline , he had previously been warned about the possibility of being committed to a disciplinary unit .

On DATE , the applicant complained about his punishment to the complaints officer alleging , inter alia , violations of the Convention . On DATE , the complaints officer heard the applicant who was assisted by ORG , a lawyer and member of the central committee of the GPE , such assistance having been granted by reason of the fact that the applicant had invoked the LAW . The complaints officer also examined CARDINAL witnesses , including CARDINAL , namely ORG , on the applicant 's behalf , and then confirmed the punishment while altering slightly the grounds stated therefore . He rejected the allegations under the LAW , referring to a judgment of ORG dated DATE .

On DATE , the applicant appealed to ORG against that decision . In accordance with LAW , the applicant 's successive appeals had the effect of suspending execution of his punishment ( paragraph CARDINAL above ) . The ORG heard the applicant and his above - mentioned legal adviser and obtained the opinion of ORG for ORG . On DATE , the ORG , without mentioning the applicant 's previous behaviour , reduced the punishment to DATE aggravated arrest , which sentence was executed thereafter . It considered that , in the circumstances , the committal to a disciplinary unit for DATE was too heavy a penalty .

The applicant alleges that in his case the calling of CARDINAL other witnesses on his behalf , namely ORG and PERSON , was prevented at every juncture . He also complains that the legal assistance granted to him had been restricted to the legal aspects of his case .

Mr. PERSON and Mr. PERSON

Mr. PERSON was serving as a private in ORG at the time of his application to the Commission . As editor of a journal called " Alarm " , published in stencilled form by the PERSON at the General PERSON barracks at GPE , he had collaborated in particular in the preparation of no . CARDINAL of that journal dated DATE . Acting in pursuance of LAW , a ministerial decree of DATE , the commanding officer of the barracks provisionally prohibited the distribution of this number , whose contents he considered inconsistent with military discipline .

On DATE , CARDINAL officers met in commission on the instructions of the commanding officer in order to hold an enquiry into the appearance of the said number . The applicant , among others , was heard by the commission .

On DATE , the applicant was sentenced by his competent superior to DATE committal to a disciplinary unit for having taken part in the publication and distribution of a writing tending to undermine discipline . The decision was based on LAW . CARDINAL of LAW , read in conjunction with the first paragraph of LAW which provides :

" Any person who , by means of a signal , sign , dumb show , speech , song , writing or picture , endeavours to undermine discipline in the armed forces or who , knowing the tenor of the writing or the picture , disseminates or exhibits it , posts it up or holds stocks of it for dissemination , shall be liable to a term of imprisonment not exceeding DATE . "

Entitled " The law of the strongest " ( PERSON ) , the article objected to in no . CARDINAL of " Alarm " alluded to a demonstration that had taken place at GPE on CARDINAL DATE on the initiative of the executive committee of the PERSON According to Mr. PERSON , the demonstration was terminated almost at once since the demonstrators had promptly returned to DATE following the promise by the commanding officer that , if they did so , no disciplinary sanctions would ensue . Nevertheless , a few soldiers were allegedly transferred soon afterwards for having participated in the incident .

The passages in the article which gave rise to the disciplinary punishment of CARDINAL DATE read as follows :

( a ) " There happens to be a General PERSON who writes to his ' inferiors ' ' I will do everything to keep you from violating the LAW ' ! But this very General is responsible for the transfers of GPE and PERSON . Yet , as you know , measures are never allowed to be in the nature of a disguised punishment . How devoted to the law the General is - as long as it suits him " ;

( b ) " ... in addition to ordinary punishments , the army bosses have at their disposal a complete series of other measures - of which transfer is CARDINAL - to suppress the soldiers . That does not come to an end by questions in ORG - that makes them at most more careful . That only comes to an end when these people , who can only prove their authority by punishment and intimidation , have to look for a normal job . "

The decision ordering the applicant 's committal to a disciplinary unit referred to the extracts quoted above . Furthermore , the decision took into account some aggravating circumstances : Mr. PERSON had collaborated in the publication of no . CARDINAL of the journal , which had likewise been prohibited under LAW " by reason of its objectionable contents ; in addition , he had taken part in the demonstrations at GPE and had , in particular , published in connection therewith a pamphlet , for which he received on CARDINAL DATE a punishment of strict arrest .

Mr. PERSON , a private in ORG at the time of his application to the Commission , was also an editor of the journal " Alarm " . The facts regarding his case are identical to those of Mr. PERSON 's except that his punishment initially amounted to DATE committal to a disciplinary unit owing to the additional aggravating circumstance of his participation in the publication of ORG for new recruits the distribution of which had been prohibited by reason of its negative content .

As early as CARDINAL DATE , the CARDINAL applicants announced their intention to complain about their punishment . According to them , they were then asked to refrain from any further publication while proceedings were pending against them . The Government maintain that they were only requested not to publish other articles tending to undermine military discipline . The applicants replied before the ORG that they had not the slightest intention to write such articles and that they had emphasised this on DATE before the commission of enquiry . According to the report of the latter , Mr. PERSON had declared that it was not at all his aim to write articles that he expected to be prohibited , and Mr. PERSON is recorded as saying : " When we produce pamphlets of this kind , it is not our intention that they should be prohibited . The intention is that they should be read . The risk of their being prohibited is great . "

Be that as it may , the applicants refused to give the undertaking requested and they were thereupon both placed under aggravated arrest in accordance with LAW .

The applicants complained about their punishment to the complaints officer who on DATE confirmed it , while in the case of Mr. PERSON slightly modifying the grounds . He rejected the applicants ' submissions , including those concerning ORG , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention . In connection with ORG and CARDINAL ( article CARDINAL , article CARDINAL ) , he referred to a decision of ORG delivered on DATE . The complaints officer also specified that the applicants should remain in interim custody in accordance with LAW .

The applicants appealed to ORG , Mr. PERSON on DATE and Mr. PERSON on DATE , invoking Articles CARDINAL , CARDINAL and DATE ( article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention .

Pursuant to LAW , the successive complaints and appeals by the applicants suspended their committal to a disciplinary unit but not their interim custody ( paragraph CARDINAL above ) .

On DATE , the ORG ordered release of the applicants after they had promised to accept the ORG 's judgment on the merits of the case , to comply therewith in the future and , while proceedings were pending against them , to refrain from any activity in connection with the compilation and distribution of written material the contents of which could be deemed to be at variance with military discipline . According to the applicants , this undertaking was given only in extremis as there was no legal remedy available to terminate their interim custody .

Like Mr. PERSON , the applicants had been assisted before ORG who was , however , able only to deal with the legal aspects of their case ( paragraphs CARDINAL - CARDINAL above ) .

DATE . On CARDINAL DATE ORG confirmed Mr. PERSON 's committal to a disciplinary unit for DATE , reduced Mr. PERSON 's committal from DATE and modified slightly the grounds for punishment in both cases . The ORG rejected as being ill - founded the applicants ' allegations . Making mention in both cases of their previous conduct and convictions , the ORG recalled particularly that they had previously participated in the publication and distribution of writings that were prohibited on the basis of the decree of DATE ( paragraphs CARDINAL - CARDINAL above ) . When fixing the punishment , the ORG deemed these factors to be indicative of their general behaviour .

The ORG then dealt with the applicants ' allegations under ORG CARDINAL , CARDINAL and DATE ( article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention , and also rejected them .

As regards LAW ) , the ORG held that the obligation to serve in a disciplinary unit did not constitute " deprivation of liberty " . In the alternative , adopting reasoning similar to that contained in its decision on Mr. PERSON 's appeal ( paragraph CARDINAL above ) , the ORG found that the disputed punishments had been justified under LAW para . CARDINAL ( b ) ( article CARDINAL - CARDINAL-b ) .

On the issue of LAW para . CARDINAL ( article CARDINAL ) , the ORG considered that the disciplinary proceedings relating to the publication of the journal " Alarm " had involved the determination neither of any " civil right " , such as freedom of expression , nor of any " criminal charge " ; on the latter point , the ORG based its decision on reasons similar to those given in the decision on Mr. PERSON appeal ( paragraph CARDINAL above ) .

The applicants also contended that the measures taken against them interfered with their freedom of expression . In this respect , the ORG relied on paragraph CARDINAL of Article CARDINAL ( article CARDINAL ) ; in its opinion , the restrictions objected to had been necessary in a NORP society for the prevention of disorder within the field governed by LAW .

Finally , the applicants maintained that their interim custody had been inconsistent with Article CARDINAL para . CARDINAL ( c ) ( article QUANTITY ) of the LAW and claimed compensation on this account under LAW para . CARDINAL ( LAW ) . ORG held that it had no competence to examine and decide such a claim .

DATE after the dismissal of their appeals , Mr. PERSON and Mr. PERSON were sent to ORG ) at ORG in order to serve their punishment . They were not allowed to leave this establishment during DATE ; moreover , they were both locked up in a cell during TIME .

Apart from the particular facts relating to Mr. PERSON and Mr. PERSON , there was in the background a pattern of conflict between the ORG and the GPE In DATE , for instance , there had occurred the demonstration at PERSON mentioned above at paragraph CARDINAL . The applicants also cite the fact that prior to their punishment , and in particular DATE and DATE , the Minister of Defence had decreed a great number of prohibitions on publications by the V.V.D.M. Furthermore , other servicemen , as editors of sectional journals of the ORG , had been punished in criminal or in disciplinary proceedings - by aggravated arrest , fines and , in CARDINAL case , military detention ( Article CARDINAL para . CARDINAL of LAW ) - for writing or distributing publications considered as likely to undermine military discipline within the meaning of LAW .

Since a ministerial instruction , dated DATE , and thus subsequent to the measures presently complained of , all cases involving a possible infringement of LAW have had to be submitted to the military criminal courts ( paragraph CARDINAL above ) and not to the disciplinary authorities . ORG of DATE , mentioned above at paragraph CARDINAL , was repealed on CARDINAL DATE .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in DATE and DATE respectively and currently live in GPE .

The applicants fled GPE and entered GPE illegally on various dates in DATE and DATE .

On various dates DATE and DATE , the applicants appeared at the office of the ORG High Commissioner for Refugees ( “ the ORG ” ) in GPE , which recognised their refugee status and issued them with refugee certificates on DATE .

On unspecified dates the applicants lodged asylum applications with the NORP authorities and sought residence permits . They were questioned twice by police officers from ORG on various dates in DATE for an assessment of their asylum request . During the questioning the applicants stated that they had been members of different illegal organisations and had been involved in anti - regime activities in GPE . They had either been detained on numerous occasions or sentenced to imprisonment and/or punishment by lashing . They all maintained that they would face a personal risk of ill - treatment or death if they were to be returned to GPE .

The applicants were permitted to live in PERSON pending the asylum proceedings and were allowed to leave the city boundaries subject to specific permission . In this connection one of the applicants ( GPE PERSON ) was issued with a permit allowing him to travel to GPE DATE for various resettlement interviews .

On an unspecified date the applicants ' asylum request was rejected by the authorities on the ground that they had not complied with the relevant criteria . In respect of the fourth applicant , the interview forms indicated that the authorities did not find the applicant 's replies credible and considered that he had left his country for higher economic standards .

On an unspecified date the applicants were apprehended and held at ORG for an undetermined period before they were notified of the deportation orders on DATE at TIME The deportation orders bear the signatures of the applicants and a translator . The applicants were deported to GPE on DATE .

Upon their arrival in GPE the applicants claimed to have been held in detention for DATE . They then had lived in LOC for DATE before they were resettled in GPE on DATE .

A description of the relevant domestic law can be found in the ORG 's judgment in the case of GPE and GPE v. GPE ( no . ORG , § § DATE , CARDINAL DATE ) .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The applicant was born in DATE and lives in GPE / Main .

The applicant was serving a prison sentence in Butzbach prison . In DATE the Butzbach prison authorities ordered him to move from his single cell to a cell which he would have to share with CARDINAL other inmates and which did not have a screen or curtain separating the toilet from the rest of the cell .

NORP By letter of DATE the applicant , referring to a decision given by ORG in DATE in a case concerning a different prisoner , informed the head of Butzbach prison that accommodation in such a cell was generally unlawful and that he refused to move . On that same date , the applicant lodged a motion with ORG , which was brought to the attention of that court only after the applicant ’s transfer to the multi - occupancy cell .

On DATE the prison staff ordered the applicant to vacate his single cell and announced that they would use force ( unmittelbarer GPE ) if he refused to do so . Accordingly , the applicant vacated his cell and was taken to the multi - occupancy cell . At the door of that cell , however , he again refused to move into the cell . Subsequently , a scuffle ensued between the applicant and prison staff . According to the applicant ’s submissions , he was kicked and beaten by the prison staff , while he had merely passively resisted being placed into the multi - occupancy cell . According to the Government , the applicant kicked the prison staff .

Subsequently , the applicant was forcibly taken to a security cell which had no items which could cause danger ( besonders gesicherter ORG ohne gefährdende Gegenstände ) , where he was strip - searched and undressed . It is not clear from the material submitted by the parties whether the applicant remained naked for the whole period of time he spent in the security cell .

The security cell had a size of QUANTITY and was equipped as follows : CARDINAL doors with chain link , CARDINAL cameras , CARDINAL milky glass pane for daylight , CARDINAL mattress with fire - proof sheet , CARDINAL squat toilet , CARDINAL call system , CARDINAL windows above the doors , aluminium ceiling with ventilation slits , tiled floor . The temperature of the cell was controlled to ensure comfort , and the meals were served at the usual times .

Following his placement in the security cell , the applicant was examined by the prison physician who diagnosed minor bruising on the applicant ’s front and his left shin and bruising and a small hematoma on his left thorax . On CARDINAL , CARDINAL , DATE , DATE and DATE the applicant was re - examined by the prison physician . According to the physician ’s report submitted on DATE , the injuries would heal without complications ; the bruising in the thorax area could , according to medical experience , cause discomfort for a longer period of time .

On DATE the applicant was visited by a psychiatrist .

On DATE the prison pastor visited the applicant . In his letter to the police dated DATE the pastor made the following statement :

“ As the security chain was locked , which permitted to open the door only slightly , I could see that the prisoner was naked . I am not sure whether he sustained injuries which exceeded bruises and refer to the medical report . However , the prisoner was in a very agitated state of mind and talked about having been beaten by prison staff . ”

On DATE the head of the prison administration made the following report :

“ Since DATE the prisoner is placed in the specially secured room ... Following his medical examination , it was intended to transfer him DATE to a multi - occupancy cell on station PERSON In the presence of the prison guards DATE and myself the prisoner PERSON declared that he insisted on his right to be attributed a single cell as provided by the case - law of ORG and that he would not leave the specially secured room . If this should be done by force , the prison guards would have to “ beat him to death ” . ”

On DATE the applicant was visited by the prison psychologist PERSON who made the following report on his conversation with the applicant :

“ I visited Mr PERSON on DATE in the segregation cell with the intention of finding a way out of the deadlock situation . However , Mr Hellig proved to be unable to compromise and stubbornly insisted on his request to be transferred to a single cell ... He could hardly imagine to remain in this prison after having been abused in connection with his placement in the segregation cell ... I have the impression that Mr Hellig is so obsessed that he is currently unable to compromise and to discuss a temporary solution . He feels mistreated and deprived of the single cell he previously occupied as a prison worker and station aid . Being a sportsperson and non - smoker , he could not be expected to share a cell with smokers . ”

The applicant stayed in the security cell until TIME on CARDINAL DATE when he consented to being placed in the prison hospital . Thereafter the applicant instituted the following CARDINAL sets of proceedings .

On DATE the applicant requested ORG to declare that his detention in the isolation cell and the force used by the prison authorities had been unlawful . He submitted that he had been kicked and beaten by prison staff even though he had not given the prison guards any reasons to use violence against him .

On DATE ORG rejected the request . The ORG took note of the written statements made by the prison pastor , the head of the prison administration and the prison psychologist ( see § § DATE , above ) . It further pointed out that it had been beyond doubt that accommodation in a multi - occupancy cell with toilets that were not separated by screens or curtains from the rest of the cell would have been unlawful , as ORG had already established in its earlier case - law .

According to ORG the fact that the applicant was taken to the isolation cell was not due to his refusal to move into the ORG multi - occupancy cell . It was in particular not a disciplinary measure to punish him for resisting , but he was detained in the isolation cell because his behaviour constituted a specific risk of violence and physical harm to other persons ( section QUANTITY , CARDINAL no . CARDINAL of FAC , see “ Relevant domestic law ” below ) , which allows for temporary detention in security cells .

The court based its findings on the statements of the prison personnel , who had confirmed that the applicant had begun pushing and hitting prison staff and that he had become very aggressive when he was ordered to move to the multiple occupancy cell . According to the official statements made by the prison guards , only the prisoner himself had used violence . In view of the applicant ’s violent behaviour it had been necessary for the prison authorities to use force to take the applicant into the security cell in order to prevent him from causing harm to the prison guards .

ORG further considered that “ it could not be established for certain ” whether there was a serious danger of self - injury or suicide during the time of his detention in the specially secured room .

Such detention was proportionate as it had not been possible to release the applicant from the cell before DATE . The applicant had announced that the staff members would have to kill him if they wanted to transfer him forcibly into the multi - occupancy cell . It was thus very likely that he would once again have resisted any such transfer . Therefore the specific risk of violent acts by the applicant persisted until DATE . Furthermore , the prison psychologist had stated that the applicant had not at all been ready to reach a compromise and , in particular , that he had stubbornly insisted on being transferred to a single cell .

On DATE the applicant filed an appeal on points of law . He submitted in particular that , under the relevant guidelines , the duration of detention in a specially secured room should not exceed TIME . It followed that his DATE placement had been disproportionate .

On DATE ORG declared the applicant ’s appeal inadmissible , reasoning that no decision in the matter was required for the purpose of further developing the law or to secure the consistency of the case - law .

On DATE the applicant lodged a constitutional complaint . He alleged that he had been kicked and beaten before being brought in the security cell , even though he had offered to consent to his placement in the security cell . He further submitted as follows :

“ In the instant case , I do not complain about the deprivation of liberty as such . However , the constitutional complaint is directed against the exceptionally severe conditions of my temporary detention ( “ besonders einschneidende Art und Weise meiner zeitweiligen PERSON ) during the execution of sentence . ”

On DATE ORG , relying on its Rules of Procedure , refused to admit the applicant ’s constitutional complaint , without giving further reasons .

On DATE ORG discontinued the criminal proceedings against the prison staff involved in the applicant ’s transfer to the security cell . ORG noted that the applicant ’s medical examination on CARDINAL . DATE established that he had sustained bruises . An x - ray taken DATE did not reveal any fractures or other bone injuries . It was thus established that the applicant suffered injuries on the occasion of his transfer into the security cell . It could , however , not be established whether these injuries had been caused by the prison staff , in particular by kicking or beating , or if they had been the unavoidable effect of his forced transfer to the security cell .

The relevant provisions of LAW read as follows :

Section CARDINAL ( Special Precautions )

“ ( CARDINAL ) Special precaution may be ordered in respect of a prisoner where , in view of his behaviour or on account of his mental state , there is increased danger of his escaping or danger of violent attacks against persons or property or the danger of suicide or self - injury .

( CARDINAL ) The following measures shall be permissible as special precautions :

detention in a specially secured room containing no dangerous objects ,

( CARDINAL ) Special precautions shall be continued only as long as is required by their purpose . ”

Section CARDINAL ( Supervision by Medical Officer )

“ ( CARDINAL ) Where a prisoner is detained in a specially secured cell or shackled ( section CARDINAL ( CARDINAL ) CARDINAL . CARDINAL and DATE ) the medical officer shall visit him soon and , if possible , DATE thereafter ...

( CARDINAL ) The medical officer shall be consulted regularly as long as a prisoner is deprived of DATE outdoor exercise . ”

Section CARDINAL ( Principle of Proportionality )

“ ( CARDINAL ) From among several possible and suitable measures of direct coercion those shall be chosen which will presumably least affect the individual and the general public .

( CARDINAL ) Direct coercion shall not be applied where any damage likely to be caused thereby would obviously be out of proportion to the desired result . ”

Section CARDINAL ( Request for a Court Ruling )

“ ( CARDINAL ) A measure regulating individual matters in the field of execution of imprisonment may be contested by requesting a court ruling ... ”

“ CARDINAL . The ORG pays particular attention to prisoners held , for whatever reason ( for disciplinary purposes ; as a result of their ‘ ORG or their ‘ troublesome’ behaviour ; in the interests of a criminal investigation ; at their own request ) , under conditions akin to solitary confinement .

The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary - confinement - type regime , which is a step that can have very harmful consequences for the person concerned . Solitary confinement can , in certain circumstances , amount to inhuman and degrading treatment ; in any event , all forms of solitary confinement should be as short as possible ... ”

From the ORG report on GPE DATE ( ORG ( CARDINAL ) :

“ CARDINAL . It should be added that the unit also contained an " observation cell " in which prisoners considered to be suicidal or likely to injure themselves could be located . Surveillance was maintained via an internally mounted ORG camera ... The delegation was informed that prisoners placed there would often be stripped of their clothes and left naked in the cell . Such a practice is completely unacceptable .

The ORG recommends that the practice of placing prisoners naked in the observation cell be ended immediately ; prisoners placed in this cell should be provided with tear - proof clothing and bedding ... ”

From the ORG report on GPE DATE ( ORG ( CARDINAL ( translation from the NORP original ) :

“ CARDINAL . ... To keep a prisoner naked in a cell constitutes , according to the ORG , degrading treatment . The ORG recommends that this practice be stopped immediately . Specially adapted clothing exists which permits the prisoner to keep a minimum amount of clothing while taking into account the risk of suicide . ”


The applicant was born in DATE and lives in GPE .

On DATE the applicant bought CARDINAL plots of land in the Bozcaada region of GPE from a private person by way of a bill of sale .

On an unspecified date , a land registry survey was carried out in the region , as a result of which the plots in question were registered in the name of the ORG .

On DATE the applicant raised an objection before ORG against the land registry survey and requested its annulment .

The first hearing was held on DATE . The applicant did not attend the hearings held DATE and DATE . Moreover , the hearings were adjourned DATE and DATE pending the determination of the applicant 's address by the ORG .

At the hearing held on CARDINAL DATE ORG ordered an on - site inspection of the plots in question . However , the official notice for the payment of the inspection fee was only served on the applicant on DATE , and the inspection was conducted on DATE .

On DATE ORG partially granted the applicant 's request in relation to CARDINAL of the plots in question . The court held that there was no record of ownership in the land register in respect of these CARDINAL plots and the applicant had therefore acquired title to them by way of adverse possession . The remaining CARDINAL plots , however , were registered in the ORG 's name in the land register and could not , therefore , have changed ownership by way of adverse possession . The bill of sale executed in DATE to convey the title of the disputed land was also void for the same reason . Moreover , even if the ORG had held no valid title to the plots in question , the conditions for adverse possession of unregistered land had not been fulfilled by the applicant in the instant case . The applicant , therefore , could not claim title to them . In reaching its decision ORG relied on a number of sources , including onsite inspection reports , statements from witnesses and local experts , title deeds , tax records , bills of sale , sketch plans and agricultural and technical expert reports .

After holding a hearing on the merits of the case , on DATE ORG upheld the judgment of ORG . On DATE ORG rejected the applicant 's rectification request . This decision was served on the applicant on DATE .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicants were born in DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE .

On DATE the ORG , ORG and ORG requested the annulment of the record in the title deed registry of the applicants’ father ’s and other ORG ( hereinafter “ the defendants ” ) ownership of CARDINAL plots of land ( nos . CARDINAL , DATE , DATE and DATE ) situated in the village of GPE .

On DATE , CARDINAL DATE and DATE ORG gave a decision on the merits of the case . Each of these decisions was in turn quashed by ORG .

In the course of the proceedings several defendants including Mr ORG ORG , who was the husband of the second applicant and the father of the remaining applicants , died . Shortly thereafter , in DATE , the applicants became parties to the proceedings .

On DATE ORG decided to annul the record in the title deed registry except for a part of plot no . DATE which remained under the name of the defendants .

On DATE ORG upheld the judgment of the first - instance court .

On DATE ORG dismissed the applicants’ request for rectification of its decision . This decision was not served on the applicants . However , it was sent to the registry of ORG on DATE .


Remainder inadmissible;Violation of Article 3 (in case of extradition to Colombia);Just satisfaction - finding of violation sufficient

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE . He is currently detained in remand prison GPE in GPE .

On DATE ORG , GPE ( “ GPE ” ) convicted the applicant of a crime provided for by LAW no . CARDINAL ( DATE ) , acknowledged as permanent law of GPE by Extraordinary Decree no . CARDINAL ( DATE ) , ( “ instruction in and teaching of military and terrorist tactics , techniques and methods , committed with mercenaries and accomplices ” ) and sentenced him to DATE imprisonment .

On DATE ORG , GPE ( “ Tribunal Superior de Manizales ” ) reduced the applicant 's sentence on appeal to DATE and DATE imprisonment , combined with a fine .

On DATE ORG issued an arrest warrant against the applicant on the basis of his conviction .

On DATE ORG issued ORG . DATE for the applicant 's provisional arrest with a view to extradition .

At TIME on DATE a group of servicemen of ORG of the ORG , assisted by ORG officers , arrested the applicant in GPE , GPE .

On DATE the GPE prosecutor 's office with responsibility for supervision of the implementation of laws on marine and air - borne transport ordered the applicant 's placement in custody , pursuant to LAW ( “ ORG ” ) , until his transfer to the country which had requested extradition . The decision gave the following reasons for application of a measure of restraint :

“ PERSON is a national of CARDINAL ORG , has no permanent place of residence and employment on the territory of GPE , and his extradition for the purpose of serving the sentence imposed by the judgment of GPE would be impossible without ensuring [ his ] placement in custody . ”

On DATE ORG ( “ GPE газета ” ) , a federal newspaper , published an article on its website entitled “ The ORG 's Teacher Awaits Extradition ” ( “ Учитель мафии ждет экстрадиции ” ) , covering the applicant 's story . The article read , in particular :

“ Having learned of the wanted mercenary 's arrest in GPE , the Vice - President of GPE PERSON , stated that ' it should be ensured that this gentleman rots in jail for [ his ] participation in the training of armed groups ' ..

The article did not contain any reference to the source of the information on the Vice - President 's statement .

On DATE the Ambassador of GPE in GPE informed ORG that ORG had been examining the possibility of extraditing the applicant , on condition that they be provided with a copy of the judgment against the applicant and with certain guarantees .

On DATE the NORP ORG informed the NORP Minister of ORG of the following :

“ Henceforth GPE , acting on the basis of the reciprocity principle , shall transfer persons wanted by NORP law enforcement agencies to GPE for relevant criminal prosecution or execution of sentences against such persons . Mr PERSON shall be provided with an opportunity to appeal against his conviction by the NORP judicial bodies ; Mr PERSON shall not be subjected to capital punishment or tortures , inhuman or degrading treatment or punishment ; Mr PERSON shall be indicted only in respect of the acts mentioned in the [ extradition ] request . ”

On DATE ORG Office of GPE ordered the applicant 's extradition to GPE . It was mentioned that the acts for which the applicant had been sentenced were punishable under NORP law and corresponded to the crime provided for by LAW of LAW ( “ assistance to terrorist activities ” ) . The sanction established for that crime stipulated imprisonment for a term exceeding DATE . The statute of limitations for the execution of sentences established by both NORP and NORP legislation had not expired . The differences in classification of the crime in the CARDINAL countries could not be a reason for a refusal to extradite . The applicant had not obtained NORP nationality . The Colombian Government guaranteed that the applicant would not be subjected to ill - treatment .

On DATE the applicant appealed to ORG against the order of DATE . He contended that , once in GPE , he might be subjected to ill - treatment . In support of this assertion he stated as follows :

“ [ A]ccording to ORG of DATE , the human rights situation in GPE remains extremely tense . As it is stated during the hearing of ORG of DATE , there is a serious escalation of violence directly linked to actions of members of governmental forces . The report contains allegations of those violations by [ the ] ORG prosecutor 's office ” .

He also referred to the unstable internal situation in GPE , caused by the civil war , and claimed that , as a result , the guarantees given by ORG were insufficient ; that the DATE statute of limitation for the execution of sentences under NORP law , as well as the DATE statute of limitations for criminal prosecution established by NORP law , had expired in his case ; that ORG wrongfully relied on LAW CARDINAL , which had not been in force at the time of the crime in question ; and that there was no extradition agreement between GPE and GPE . No copies of ORG TIME of ORG meeting were enclosed with the appeal submissions .

On DATE ORG dismissed the applicant 's complaint and upheld the order of DATE . The ruling stated that the applicant had not been convicted of political crimes and that the statute of limitation under both NORP and NORP laws had not expired . It was also stated that ORG had guaranteed that the applicant would have a right to appeal against his conviction and would not be transferred to a third country without the NORP authorities ' consent or subjected to ill - treatment . The in absentia criminal proceedings against the applicant had been carried out respecting the principle of a fair trial . Despite the absence of an extradition agreement between GPE , the applicant could have been transferred to the NORP authorities on the basis of the reciprocity principle . As to the alleged risk of ill - treatment in GPE , the ruling stated :

“ It follows from the materials submitted by the requesting ORG that the crime the applicant had been convicted of is not included in the category of political crimes and that he [ the applicant ] has not been persecuted for political reasons .

Therefore , [ the applicant 's ] allegations that he has been persecuted for political reasons , are unsubstantiated . ”

On DATE the applicant appealed to ORG of GPE against the first - instance ruling , on the grounds that that the statutes of limitations had expired , that the NORP law had been wrongfully interpreted and that there was no extradition agreement between GPE and GPE . He also referred to a media statement by the NORP Vice - President in which he had suggested that the sentence against the applicant had been too mild and thus “ shameful ” , and that it had to be ensured that the applicant would rot in jail . The applicant further alleged that the civil war in GPE had been ongoing since DATE and that it had caused widespread violations of human rights , including those of prisoners . He did not provide any details of the alleged violations . The applicant also claimed that the purpose of his extradition was to have him rot in jail .

On DATE ORG of GPE dismissed the appeal for the following reasons . ORG had given diplomatic assurances that the applicant would not be ill - treated if extradited . They had also stated that conditions of detention in NORP penitentiary institutions were decent and that NORP officials would have a right to visit those institutions for regular checks . There were no grounds to suspect that the applicant would be ill - treated if extradited . The applicant had not been persecuted on political grounds . According to ORG , officials ' media statements could not affect decisions already taken by the judiciary . The NORP Vice - President was not a hierarchical superior of the judiciary , ORG or the penitentiary service . The applicant 's actions were punishable under NORP law in force in DATE , which laid down a severer sanction than LAW of LAW . The appeal ruling read , in particular :

“ There are no grounds to believe that in the event of extradition PERSON would be subjected to torture in GPE and that the guarantees established by law , including LAW ORG , would not be respected in respect of him .

It follows from the materials of an extradition inquiry carried out by ORG that no facts of application to PERSON of cruel , inhuman or degrading treatment in the requesting ORG have been established . There is no basis to suppose that the person to be extradited would be subjected to such treatment or punishment in GPE in the future or that he would be subjected to the death penalty .

... The [ applicant 's ] allegations that he was persecuted on political grounds were justifiably considered by [ ORG ] as unsubstantiated . ”

The appeal ruling of CARDINAL DATE became final on DATE .

On CARDINAL DATE the applicant requested ORG , under LAW , to prevent his expulsion to GPE . He alleged that he would face a serious risk of ill - treatment if he were extradited .

On DATE the ORG indicated to ORG under Rule CARDINAL that the applicant should not be extradited to GPE until further notice .

On DATE the ORG news agency reported that “ GPE [ had ] attacked as insulting and flippant on DATE a decision by ORG to block the extradition of an NORP ex - army officer convicted of training illegal paramilitaries . ”

No one may be subjected to torture , violence or any other inhuman or degrading treatment or punishment ( LAW ) . The decisions and actions ( or inaction ) of ORG authorities , local self - government , non - governmental associations and public officials may be challenged in a court of law ( LAW ) . In conformity with the international treaties of GPE , everyone has the right to turn to inter - State organs concerned with the protection of human rights and liberties after all domestic remedies have been exhausted ( LAW ) .

GPE can extradite a foreign national or a stateless person to a foreign State on the basis of either a treaty or the reciprocity principle for standing trial or serving a sentence for a crime punishable under NORP legislation and the laws of the requesting ORG . An extradition on the basis of the reciprocity principle implies that the requesting ORG assures the NORP authorities that under similar circumstances they would grant a NORP request for extradition ( Article CARDINAL § § CARDINAL and CARDINAL ) .

Extradition can take place where ( i ) the actions in question are punishable by DATE imprisonment or a more severe sentence ; ( ii ) the requested individual has been sentenced to DATE imprisonment or a more severe punishment ; and ( iii ) the requesting ORG guarantees that the individual in question would be prosecuted only for the crime mentioned in the extradition request , that upon completion of the criminal proceedings and serving a sentence he or she would be able to leave the territory of the requesting ORG freely and that he or she would not be expelled or extradited to CARDINAL State without the permission of the NORP authorities ( LAW ) .

ORG or his or her Deputy decides upon the extradition request ( LAW ) . The decision by ORG or his or her Deputy may be appealed against before a regional court within DATE of receipt of the notification of that decision ( LAW ) .

NORP The regional court , sitting in a composition of CARDINAL judges , verifies the lawfulness and well - foundedness of the extradition decision within DATE of the receipt of the appeal , in a public hearing at which the prosecutor , the person whose extradition is sought and his or her counsel ( if the latter has participated in the earlier proceedings ) may participate ( Article CARDINAL § CARDINAL ) . The court does not examine issues of the individual 's guilt and is limited to verifying the compatibility of the extradition decision with NORP laws and treaties ( LAW ) . The court decides either to declare the extradition decision unlawful and to quash it or to dismiss the appeal ( LAW ) . The regional court 's decision can be appealed against before ORG within DATE of its delivery ( LAW ) .

The Conclusions and Recommendations of the Committee Against Torture with regard to GPE ( ORG ) , dated DATE , read as follows :

“ CARDINAL . The ORG reiterates its concern at the numerous acts of torture and ill - treatment reported widely and systematically committed by the ORG security forces and organs in the ORG party both during and outside armed operations . It also expresses its concern at the high number of forced disappearances and arbitrary executions ...

The ORG expresses its concerns that measures adopted or being adopted by the ORG party against terrorism and illegal armed groups could encourage the practice of torture ...

The ORG also expresses its concern at ... ( a ) the climate of impunity that surrounds human rights violations by State security forces and organs and , in particular , the absence of prompt , impartial and thorough investigation of the numerous acts of torture or other cruel , inhuman or degrading treatment or punishment and the absence of redress and adequate compensation for the victims ; ... ( e ) the overcrowding and poor conditions in penal establishments , which could be considered inhuman or degrading treatment . ”

The Concluding Observations of the Human Rights Committee : Colombia ( CCPR / CO/CARDINAL/COL ) , of CARDINAL DATE , read as follows :

“ CARDINAL . The ORG is concerned about the fact that a significant number of arbitrary detentions , abductions , forced disappearances , cases of torture , extrajudicial executions and murders continue to occur in the State party ... The ORG is also disturbed about the participation of agents of ORG in the commission of such acts , and the apparent impunity enjoyed by their perpetrators . ”

On DATE a mandate for activities of a field office of the ORG High Commissioner for Human Rights ( ORG ) in GPE was established by an agreement between ORG and the ORG . On DATE the parties agreed to extend the mandate , in its entirety , until DATE . The Report of the ORG High Commissioner for Human Rights on the situation of human rights in GPE ( ORG ) , dated DATE , reads as follows :

“ CARDINAL . ... [ I]t must be recognized that GPE has made progress in restoring security throughout the country in DATE , and the visibility given to human rights in the public agenda is a solid achievement .

The office [ of the ORG ] in GPE has received information on cases of torture , cruel , inhuman and degrading treatment and the excessive use of force by members of the security forces . ... [ I]n some extrajudicial executions attributed to ORG personnel , the victims had been tortured .

Complaints were made about illegal or arbitrary detentions in which warrants were exclusively based on the testimony of former guerrillas , which was not properly corroborated by other evidence ...

NORP Some judicial decisions have questioned the impartiality of witnesses , such as former guerrillas or paramilitaries who receive economic benefits for their testimonies ...

According to official data , overcrowding in prisons has reached an average of MONEY , and the situation is much worse in some establishments ... The current situation requires additional efforts and measures to meet the basic needs of prisoners , such as health , food , sanitation , legal advice and expert assistance ... ”

The Annual Report of the ORG High Commissioner for Human Rights on the situation of human rights in GPE ( A / HRC/CARDINAL/CARDINAL ) , of DATE , reads as follows :

“ The High Commissioner acknowledges the spirit of cooperation existing between the ORG and her ORG in GPE . She also notes the openness of the Government to addressing human rights challenges , as demonstrated during the universal periodic review process .

NORP ... In compliance with [ its ] mandate , PERSON GPE continues to assist the authorities in developing policies and programmes to promote and protect human rights , to advise civil society on human rights issues , to observe the situation of human rights and international humanitarian law in the context of the internal armed conflict , and to submit its reports and analyses to the High Commissioner .

The High Commissioner visited GPE from DATE to DATE . She met with the President , ministers , and senior public officials in charge of protecting and promoting human rights . She also met with representatives of civil society organizations , including human rights and women 's NGOs , victims ' associations and trade unions . The High Commissioner travelled to PERSON , where she learnt about the regional human rights challenges , meeting with community leaders and civilian and military authorities . The High Commissioner expressed to all her interlocutors her gratitude for the support that PERSON GPE has been receiving . She also highlighted the ORG 's efforts to promote accountability and respect for human rights within ORG and to demobilize paramilitary groups . While the High Commissioner noted the increased attention given to victims ' right to truth , justice and reparation , she also expressed concern at the persistence of entrenched human rights challenges .

The Special Representative of the Secretary - General for Children and Armed Conflict visited GPE from CARDINAL to DATE . ORG on Arbitrary Detention also visited the country from DATE .

On DATE , GPE was reviewed by ORG , in the context of the universal periodic review .

... [ T]he President initiated discussions with senior military commanders to address complaints of extrajudicial executions .

NORP However , the number of complaints about extrajudicial executions and the number of victims reported showed that institutional policies adopted by ORG and the army High Command to combat this practice have not , as of DATE , led to a significant decrease in such violations . Renewed efforts are needed to guarantee the effectiveness of and strict compliance with institutional policies to prevent and punish extrajudicial executions .

By DATE , the Attorney - ORG had initiated investigations into CARDINAL cases of alleged extrajudicial executions which occurred in DATE . In addition , CARDINAL additional cases , most of which occurred in DATE and DATE , were referred to the Attorney - General 's ORG in DATE . ORG is currently investigating nearly CARDINAL cases related to CARDINAL victims . These figures confirm that extrajudicial executions are not isolated events , but a widespread practice committed by a large number of military units throughout the country ...

OHCHR GPE was informed of cases of cruel , inhuman and degrading treatment or punishment attributed to members of the security forces in GPE , GPE and PERSON ...

NORP In DATE PERSON GPE noted cases of serious inhuman and degrading treatment of inmates at the prison of Valledupar ( PERSON ) , as well as excessive use of force by prison guards to put down protests . ”

DATE Country Reports on Human Rights Practices – Colombia , issued by ORG on DATE , reads as follows :

“ GPE is a constitutional , multiparty democracy ... In DATE independent presidential candidate PERSON was reelected in elections that were considered generally free and fair . The CARDINAL-year internal armed conflict continued between the government and terrorist organizations , particularly the ORG ( ORG ) and ORG ( ELN ) . While civilian authorities generally maintained effective control of the security forces , there were instances in which elements of the security forces acted in violation of state policy .

Although problems remained , the government 's respect for human rights continued to improve , which was particularly evidenced by progress in implementing the ORG and LAW .

Torture and Other Cruel , Inhuman , or Degrading Treatment or Punishment

Although the law prohibits such practices , there were reports that the police , military , and prison guards sometimes mistreated and tortured detainees . Members of the military and police accused of torture were tried in civilian rather than military courts . ORG asserted that , during DATE , government security forces were involved in CARDINAL incidents of torture , a PERCENT increase compared with DATE . ORG also reported that , during DATE , there were CARDINAL victims of torture by the armed forces .

Prison and ORG

With the exception of new facilities , prison conditions were poor , particularly for prisoners without significant outside support . ORG ( ORG ) runs the country 's CARDINAL national prisons and is responsible for inspecting municipal jails .

Overcrowding , lack of security , corruption , and an insufficient budget remained serious problems in the prison system . As of DATE 's end , CARDINAL prisoners were held in facilities designed to hold CARDINAL ; overcrowding rates exceeded PERCENT in CARDINAL installations . Many of ORG 's CARDINAL prison guards and administrative staff were poorly trained . ORG in ORG with ORG noted that improved training , increased supervision , and more accountability for prison guards has helped , but expressed fear that greater privatization of the prisons system may lead to further corruption .

Constrained budgets adversely affected prison conditions . ORG spent MONEY ( $ MONEY ) DATE on each inmate for food . Private sources continued to supplement food rations of many prisoners .

ORG reported that during DATE there were CARDINAL violent deaths among inmates related to fighting and riots . From DATE , there were CARDINAL riots at various penal institutions . ORG continued to investigate allegations that some prison guards routinely used excessive force and treated inmates brutally . According to ORG ( ORG ) , there were CARDINAL judgments for excessive force made against prison guards during DATE .

Political Prisoners

The government stated that it did not hold political prisoners . Some human rights advocacy groups characterized as political detainees some detainees held on charges of rebellion or terrorism in what the groups claimed were harassment tactics by the government against human rights advocates . During DATE there were CARDINAL prisoners accused of rebellion or aiding and abetting insurgence , CARDINAL of whom were accused of supporting the ORG . The government provided the ICRC access to these prisoners . ”


CASE OF NOVAYA GAZETA V VORONEZHE v. RUSSIA

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

On DATE the ORG v Voronezhe newspaper ( “ the newspaper ” ) published an article by Mr PERSON entitled “ Atomic Mayor ” ( « PERSON мэр ORG ) . The article concerned abuses and irregularities allegedly committed by PERSON , the mayor of GPE , and by other municipal officials , including PERSON , a deputy head of administration and director of the economy and finance department , and PERSON , the chairman of the education committee . The article also mentioned certain private parties who supplied goods or performed services for the municipal authorities , including PERSON , a local businessman who did renovation work for Statefunded institutions .

The article quoted extensively from the ORG on ORG , carried out by ORG of ORG for GPE from DATE ( “ the audit report ” ) .

On DATE Mr S. , PERSON , PERSON and PERSON lodged an action for defamation against the applicant . They claimed that the following extracts from the article were untrue and damaging to their reputation :

“ ... In DATE a group of campaigners in GPE collected signatures for a vote of no confidence in PERSON They collected CARDINAL signatures ... ” [ paragraph CARDINAL ]

“ ... For a long time the GPE town administration failed to transfer payments to the compulsory medical insurance fund . In the mayor 's opinion , these transfers were not mandatory , but a commercial court decided otherwise . Thanks to S. , in DATE the town budget will lose a further MONEY ] ... ” [ CARDINAL ]

“ ... Mayor PERSON still adheres to the ideas of Socialism and Communism ; not only once did he enter the ranks of ORG of GPE ... occasionally he left its ranks ... ” [ CARDINAL ]

“ ... [ In addition to the budget , ORG has an off - budget fund . And a substantial one . ] CARDINAL would only wonder at the way the mayor and his faithful companion , comrade PERSON , the head of the economy and finance department doubling as executive director of all funds , handled its assets ...

Thus , thanks to the efforts of CARDINAL prominent economists , the town lost an amount comparable to CARDINAL of the DATE budget ... ” [ CARDINAL , CARDINAL ]

“ The chairman of the education committee of the PERSON administration , PERSON , did not produce any documents showing that these students came from needy or large families as he claimed ... ”

What kind of needy families were these if even PERSON , the chairman of the education committee , does not know them ? ” [ CARDINAL , CARDINAL ]

“ Inquisitive readers would ask : why did PERSON care so much about the military unit in the village of PERSON and the regional psychiatric hospital ( let 's recall the charitable contribution of MONEY made to the hospital ) ? And they would start looking for an answer .

Is it not in military unit no . DATE that the son of the aforementioned official is doing his military service ?

Is it not in the regional psychiatric hospital that a relation or a namesake of PERSON has just undergone a medical examination in order to escape punishment for a serious criminal offence ? ... [ CARDINAL - CARDINAL ]

And what about the honest Mayor PERSON ? He does not know , perhaps , about the tricks of his deputy ?

On the contrary . He does know and he even personally signs payment orders for the transfer of money to the ORG enterprise ' GPE regional clinical psychiatric hospital ' ... ” [ CARDINAL , CARDINAL ]

“ The thing is that the notion of competitions ( tenders ) for the provision of services for ORG - funded organisations ceased to exist in the town long ago . If our fair and NORP - minded mayor PERSON ( they have done much business together ) , he could have as much work as he liked . He could supply computers at MONEY a piece and feed children in kindergartens at inflated prices ... ” [ CARDINAL ]

“ ... During the audit an estimate of the repair work actually performed in the town stadium was made up . The cost of the actual work done amounted to MONEY . So , Mr S. and Mr F. , where have MONEY gone ? ... ” [ CARDINAL ]

On DATE the ORG of GPE ( “ the trial court ” ) took evidence from the parties . The plaintiffs produced judgments of commercial courts pursuant to which the amount of MONEY ( RUB ) had been recovered from the GPE municipal authorities in respect of payments to the medical insurance funds . PERSON also produced a document showing that he had been a member of ORG since DATE and never relinquished his membership .

The applicant had at its disposal ordinary copies of the audit report and the report of CARDINAL DATE on the verification of the work done at the stadium and shooting gallery ( “ the stadium report ” ) . Since ordinary copies , as opposed to certified copies , had no evidentiary value , the applicant asked the trial court to obtain the originals . The trial court refused the request because the applicant had not shown that it had attempted to obtain the originals itself .

NORP Throughout DATE the applicant unsuccessfully sought to obtain the originals from ORG of ORG for GPE , the town department of the interior and ORG and ORG .

The applicant renewed its request for a court injunction requiring the relevant authorities to submit the original documents .

On DATE the trial court refused the request , without citing any reasons in the text of the judgment . Mr S. withdrew his claim in the part concerning paragraph CARDINAL of the article .

On DATE the trial court issued its judgment . It found that all the extracts contested by the plaintiffs had been untrue and damaging to their reputation . The trial court premised its findings on the following principles :

“ In such cases , pursuant to LAW , the defendant shall prove the truthfulness of the information disseminated , whilst the plaintiff is only required to show that the defendant disseminated the information . Not only assertions , but also conjectures shall be amenable to proof . Damaging conjectures which are shown to have been unfounded in a court hearing will give rise to an apology . Reliance on rumours , hearsay , opinions of anonymous experts , competent sources , etc . as the basis for the damaging information shall not relieve the defendant from the obligation to show its truthfulness ... ”

The trial court decided that CARDINAL of the article implied the embezzlement of funds by PERSON and Mr F. However , it noted that the audit report assessed the total cost of work at RUB MONEY and that the defendants failed to adduce any proof of embezzlement .

The trial court accepted Mr S. 's opinion that statements in DATE , DATE , DATE , DATE , DATE and DATE of the article impaired his honour , dignity and reputation . In the trial court 's view , it was incorrect to say that the town “ would lose a further CARDINAL thanks to the mayor ” because the payments had been mandatory anyway and , after they had been withheld for some time , a court had ordered their recovery in the same amount . The information on Mr S. 's “ discontinuous ” party membership was considered untrue because he showed that he had joined ORG once and had not relinquished his membership ever since . The trial court held that in paragraph CARDINAL the author wrongly blamed PERSON and PERSON for stopping the funding , because the structure of off - budget funds was regulated by federal government decision . Lastly , as to paragraph DATE , the trial court determined that it conveyed an impression that dishonest men , acting under the mayor 's patronage , had made a profit out of kindergartens , but the authors did not produce any evidence showing the truthfulness of that allegation .

As regards PERSON , the trial court held that DATE , CARDINAL and DATE of the article were untrue and damaging for his reputation because the defendants failed to prove that PERSON had been the executive director of “ all funds ” , that a relation of his , especially a criminal , had been in hiding in the psychiatric hospital or had been treated there , and that he and PERSON had misspent the town 's budget .

The trial court accepted PERSON view that the allegations of abuses in the selection of students and his personal involvement in them ( paragraphs DATE and DATE ) had been insulting for him .

The judgment stated :

“ Thus , the court has concluded that the plaintiffs ' claims are well - founded because the author and the editors tolerated the publication of an article that contained insulting and untrue statements ... without bothering to check all the relevant facts . In accordance with the law ... evidence should have been collected before the information was published and it is inappropriate to start collecting evidence after the article was published ... Moreover , the plaintiffs have produced before the court a reply from the ORG prosecutor 's office and a decision of the NORP police department refusing criminal prosecution in connection with the audit of certain financial matters in the education committee of GPE in DATE . ”

The trial court ordered the applicant to pay RUB CARDINAL to Mr S. , as well as RUB CARDINAL,CARDINAL to PERSON , PERSON and PERSON , respectively , that is , RUB CARDINAL in total , and also to publish an apology .

On DATE the applicant filed a detailed appeal statement , claiming that the article had concerned an issue of public interest and that the plaintiffs , being “ public figures ” and ORG servants , should have been more tolerant to criticism than ordinary citizens . The article was largely founded on the audit report and the district court did not afford the applicant an opportunity to prove the truthfulness of any statements of fact as it refused their request to obtain original documents . Moreover , the trial court ordered the applicant to refute value judgments . The appeal statement read , in so far as relevant , as follows :

“ As regards the first document [ ... ] , [ the trial court ] referred to the fact that there was no need to request it because the case file contained a decision by the senior police officer of the GPE GOVD [ main department of the interior ] to institute a criminal investigation into the facts mentioned in the report by the LAW [ ORG ] .

As regards the second document [ ... ] , the [ trial ] court referred to the fact that [ it had been stated ] in the reply by the GPE GOVD to the editorial board 's request to provide the document that the ORG did not have the document in question as it had been forwarded to the ORG prosecutor 's office , and that there was therefore no need to request it from the ORG . ”

On DATE ORG upheld the judgment of DATE . It held that the applicant 's arguments that the article had contained value judgments rather than statements of fact was “ unsubstantiated ” . The court reasoned , in so far as relevant , as follows :

“ The dissemination of the information that the plaintiffs seek to refute was proven before the [ trial ] court and has not been disputed by the respondent . Accordingly the newspaper was obliged to submit evidence before the [ trial ] court to prove the truthfulness of the information in question .

However , no such evidence was presented before the [ trial ] court . ”

On DATE the applicant transferred RUB CARDINAL to the bank account of the bailiffs ' service in execution of the judgment of DATE .

The applicant published an apology in DATE issue of the newspaper retracting the information contained in the article .

Article CARDINAL of the LAW of the Russian Federation guarantees freedom of ideas and expression , as well as freedom of mass media .

Article CARDINAL of LAW of GPE of DATE provides that an individual may seize a court with a request for the rectification of information ( сведения ) damaging his or her honour , dignity or professional reputation unless the person who disseminated such information proves its accuracy . The individual may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such information . The rules governing the protection of the professional reputation of a physical person are likewise applicable to the protection of the professional reputation of legal entities .

Resolution no . CARDINAL of ORG of GPE of DATE , as amended on DATE ( in force at the material time ) provided in its LAW that to be considered damaging the information ( сведения ) had to be untrue and contain statements about an individual 's or a legal entity 's breach of the laws or moral principles ( commission of a dishonest act , improper behaviour at the workplace or in everyday life , etc . ) . Dissemination of information was understood as the publication of information or its broadcasting , its inclusion in professional references , public addresses , applications to ORG officials , as well as its communication in other forms , including orally , to CARDINAL other person . DATE ORG governed the distribution of the burden of proof in defamation cases . The plaintiff was to show that the information in question had been disseminated by the defendant . The defendant was to prove that the disseminated information was true and accurate .