Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by PERSON , a lawyer practising in PERSON .

On DATE the applicant distributed pamphlets to passers - by near gynaecologist PERSON medical practice . The front page contained inter alia the following text :

“ Stop unlawful abortions in Dr. PERSON ’s medical practice ” ( PERSON in der Praxis Dr. PERSON “ )

indicating the physician ’s full name and address . It further contained the following sentences :

“ Did you know that unlawful abortions are performed in ORG in Dr. PERSON ’s practice ? ” ( „ Wussten Sie schon , dass in H. in der Praxis von Dr. PERSON rechtswidrige Abtreibungen durchgeführt werden ? ” )

The verso contained the sentence :

“ Please support our struggle against the unpunished killing of unborn children ” ( “ PERSON , helfen sie uns i m PERSON gegen die straflose GPE ungeborener PERSON . ” )

PERSON , who performed abortions in accordance with the legal conditions laid down in LAW § § CARDINAL and CARDINAL of LAW ( see relevant domestic law , below ) , raised an action for an injunction . He alleged that the applicant ’s statement was incorrect , as he performed abortions exclusively within the legal framework . On DATE ORG ( Landgericht ) , by way of an interim injunction , ordered the applicant to desist from further asserting or disseminating the allegation that Dr. PERSON performed unlawful abortions ( rechtswidrige ORG ) . This interim injunction was confirmed by ORG ( Oberlandesgericht ) on DATE .

The applicant alleged that the impugned statement was correct . Relying on ORG case - law , he pointed out that abortions which were performed under LAW CARDINALa § CARDINAL following obligatory counselling , but without medical indication as required by LAW § CARDINAL , where unjustified and thus unlawful . He further asserted that his statement was covered by his right to freedom of expression .

On DATE ORG confirmed the injunction in the main proceedings . Basing its decision on Article CARDINAL in conjunction with Article CARDINAL of LAW , that court considered that the applicant ’s statement , seen from the point of view of an unbiased and knowledgeable public , contained the allegation that the abortions were performed outside the legal conditions of LAW CARDINALa of LAW and were thus subject to criminal prosecution . It could not be expected from the average reader to draw the distinction between the act of abortion which was justified under LAW CARDINALa LAW and the act of abortion which was merely exempt from prosecution under LAW CARDINALa § CARDINAL of LAW . Seen from a layman ’s point of view , only those acts of abortions were considered “ unlawful ” which did not comply with either of the prerequisites laid down in LAW CARDINALa of LAW .

The applicant could not rely on the allegation that the impugned statement was true . Having regard to the fact that the pamphlet was not addressed to lawyers , but to laypersons , it was not decisive whether the statement was true from a strictly judicial point of view .

ORG did not find it necessary to establish whether the impugned statement had to be regarded as a statement of facts or whether it also contained a value judgment . In any event , the physician ’s interest in the protection of his personality rights prevailed over the applicant ’s right to freedom of expression . ORG conceded that the impugned statement could be regarded as a contribution to the debate on questions of public interest which merited special protection under the right to freedom of expression . However , in the present case the infringement on the physician ’s personality rights was so severe that it prevailed over the applicant ’s right to freedom of expression . The statement did not only concern his professional , but also his personal reputation . On the other hand , the applicant could have easily clarified that the abortions performed by the physician were not subject to criminal liability . ORG finally noted that the physician , who had not actively participated in the public debate on abortion , had not given him any reason to attack him as a private person .

On DATE ORG rejected the applicant ’s appeal . That court confirmed ORG finding that the applicant ’s statement , seen from the point of view of an “ average reader ” , contained the accusation that the doctor performed abortions without respecting the legal provisions . Further to ORG findings , ORG considered that the applicant ’s statements were suited adversely to affect the physician ’s professional activities by deterring potential clients .

On DATE ORG ( ORG ) refused to allow the applicant ’s appeal . That court did not consider it necessary to establish whether the interpretation given to the applicant ’s statement by the lower courts had been correct . In any event , the applicant had singled out the physician , who had been performing his professional activities within the legal framework , and had produced a “ pillory effect ” ( “ Prangerwirkung ” ) . The entailing violation of the physician ’s personality rights was so severe that the applicant ’s right to freedom of expression had to cede .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant ’s complaint for adjudication . That court considered that the interpretation attributed to the applicant ’s statement by ORG and ORG was not necessarily the only possible one . It noted that ORG had considered in a similar case that the impugned statement did not contain the allegation that the abortions performed were subject to criminal liability . Even accepting the statement ’s ambiguity , ORG considered that the interpretation given by the domestic courts was to be taken into account . The relevant passages read as follows :

“ In contrast to the examination of penal or civil law sanctions for a statement which has already been made , when a claim for an injunction to desist from uttering an ambiguous statement in the future is examined , the court has to chose among several possible interpretations the one which violates [ the plaintiff ’s ] personality rights or , if this is the case with several interpretations , the one which more seriously violates personality rights . In the present case , this is the interpretation given by the civil courts , and not the interpretation favoured by the complainant with reference to ORG decision , according to which the statement referred to the distinction between criminal justification and exemption from criminal liability of different kinds of abortions under LAW .

The complainant ’s right to freedom of expression is not violated by the request to clarify the content of his statement with regard to further dissemination in order to avoid a conviction to desist from uttering the statement and in the interest of the plaintiff ’s personality rights . There are no indications that the applicant could not reasonably be expected to clarify that the abortions performed in PERSON practice are not subject to criminal liability by using unambiguous words also on the pamphlet ’s front page . ”

ORG further confirmed the civil court ’s finding that the allegation that the physician performed unlawful and thus punishable abortions was untrue , as the physician undisputedly performed abortions within the legal framework . The court further considered that the civil courts had correctly weighed the conflicting interests , that is to say the applicant ’s right to freedom of expression and the physician ’s personality rights . With regard to the scope of the applicant ’s right to freedom of expression , ORG found as follows :

“ The impugned decisions can not be understood as preventing the complainant from publicly militating against the exemption from criminal liability and against the performance of abortions and from employing polemic or exaggerated terms . The present case concerned statements which were directed against CARDINAL single person and infringed that person ’s personality rights . It follows that that the physician ’s interests , insofar as they were in conflict with the right to freedom of expression , had to be taken into account . ”

ORG further considered that there was no objection from a constitutional point of view against taking into account a so - called “ pillory effect ” derived from singling out CARDINAL person , as long as the courts adequately weighed the conflicting interests . ORG observed that the plaintiff had been identified by his full name and address as a person performing unlawful acts . This constituted a serious violation of his personality rights . Furthermore , the plaintiff had not given the applicant any reason to single him out .

On DATE the applicant walked up and down the street in front of Dr. PERSON ’s medical practice , carrying a poster with the text “ abortion kills unborn children ” ( “ QUANTITY ungeborene NORP ” ) on the front and “ You shall not kill . Also applies to doctors ” ( “ Du sollst nicht töten . Gilt auch für GPE ” ) on the back . He also addressed passers - by and the physician ’s presumed patients .

Dr. PERSON lodged a request for an injunction with ORG , alleging that the applicant ’s behaviour unsettled and deterred his patients and thus seriously disturbed the proper functioning of his medical practice .

On DATE ORG , basing its decision on Article CARDINAL in conjunction with Article CARDINAL of LAW , ordered the applicant to desist from addressing patients and passers - by in a specified area in front of Dr. PERSON ’s medical practice and from pointing out that Dr. PERSON performed abortions .

ORG considered that the applicant ’s behaviours disturbed the physician in the performance of his professional activities , which were protected as part of his personality rights . Insofar as the applicant relied on his right to freedom of expression , a fair balance had to be struck between the conflicting interests .

ORG observed that the applicant , by addressing presumed patients in the area of the physician ’s practice and by drawing public attention to the latter ’s activities , considerably disturbed the very sensitive relationship between the physician and his patients . This could not only lead to economical disadvantages , but also damaged the physician ’s reputation .

ORG further considered that the applicant ’s right to freedom of expression entitled him publicly to criticise physicians performing abortions . However , the means the applicant employed in order to express his criticism in the direct vicinity of this specific physician ’s premises exceeded the acceptable limit . The financial losses the physician had to envisage as a result of the applicant ’s behaviour were disproportionate .

On DATE ORG rejected the applicant ’s appeal . ORG confirmed that the applicant ’s behaviour was likely to deter the physician ’s current and potential future patients . While conceding that the applicant had the right publicly to criticise the performance of abortions , the means employed by him had been disproportionate . ORG further considered that Dr. PERSON , who had not called for any public attention , had been singled out by the applicant in order to exemplify a general problem , thus producing a “ pillory effect ” . ORG further considered that the applicant had acted with the intention to disturb the physician ’s relationship to his patients and to cause financial damage .

On DATE ORG granted the applicant leave to lodge an appeal on points of law .

On DATE ORG dismissed the applicant ’s appeal on points of law . That court confirmed ORG finding that , under the circumstances of this particular case , the physician ’s personality rights prevailed over the applicant ’s right to freedom of expression . Further to ORG considerations , ORG pointed out that the physician ’s activities were lawful and enjoyed protection under the constitutional right to freedom to exercise his profession . In this context , the court emphasised the important role which the legislator had attributed to the gynaecologists both in the protection of the unborn life and in the protection of the health of the women concerned . It was essential that the relationship of trust between the physician and his patients was not disturbed by the intrusion of external parties . The applicant ’s actions adversely affected the plaintiff ’s activities in an unacceptable way .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant ’s constitutional complaint for adjudication as being ill - founded , as it did not find fault with ORG decision . This decision was served on the applicant ’s counsel on DATE .

The relevant provisions of the criminal code read as follows :

Section CARDINAL

Abortion

“ ( CARDINAL ) Whosoever terminates a pregnancy shall be liable to imprisonment of not DATE or a fine . Acts the effects of which occur before the conclusion of the nidation shall not be deemed to be an abortion within the meaning of this law .

( CARDINAL ) In especially serious cases the penalty shall be imprisonment from DATE . An especially serious case typically occurs if the offender acts against the will of the pregnant woman ; or through gross negligence causes a risk of death or serious injury to the pregnant woman .

( CARDINAL ) If the act is committed by the pregnant woman the penalty shall be imprisonment of not DATE or a fine .

( CARDINAL ) The attempt shall be punishable . The pregnant woman shall not be liable for attempt . ”

Section CARDINALa

Exception to liability for abortion

“ ( CARDINAL ) The offence under LAW shall not be deemed fulfilled if

the pregnant woman requests the termination of the pregnancy and demonstrates to the physician by certificate pursuant to section CARDINAL ( CARDINAL ) CARDINALnd sentence that she obtained counselling DATE before the operation ; the termination of the pregnancy is performed by a physician ; and not more than DATE have elapsed since conception .

( CARDINAL ) The termination of pregnancy performed by a physician with the consent of the pregnant woman shall not be unlawful if , considering the present and future living conditions of the pregnant woman , the termination of the pregnancy is medically necessary to avert a danger to the life or the danger of grave injury to the physical or mental health of the pregnant woman and if the danger can not reasonably be averted in another way from her point of view . ”

ORG , in its leading judgment ( BVerfGE CARDINAL , CARDINAL ) , accepted in the end abortions being performed by physicians after the pregnant woman having obtained counsel by a third person , and developed a rather singular approach by qualifying certain acts of abortion as unlawful , but not punishable . Abortions which are performed without the establishment of a medical indication must not be treated as being justified ( not unlawful ) ( ORG , die ohne ORG nach der GPE vorgenommen werden , dürfen nicht für gerechtfertigt ( nicht rechtswidrig ) erklärt werden ) . However , abortions performed by a physician within DATE after conception and following obligatory counselling are considered to be unlawful , but are exempt from criminal liability .


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE .

In DATE the applicant went to a bar for a few drinks . He met his female acquaintance who was in the company of CARDINAL DATE girls whom he had not met before . Afterwards , they all decided to leave the bar in a taxi . They dropped off the applicant ’s acquaintance at her home and continued to the applicant ’s apartment . The applicant , and apparently also the girls , continued drinking and talking . According to the statement given by the applicant in ORG ( käräjäoikeus , tingsrätten ) , after a while he called a taxi for the girls and gave them money for the fare . He claims that the next time he heard of the girls was DATE when the police contacted him and suspected him of a sexual offence .

The ORG version of the early evening ’s events was roughly the same as the applicant ’s but differed considerably as concerned the events at his apartment . The girls claimed that while they were in the applicant ’s apartment , he had sexual intercourse with one of the girls after she had fallen asleep , and that he attempted to rape the other one . Immediately after this had happened , the girls decided to leave . One of the girls called a taxi and the applicant gave them money for the fare . When they got home , the mother of CARDINAL of the girls called the police . A police patrol came and the police interviewed the girls . The girl who alleged that she had been raped refused to see a doctor .

The applicant was questioned for the first time on DATE . The public prosecutor brought charges against him on DATE . ORG held an oral hearing on DATE at which only the applicant and the girls were heard .

On DATE the ORG gave its judgment . It acknowledged that the parties’ accounts of the facts diverged greatly . The majority of the ORG judges found that the ORG account was more reliable than the applicant ’s . Their stories were coherent and consistent . It was not credible that the girls could have invented the allegations . The fact that the girl who had been raped did not see a doctor immediately after the incident was of no relevance . The applicant was convicted of sexual abuse and attempted coercion into sexual intercourse ( sukupuoliyhteyteen pakottamisen yritys , försök till tvingande till samlag ) , sentenced to a conditional prison sentence of DATE and DATE and fined . CARDINAL judge found the applicant ’s account of the facts to be more reliable and gave a dissenting opinion .

By a letter dated DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) , requesting that an oral hearing be held as he had been convicted on the basis of conflicting evidence . The ORG testimonies before ORG had differed from their accounts given during the pre - trial investigation and were inconsistent . The girl who claimed to have been raped had not seen a doctor after the alleged offence . Moreover , the police had started to investigate the crime as rape . However , since rape was such a serious offence the police should have arrested the applicant immediately and conducted a crime - scene investigation in his apartment . Instead , the applicant had been questioned for the first time DATE .

On DATE ORG decided to apply the filtering procedure ( seulontamenettely , sållningsförfarandet ) and rejected the request for an oral hearing . It upheld ORG judgment without examining the case any further .

By a letter dated CARDINAL DATE the applicant appealed to ORG ( korkein oikeus , högsta domstolen ) , complaining about the use of the filtering procedure and reiterating the grounds of appeal relied on before ORG . He referred , inter alia , to LAW .

On DATE ORG refused leave to appeal .

The filtering procedure used by ORG is based on LAW , sections CARDINAL and CARDINAL , of LAW ( oikeudenkäymiskaari , rättegångsbalken ) , which has been in force since DATE .

ORG may filter a case , that is , uphold the District Court’

Section CARDINAL of the Code of Judicial Procedure ( Act no . PERSON ) provides :

“ ( CARDINAL ) The Appeal Court shall hold a main hearing regardless of whether CARDINAL has been requested , if a decision on the matter turns on the credibility of the testimony admitted in ORG or the findings of ORG in an inspection , or on new testimony to be admitted in ORG . In this event , the evidence admitted in the ORG shall be readmitted and the inspection carried out again in the main hearing , unless there is an impediment to this .

( CARDINAL ) If the evidence referred to in paragraph ( CARDINAL ) can not be readmitted at the main hearing , the decision of the ORG shall not be changed for that part , unless the evidence for any special reason is to be assessed differently . However , a decision on a charge may be altered in favour of the defendant in a criminal case . ”

In the filtering procedure the material to be taken into account comprises the appeal documents , the finding of ORG as well as any possible reply .

The Constitutional Law Committee ( perustuslakivaliokunta , grundlagsutskottet ) stated in its opinion CARDINAL concerning the filtering procedure ( see government bill HE CARDINAL ) the following :

“ A fair trial requires in some situations the holding of an oral hearing at the appellate level . The consideration of a matter can not , according to subsection CARDINAL of the proposed section , be discontinued in the filtering procedure if a full - scale procedure is necessary for the purposes of the legal security of the parties . The appeal courts are therefore required to apply the provisions on the filtering procedure in a way that meets the requirements of basic and human rights , for example so that the decisions made when using the filtering procedure do not , in an individual case , violate the right to an oral hearing . "

Since the introduction of the filtering procedure ORG has given numerous judgments on the applicability of the procedure . According to its case - law , a full examination and an oral hearing are necessary when ORG finding depended on the credibility of oral evidence . The credibility of oral statements and the evaluation of testimonies both require an oral hearing to be held .


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

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

The applicants are a married couple . The second applicant has a daughter , born in DATE . According to a report by the social authorities , made after the daughter ’s birth , the second applicant was not capable of forming an attachment to her daughter . The second applicant also has CARDINAL sons , born in DATE and DATE respectively . All CARDINAL children live with their respective fathers . The youngest son moved to his father after an investigation by the social authorities in DATE had led to the conclusion that his needs were not being met in the home of the applicants . Previously , the second applicant had received various forms of support from the authorities to enable her to take care of that son . The applicants also have CARDINAL sons together , born in DATE , DATE and DATE , respectively . The eldest and the youngest of the common sons live with the applicants .

On DATE the applicants’ second son , PERSON , was born , DATE prematurely . His twin brother was dead at birth . PERSON was thereafter treated at the hospital for serious complications . He had CARDINAL cerebral haemorrhages , a serious infection and a deformation of the lungs which made it necessary for him to lie in a respirator for DATE . Thereafter he was given oxygen until DATE . On DATE he was released from the hospital and moved home to his parents .

On DATE personnel at the hospital in PERSON , where PERSON had been treated until that date , reported to ORG ( socialnämnden ) in ORG that there were doubts as to the applicants’ ability to take care of him . Similar observations were made at the hospital in GPE , where PERSON was treated after DATE .

The ORG started an investigation into the matter . Having consulted hospital personnel , the applicants and the contact person who had been appointed to assist the applicants , the ORG concluded that there had been several serious incidents which indicated that the applicants were unable to handle unforeseen situations . While there had been no medical problems , PERSON had been given too much food and , as a consequence , he had had to undergo a medical examination . Moreover , the applicants were , in general , unable to understand and satisfy his needs regarding hunger , sleep and peace . The hospital personnel had had to give them a lot of support and inform them repeatedly how to take care of PERSON . The second applicant had made numerous telephone calls to the hospital , expressing anxiety about his eating and defecating habits . On DATE she had called the hospital several times as PERSON had been crying for TIME during TIME . She had stated that the situation was too much for her and her husband and that they wished to return him to the hospital . She was told that this was possible , but that CARDINAL of the parents had to stay with him , which they were unwilling to accept . The hospital personnel were also concerned about his older brother ’s situation . Having regard also to the results of the investigation in DATE , the ORG considered that the second applicant , who was on early retirement due to psychological problems , lacked the ability to establish a safe and secure connection to her children and to stimulate them . While the first applicant , an unemployed assistant nurse , had a better contact with the children , he was not able to take care of a child as demanding as PERSON without the support of his wife .

On DATE , having regard to the results of the investigation , the ORG decided , pursuant to section CARDINAL of the Act with Special Provisions on ORG ( ORG med särskilda bestämmelser om vård av unga , TIME ; hereinafter “ the DATE LAW ) , to take PERSON into public care immediately on a provisional basis . He was placed with the contact person and her husband , acting as a so - called family home . The applicants had not given their consent to this measure . The decision was confirmed by ORG ( länsrätten ) in GPE on DATE .

On DATE ORG applied to ORG for a care order concerning PERSON under section CARDINAL § CARDINAL and section CARDINAL of LAW . In the application , the ORG emphasised that PERSON was a very demanding child due to the medical complications that had occurred in connection with his birth , that he had a great need of rest and calm and that he depended on those in charge of him to observe and interpret his signals properly . The ORG maintained that the applicants were not able to meet PERSON ’s needs in an adequate way .

The applicants stressed , for their part , that they had not had enough time to get over the difficult circumstances surrounding PERSON ’s traumatic birth , including the death of his twin brother , and that they had not been given the opportunity to prove that they were able to take care of PERSON .

Following an oral hearing held on DATE , ORG , by a judgment of DATE , granted ORG application and issued a care order . The ORG agreed with the conclusions drawn by the ORG and found that there was a clear risk of impairment of the health and development of PERSON due to the applicants’ inability to satisfy his needs . According to the court , they DATE in particular the second applicant DATE were incapable of understanding and following instructions about PERSON ’s feeding and of handling more demanding situations . It considered , with some hesitation , that he could not be cared for in the applicant ’s home with various support measures , as the applicants had not been able to take care of him despite having received help TIME per day from the social authorities . As the applicants did not consent to the placement in the family home , compulsory care had to be given under LAW .

On DATE ORG ( kammarrätten ) in GPE , which also held a hearing in the case , upheld ORG judgment . With reference to ORG report , the appellate court stressed that PERSON needed more care and nursing than children of his age normally did and that already at the hospital there had been doubts as to the applicants’ ability to take care of him . Especially the second applicant had difficulties in understanding his needs and letting them prevail over her own wishes . According to the court , the investigation also showed that these difficulties had persisted when PERSON had left the hospital and moved home to his parents . Among other things , there had been deficiencies in his nourishment and feeding and he had not had enough peace and rest . The court also considered that the great number of telephone calls to the hospital showed that the applicants had not been able to handle the situation . The court found that PERSON ’s father had a better parental ability than his mother . Nevertheless , the investigation did not support the conclusion that the father ’s parental ability – even with the additional help from the social authorities DATE could compensate for the mother ’s deficiencies in this respect . Further , the court observed that , at the hearing , the mother had expressed a very negative attitude towards various support measures . It concluded that it was clear that PERSON had to be taken care of by other persons than the applicants in accordance with the ORG ’s care plan , namely in the family home .

On DATE ORG ( Regeringsrätten ) refused the applicants leave to appeal .

Subsequently , ORG DATE approximately DATE reconsidered PERSON ’s need of continuous care . On DATE the ORG decided that he should remain in the family home . It observed that he had developed in a positive way in the family home . Noting that PERSON visited his parents once or twice a week , the ORG considered that they were still unable to understand his situation and see to his needs .

On DATE ORG again decided that the compulsory care should continue . The applicants appealed to ORG which , on DATE , following an oral hearing , upheld the ORG ’s decision . The court concluded that the applicants lacked the capacity to give PERSON the care that his great special needs required . The applicants did not appeal against the judgment .

Further decisions that PERSON should remain in the family home were taken by ORG on DATE and DATE and on CARDINAL DATE . The decisions were based on reports which , inter alia , concluded that PERSON had a slow and delayed motor development and that his psychosocial development was also delayed . He needed a lot of help with most things , due to his age and his disabilities and required extensive stimulation and training in order to develop favourably . He had had regular and increased contact with his parents . While initially he had been accompanied by the foster mother on visits to the applicants’ home , he had later begun to spend time with them alone and had even stayed TIME on some occasions .

According to section CARDINAL § CARDINAL and section CARDINAL of the DATE Act , compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person DATE due to ill - treatment , exploitation , lack of care or any other condition in the home and if the necessary care can not be provided with the consent of the young person ’s custodian . The decision whether to place a young person in public care is made by ORG following an application from ORG .

Under section CARDINAL of the LAW , ORG may order the immediate taking into care of a young person ( “ provisional care order ” ) if it is likely that he or she needs to be provided with care under LAW and a court decision in the matter can not be awaited owing to the risks facing the young person ’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented . A provisional care order shall be put before ORG which shall rule on whether the order shall be upheld pending the court ’s judgment regarding the application for public care .


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

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

On CARDINAL and DATE the HADEP ( PERSON – People 's Democracy Party ) held its annual congress in GPE . The applicant participated in the congress as a delegate from ORG . During the congress , he was elected secretary of the board . While some of the delegates were reading their reports , a group of masked persons entered the congress building and chanted slogans in support of the ORG . They subsequently pulled down the NORP flag and hung up a ORG banner and posters of PERSON .

On DATE , on the instructions of ORG Chief Public Prosecutor , police officers surrounded the congress building . When the congress was over , the police arrested the applicant as he was leaving the building . The police also arrested the executive board members of ORG , the chairman and deputy chairman of the congress , as well as those involved in the pro - ORG actions . The applicant was taken to the anti - terror branch of ORG , where he was allegedly kept in a cell with CARDINAL other persons and subjected to verbal abuse .

On DATE the applicant was brought before ORG and subsequently placed in detention on remand .

On DATE the public prosecutor at ORG filed an indictment with the court . He accused the applicant of being a member of an illegal organisation , namely the ORG . He referred to the events that had taken place during the HADEP congress . The prosecutor considered that as the applicant had been acting as secretary of the board during the congress , he could have stopped the masked persons from pulling down the NORP flag and from displaying the ORG banner and posters of PERSON . The prosecutor called for the applicant to be sentenced pursuant to LAW for aiding and abetting a terrorist organisation .

On DATE the applicant was released pending trial .

During the trial , the applicant maintained that he was not a member of the group which had pulled down the NORP flag . He denied any responsibility for the impugned acts and requested to be acquitted .

On DATE ORG delivered its decision . In the first place , the court found it necessary to distinguish the case from a simple case of insult to the NORP flag . It took into consideration the statement of CARDINAL of the accused persons who had pulled down the flag during the congress . In his statement , this accused person had explained that he had been acting on the instructions of ORG officials . He stated that several university students had been brought to GPE by bus to participate in the congress and had been instructed to shout slogans in support of the ORG and to hang posters of Öcalan and ORG banners on the walls . The court further noted that this was the first time that such a big NORP flag had been hung in a congress building . According to the court , this act was planned by the ORG officials in order to provoke a reaction .

The court further examined video footage taken during the congress and concluded that the applicant , who was acting as secretary of the board during the congress , could have stopped the masked individuals from carrying out their acts . The court stated , inter alia ,

“ ... All the accused persons are competent and responsible persons in the ORG . They had therefore the possibility of interrupting or even suspending the congress . By doing so , they could have helped the police force to capture the ORG militants who had taken down the NORP flag and put up posters of PERSON instead ... On the contrary the accused persons hid the ORG militants by forming groups and they assisted them in performing their activities ... ”

In delivering its decision , ORG further referred to sections CARDINAL of ORG Act DATE , which concerned the membership of , support for and meetings of proscribed organisations and display of support to such organisations in public .

ORG convicted the applicant of aiding and abetting the members of a proscribed organisation and sentenced him to DATE and DATE imprisonment pursuant to LAW ( Law no . CARDINAL of CARDINAL DATE ) .

The applicant appealed . ORG quashed the judgment of ORG on the ground that the case file lacked relevant information and documents . The case was sent back to ORG .

While the proceedings were pending before ORG , on DATE new legislation ( Law No . DATE ) , which governed the conditional release , suspension of proceedings or execution of sentences in respect of offences committed before DATE , came into force . The court accordingly suspended the proceedings against the applicant . According to LAW . DATE , these proceedings would be resumed only if the applicant were to commit an offence of the same or more serious kind within DATE of the court 's decision to suspend the proceedings .

Pursuant to LAW . DATE , it was open to the applicant to request ORG to continue the proceedings against him . However , he did not make such a request .


NORP The applicant company owns QUANTITY . m plot of land on the island of GPE , a popular tourist destination in GPE .

On DATE , by decision no . CARDINAL/CARDINAL of the Prefect of the LOC islands , the ORG expropriated real estate covering a surface of QUANTITY m , with a view to installing floodlights for FAC . CARDINAL sq . m of the applicant company ’s land were expropriated .

On DATE the ORG applied to ORG of the island of GPE for a provisional amount of compensation per square metre of land expropriated to be assessed . The applicant company was not summoned to appear and did not do so .

On DATE the court assessed the provisional amount of compensation .

On DATE the provisional compensation was paid to ORG , but the applicant company refused to accept it on the ground that it was substantially less than the value of the land that had been expropriated from it .

On DATE the applicant company had applied to ORG of LOC for a final amount of compensation per square metre to be assessed . It had also sought special compensation for CARDINAL other parcels of its land that had not been expropriated , on the ground that their value had diminished as the expropriated part had divided the land in CARDINAL .

On DATE ORG assessed the final amount of compensation and special compensation for the CARDINAL unexpropriated parcels .

On DATE the ORG appealed to ORG .

On DATE ORG upheld ORG judgment in so far as it had assessed the final amount of compensation and remitted the case to ORG to rule on the merits of the action brought by the applicant company on DATE .

On DATE ORG dismissed the applicant company ’s claim for special compensation in respect of CARDINAL of the CARDINAL unexpropriated parcels of land . The difference between the amount of compensation as provisionally assessed and as finally assessed by ORG was not at that time paid to the applicant company .

On DATE the applicant company applied to ORG of LOC for a declaration that the expropriation had been rescinded by operation of law as the final amount of compensation due had not been paid .

On DATE ORG dismissed that application as unfounded .

On CARDINAL DATE the difference between the amount of compensation as provisionally assessed and the amount as finally assessed by ORG was paid to ORG . The applicant company , which has not yet accepted that sum , alleges that it was not at any stage advised that it had been deposited .

On DATE the applicant company appealed to ORG against the judgment of DATE . It also sought an order that the ORG pay the costs of the proceedings .

On DATE ORG upheld the impugned judgment and dismissed the applicant company ’s appeal . It also held that the applicant company was to bear the costs . In the earlier stages of the proceedings , there had been a set - off between the parties in respect of costs , even though the applicant company had requested that the costs be borne by the ORG .


No violation of Art. 2 (substantive aspect);No violation of Art. 2 (procedural aspect)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant lives in Kursk . She is the mother of PERSON , born in DATE and deceased in DATE while serving his prison sentence .

On DATE Yevgeniy Geppa was found guilty of organised violent robbery and , following appeal proceedings before ORG which ended on DATE , was sentenced to DATE of imprisonment in a high - security penitentiary facility . He was sent to serve his sentence in IK-CARDINAL in GPE , LOC .

In the periods from DATE and from DATE he was transferred to the hospital of ORG in Kursk for treatment for chronic pyelonephritis of his only kidney in the active phase .

On DATE he was transferred to the same hospital , having been diagnosed with a psychiatric disorder , namely , “ past organic brain lesion of complex origin ” ( owing to a head injury and drug abuse ) , with emotional instability and compensatory behaviour . It was noted that his medical history included a reference to epileptic syndrome .

On DATE , following changes introduced to LAW , the Kursk ORG reduced the applicant 's prison sentence to DATE and ordered it to be served in a facility of average security level . PERSON was therefore transferred to the LOC correctional colony LOC ( учреждение OX-CARDINAL/CARDINAL , hereafter “ the colony ” ) .

In DATE PERSON wife received a letter from him . His distorted handwriting , repetitive use of words and confused language made her suspect that he was unwell .

On DATE the applicant and PERSON wife visited him in the colony . They found him very weak , pale and exhausted . He had lost weight and had a blank expression . During the visit he fainted and collapsed on the floor ; according to the applicant , when they pulled up his shirt they saw faded bruises of yellow - greenish colour on his chest . They also saw clotted blood on his lips . PERSON told them afterwards that he was being beaten by the colony officials because he had refused “ to co - operate ” , that is , to systematically report on his fellow inmates . According to the ORG , PERSON had an epileptic fit on DATE and his medical examination did not reveal any injuries .

On DATE the applicant wrote to ORG complaining that her son had been ill - treated at the colony , referring to the incident of CARDINAL DATE when he fainted during the visit ; she described the injuries they had allegedly found on his chest and lips and also complained that he was not receiving medical care . She contended that this had not happened in the previous detention facility and had only started after her son 's transfer to correctional colony OX-CARDINAL/CARDINAL . She requested that he be transferred elsewhere .

From DATE to CARDINAL September CARDINAL Yevgeniy Geppa was transferred to the hospital of ORG in Kursk for examination and treatment . He was diagnosed with a psychiatric disorder , namely , “ past organic brain lesion of complex origin ” ( owing to a head injury and drug abuse ) , with emotional instability and compensatory behaviour , and epileptic syndrome . In addition , he was diagnosed with chronic pyelonephritis of his only kidney at the stage of remission ; it was recommended that he be placed in the psychiatric hospital of GPE .

In the meantime , on DATE the applicant received a reply from the Kursk ORG of ORG to the effect that the on - site inspection conducted following her complaint had established that the conditions of her son 's detention complied with the law and there were no grounds to transfer him to another facility . It was also stated that he was provided with medical care when necessary .

On DATE the applicant and PERSON wife visited him in the colony for the last time . According to the applicant , when they met him he had had a fever and had been shivering despite being dressed in a DATE jacket and gloves . He had allegedly told them that he had pain “ all over inside ” and splitting headaches but that the colony medical staff had refused to see him and had accused him of faking the illness . He had also allegedly told them that he had requested a transfer to the psychiatric hospital of ORG of GPE ( the psychiatric hospital of GPE ) because he could not bear the constant beatings any longer . Before they said goodbye he had told them that he felt he was dying and they would probably not see him again .

On DATE the applicant wrote to ORG complaining that her son was being ill - treated at the colony . She complained about the beatings , the deterioration of his health and the lack of medical assistance . She requested that he be given a medical examination to identify the cause of his headaches , stomach and chest pains , and deteriorating eyesight . She also requested to see his pre - transfer medical records from IK-CARDINAL and the colony medical records relating to the period DATE and DATE .

On DATE ORG replied to the applicant that her enquiry had been examined by its medical division . It informed the applicant that PERSON medical file at the colony contained records on his past organic brain lesion of complex origin ( owing to a traumatic brain injury and drug abuse ) , with emotional instability and compensatory behaviour , and epileptic syndrome ; he was also diagnosed with chronic pyelonephritis of his only kidney at the stage of remission . It stated that he was receiving the necessary medical care . When interviewed , PERSON had refused to be placed in the hospital of ORG but had given his consent to be placed in the psychiatric hospital of GPE . A similar letter was sent to her on DATE , adding that no physical force had been applied against PERSON and informing her of his transfer to the psychiatric hospital of GPE .

On DATE Yevgeniy Geppa was taken to the psychiatric hospital of GPE . On the way a stop was made at DATE , where he asked to see a doctor . The medical examination revealed several symptoms of medium severity , such as a “ confused state of consciousness ” . After he had been given medication his condition improved , and he was sent on to GPE .

On DATE Yevgeniy Geppa arrived at the psychiatric hospital of GPE . The medical examination conducted on his arrival established that his condition was serious , he was unable to walk by himself , was pale and his extremities were cold . He could communicate with the doctor , but quickly became exhausted . Symptomatic treatment began immediately and further examinations were ordered .

On DATE Yevgeniy Geppa had a general blood test . On DATE he had a chest x - ray and an electrocardiogram . On DATE he had an HIV test , which was negative .

On DATE Yevgeniy Geppa underwent an x - ray brain scan that revealed hypertension . On DATE an electroencephalogram was performed , and it was concluded that there was probably a pathological formation in the left hemisphere . He also had a stomach x - ray on DATE .

On DATE he had a general ultrasound abdominal scan that revealed some changes in the liver and pancreas . On DATE he was seen by an infection specialist , who did not find any infection .

On DATE he was seen by a neurologist who ordered a brain ORG scan , which was performed on DATE and confirmed the presence of a formation in the left hemisphere . It was followed by a consultation with a neurosurgeon , who advised against surgery . On DATE an oncologist diagnosed PERSON with a brain tumour and oedema of the brain .

On DATE Yevgeniy Geppa died .

On DATE an autopsy , including a histological study , was conducted and established that PERSON death was caused by a brain tumour ( glioblastoma multiforme ) .

Following Yevgeniy Geppa 's death ORG conducted an inquiry in order to decide whether there were grounds for a criminal investigation . On DATE it decided that no criminal investigation was necessary . The decision referred to the autopsy report , the medical file , and the statements of the hospital director and detainee PERSON , who was employed at the hospital .

On DATE the applicant complained to ORG about the beatings to which her son had allegedly been subjected in the colony and alleged that there had been a negligent failure to provide him with medical assistance ; she also alleged that his transfer to the psychiatric hospital had been delayed without justification .

On DATE the prosecutor 's office decided that there were no grounds to open a criminal investigation into PERSON death . The prosecutor 's office had questioned the colony officials and inmates , who made the following statements :

– the head officer of unit no . CARDINAL where Yevgeniy Geppa was held stated that he had not received any complaints that physical force had been applied to Mr Geppa and had not seen any injuries on him ;

– inmate PERSON stated that upon his arrival at the colony PERSON had had certain health complaints , in particular he had mentioned that he was suffering from epilepsy ; he had not seen any injuries on him and had not heard any complaints about the use of force against him ;

– inmate PERSON . stated that he had not seen any injuries on PERSON and had not heard any complaints about the use of force against him ;

– inmate PERSON . stated that his sleeping place in the dormitory had been next to PERSON and that he had not seen any injuries on him or heard any complaints about the use of force against him ;

– an officer of the visits and parcels section , PERSON , stated that on CARDINAL August CARDINAL PERSON had been visited by his wife and mother and that TIME into the visit he had had an epileptic fit and had been taken to the medical unit ; PERSON mother had not mentioned seeing any injuries on him ;

– an officer of the visits and parcels section , PERSON . , stated that on DATE he had searched PERSON before the visit , though without removing his clothes , and had not seen any injuries on him ; following an epileptic fit during the visit PERSON had been taken to the medical unit ; his mother had not mentioned seeing any injuries on him ;

– inmate PERSON . stated that on CARDINAL occasion in DATE he had accompanied PERSON from the medical unit back to unit no . CARDINAL ; PERSON had spent CARDINAL or two hours in the medical unit ; on the way he had not heard any complaints ; he could not say whether PERSON had had any injuries ;

– an officer of the medical unit , PERSON , stated that on CARDINAL DATE he had attended to PERSON after he had fainted during the visit ; when examined , PERSON had been conscious ; he had diagnosed him with epileptic syndrome and given him an injection of seduxen ; he had had a bruise on his knee ; no other injuries had been revealed ;

– the head of the medical unit stated that Yevgeniy Geppa had been registered with the colony medical unit as suffering from a psychiatric disorder , namely , “ past organic brain lesion of complex origin ” ( owing to a traumatic brain injury and drug abuse ) , with emotional instability and compensatory behaviour , and epileptic syndrome . From DATE to DATE he had been transferred to the hospital of ORG for examination and treatment ; the above diagnosis had been confirmed and in addition to that he had been diagnosed with chronic pyelonephritis of his only kidney at the stage of remission . It had been recommended that he be placed in the psychiatric hospital of GPE . In the colony PERSON had been provided with adequate medical care ; on DATE he had been transferred , with his consent , to the psychiatric hospital of GPE .

The applicant challenged the decision of DATE in court .

On DATE the ORG of Kursk found that the inquiry conducted by the prosecutor 's office into PERSON death had been insufficient . It referred in particular to the failure to verify the allegations of ill - treatment and indicated that it was necessary to establish the origin of the head injury and the brain tumour which caused his death . The court granted the applicant 's request and ordered the prosecutor 's office to carry out the inquiry in accordance with law . The prosecutor 's office appealed .

On DATE ORG upheld the decision of ORG dated DATE . Following this decision the prosecutor 's office requested ORG to send PERSON medical file and the autopsy report to it .

On DATE the applicant requested the prosecutor 's office to grant her victim status in the criminal proceedings concerning her son 's death . She also requested access to documents from his medical file .

On DATE the prosecutor 's office quashed its decision of CARDINAL DATE refusing to open a criminal investigation and an additional inquiry was ordered . The applicant was informed of the decision ; she was also informed that there were no grounds to grant her victim status .

On DATE the prosecutor 's office decided to refuse to institute criminal proceedings concerning PERSON death . It stated that an additional inquiry had been carried out , which had included an examination of the medical file and questioning of the psychiatrists of the colony and of the hospital of ORG . It was established that the cause of death , the brain tumour , was consistent with the earlier diagnosis indicated in the colony medical file . It was also noted that PERSON had sustained a head injury in DATE and in the past he had abused alcohol , psychotropic substances and home - brewed narcotics ; he had also been diagnosed with epilepsy . It was therefore concluded that there were no grounds to believe that the colony staff had committed a crime against PERSON .

The applicant challenged the decision of CARDINAL DATE in court .

On DATE ORG declared the decision dispensing with criminal proceedings unlawful . It found that the investigation file was incomplete and the prosecutor 's conclusions contradictory , in particular with reference to the failure to verify the origin of the head injury and the brain tumour , as well as PERSON state of health and the adequacy of his medical treatment prior to his transfer to the psychiatric hospital . The prosecutor 's office appealed .

On DATE the prosecutor 's office sent a number of official inquiries to medical institutions . It asked ORG if PERSON had been under their supervision in the past ; it requested the details of his treatment for his head injury in DATE from ORG and ORG . Finally , it requested the director of the specialist oncology clinic to explain the origin , the development pattern , methods of diagnosing and treatment of the brain tumour with which PERSON had been diagnosed and the recovery rate for the disease . The latter enquiry does not appear to have been answered .

On DATE ORG upheld , in substance , the decision of ORG dated DATE .

On DATE the prosecutor 's office quashed its decision of CARDINAL DATE refusing to open the criminal investigation and an additional inquiry was ordered . The applicant was informed about the decision and provided with a copy thereof .

NORP On DATE the administrative officer of the hospital of ORG in Kursk wrote an explanatory note for the investigation file . He stated that during his in - patient treatment at the hospital PERSON had showed no symptoms of formation of a brain tumour . Early signs of the tumour could have only been detected by a GPE scan , which had not been possible in the hospital for the lack of the requisite equipment . Moreover , there had been no apparent reason to order a GPE scan .

On DATE the prosecutor 's office decided to refuse to institute criminal proceedings concerning PERSON death . It referred to the medical records dated DATE relating to his head injury and concluded that it had predated his imprisonment . It further stated that the medical equipment available at the institutions and medical centres of the penitentiary system could not be used to diagnose the early stages of a brain tumour or to assess the necessity of a GPE scan . The scan was recommended on DATE , after the examination at the psychiatric hospital , and carried out on DATE , DATE before PERSON death . It was therefore concluded that there had been no grounds to believe that the colony staff had caused PERSON injuries or had been negligent in deciding to transfer him to the psychiatric hospital for examination . The applicant was informed about the decision and provided with a copy thereof .

On DATE ORG declared the decision dispensing with criminal proceedings unlawful . It found that the inquiry had failed to establish a link between the head injury sustained by PERSON in DATE and his death in DATE and had also failed to substantiate the conclusion that the medical care received by PERSON had been appropriate for his condition . The court indicated that the above defects could only be remedied by a proper investigation and criminal proceedings and therefore it had been mandatory to open a criminal file . The court also pointed out that the procedural law did not allow a DATE preliminary inquiry to be conducted more than once .

On DATE the prosecutor 's office of Kursk requested the prosecutor 's office of GPE to provide it with PERSON medical file from the psychiatric hospital of GPE and the autopsy report .

On DATE the prosecutor 's office decided to refuse to institute criminal proceedings concerning PERSON death . It essentially reiterated the contents of the decision of DATE , adding that the prosecutor 's office of GPE had not replied to the request of DATE , hence there was no new information that would allow the allegations of medical negligence to be confirmed . The applicant was informed about the decision and provided with a copy thereof .

On DATE the prosecutor 's office of GPE forwarded the requested documents to the prosecutor 's office of Kursk .

On DATE the prosecutor 's office quashed its decision of CARDINAL DATE refusing to open a criminal investigation and an additional inquiry was ordered . The applicant was informed about the decision and provided with a copy thereof . On DATE the term for additional inquiry was extended from DATE in order to obtain the medical expert opinion .

DATE . On DATE the prosecutor 's office requested the director of ORG to explain the origin of , the possible cause of and methods of diagnosing the brain tumour found in PERSON . The director was asked whether the tumour could have been caused by Mr Geppa 's head injury , whether it was treatable and whether Mr PERSON 's death could have been avoided if timely medical treatment had been provided .

On DATE the clinic director and the head of the clinic 's neurosurgery department replied as follows :

“ CARDINAL . The cause of cancerous brain tumours ( glioblastoma multiforme ) is currently unknown .

NORP Neither scientific research data nor our experience confirms any link between brain injuries and [ tumours ] .

Early signs of a brain tumour formation are general brain and localised neurological symptoms and changes in the fundus of the eye .

Glioblastoma multiforme is one of the most malignant forms of brain tumour with the period between its formation and death varying DATE depending on its location .

The prognosis of this disease , regardless of the promptness of its diagnosis and specialist treatment , is extremely negative , the disease not being susceptible to treatment . ”

On DATE the prosecutor 's office decided to refuse to institute criminal proceedings concerning PERSON death . In addition to the medical documents and witness statements relied on in the previous decisions , it referred to the medical opinion of DATE given by the ORG director . It concluded that there had been no evidence of violence or medical negligence having contributed to his death . The applicant was informed about the decision and provided with a copy thereof . She appealed against this decision in court .

On DATE ORG declared the decision dispensing with criminal proceedings unlawful . It found that the inquiry had failed to address the reasons for the diagnosis having been established so late despite PERSON frequent examination and treatment ; the court could not rule out that there had been an unjustified delay in providing him with specialised medical care and pointed out that the negative prognosis did not absolve the penitentiary and medical staff from taking all the necessary steps in order to diagnose and treat him . The prosecutor 's office appealed .

On DATE the ORG quashed the decision of CARDINAL DATE on the grounds that it had failed to specify the shortcomings in the investigation that the prosecutor 's office had to remedy . The case was remitted to the same court for a fresh examination .

On DATE the ORG found the decision dispensing with criminal proceedings lawful and justified . Addressing the applicant 's argument that the investigators had failed to request the medical file from the psychiatric hospital of GPE , the court observed that the file had actually been obtained , that it had been attached to the investigation file and , furthermore , that it had been directly examined in the courtroom .

On DATE the applicant was given the opportunity to access PERSON medical file .

Article CARDINAL § CARDINAL of LAW of GPE provides as follows :

“ A detainee who has acquired a serious illness [ other than psychiatric ] which prevents him from serving his sentence may lodge a request with a court for [ early ] release ... [ This request ] must be lodged by the detainee through the administration of the penitentiary institution ... The said request must be accompanied by the expert opinion of a medical commission or a socio - medical expert institution and the detainee 's prison record . ”

On DATE the Government of GPE adopted Decree no . DATE establishing a list of diseases incompatible with serving a prison sentence . That list included malignant tumours ( cancer ) in stage IV according to ORG classification ( point CARDINAL of the decree ) and kidney diseases in the terminal phase with chronic renal failure .


No violation of Art. 5-1-e;Remainder inadmissible

The applicant was born in DATE and lives in GPE .

According to the ORG , in the evening of DATE the LOC police station received an emergency call from a local shop . Police officers were sent to the shop to investigate . On their arrival a shop security guard , PERSON , informed the police officers that a drunken man , who was subsequently identified as the applicant , was using offensive language and shouting in the shop , not responding to reprimands and disturbing the work of the shop . The Government provided written statements made by PERSON and PERSON , a shop assistant , on DATE . The statements , in so far as relevant , read as follows :

“ In DATE ( DATE ) I was on duty in the shop ... At TIME a man , who was drunk , entered the shop and went to the department of the shop selling beverages . Subsequently he had an argument with a shop assistant , PERSON I do not know the reason behind the argument . PERSON asked me to calm the man down . When [ the man ] entered the sales area , he , being drunk , shouted loudly , using offensive language .

Handwritten by me . ”

“ In DATE ( I do not remember the date ) , in the evening .... , an unknown man entered the shop and , despite the fact that he was already drunk , began demanding that I sell him alcoholic beverages , and , his request being refused , he began using offensive language , offending shop assistants [ and ] disturbing the functioning of the shop ; I applied to the guard in the shop [ Mr PERSON ] for assistance . [ Mr PERSON ] escorted the man from the shop ; however , TIME the man returned and began harassing the shop guard [ Mr PERSON ] , using offensive language , shouting that he would fire the shop staff ; subsequently [ Mr PERSON ] pressed an emergency button and police officers arrived ; [ they ] escorted the man from the shop and arrested him . ”

The applicant was taken to a sobering - up centre of ORG . An officer on duty at the sobering - up centre drew up medical report no . CARDINAL . The report , provided to the ORG by the ORG , consisted of a CARDINAL - page printed template , in which the dates , the officer 's and applicant 's names , the applicant 's personal data and circumstances surrounding his arrest were filled in by hand . The relevant part read as follows ( the pre - printed part in roman script and the part written by hand in italics ) :

“ The arrestee was discovered in an intoxicated state ... by a police patrol at TIME in the street ... near the house .

The drunken [ person ] exhibited the following [ behaviour ] at the place of his arrest strong smell of alcohol , shaky walk , scrambled speech , disorientation in time .

A medical assistant , PERSON , performed a medical examination , during which a moderate state of intoxication was identified . Symptoms ( which must be underlined ) : smell of alcohol on the breath , excited behaviour , aggressive language , blurred vision , blood pressure was not measured , pulse was not measured , shaky gait , weak legs , impaired movement coordination ....

Also established during the medical examination : Conscious when admitted [ to the sobering - up centre ] . Mydriatic pupils . [ the remaining handwritten text is illegible ] ”

The report was signed by the officer on duty , the CARDINAL police officers who had escorted the applicant to the sobering - up centre , PERSON . and PERSON . , and the medical assistant , PERSON In addition , the QUANTITY escorting police officers made a note in the report alleging that the applicant was aggressive and that he had tried to initiate a fight . The applicant refused to sign the report .

At the centre the applicant 's hands were tied to a bed with “ soft ties ” because he “ had behaved aggressively and gestured actively ” . He remained tied up for TIME .

On DATE , at TIME , the applicant was released from the centre and brought to ORG where a report on an administrative offence was drawn up . The report indicated that the applicant had committed an offence under LAW . It stated that the applicant had been arrested by the police on DATE because he had been drunk , used foul language in a public place , thereby disturbing public order .

The applicant was ordered to pay MONEY ( RUB , MONEY ) “ for medical assistance provided in the sobering - up centre ” .

On DATE the police officers , PERSON . and PERSON . , wrote similar reports to the head of the sobering - up centre , describing the circumstances of the applicant 's arrest and placement in the centre . According to the police officers , in response to their request to board a police car , the applicant , who had been in a moderate state of alcohol intoxication , had started waving his hands about , using offensive language and throwing his bag around . After he had been placed in the police car , he had attempted to break metal bars and had banged on the door . He had also behaved aggressively in the sobering - up centre , waving his hands about and attempting to start a fight . Soft ties had been applied to him for a short period of time . According to the report , on admission to the centre the applicant did not have any money .

On DATE a deputy head of the sobering - up centre drew up a report , stating that on DATE , in the street near a house , a police patrol car had found the applicant , who was in a moderate state of alcohol intoxication . The deputy head provided the following description of the subsequent events . The applicant had been brought to the sobering - up centre where a medical assistant , PERSON , confirmed that he was moderately drunk . After the applicant had been asked to go into a room he had resisted , trying to initiate a fight with an officer , had acted aggressively and had used offensive language . The applicant had been tied to a bed with soft tissues for no longer than an hour and had calmed down .

DATE the medical assistant , PERSON , wrote an explanatory statement addressed to the head of the sobering - up centre . The statement read as follows :

“ On DATE , at TIME , [ the applicant ] , who was in a state of alcohol intoxication , was brought to the duty unit of the sobering - up centre . [ The state of intoxication was determined ] on the following grounds : strong smell of alcohol on the breath , barely able to stand , unsteady walk . Coordination was impaired . Speech was blurred . The face and whites of the eyes were bloodshot , [ the applicant ] could not do coordination exercises and was unsteady in the PERSON position ( standing upright with eyes closed ) . [ The applicant ] was asked to undress for a further medical examination . [ He ] acted aggressively , waved his hands about , attempted to start a fight , and began swinging his bag around . [ He ] refused to undress voluntarily and was forced to undress ; [ he ] refused to go to a room to rest . Soft ties were applied to him from TIME to prevent damage to him and other individuals . During that [ TIME ] the ties loosened up . On a number of occasions while he was in the sobering - up room he knocked and asked to be released and said that he was being detained unlawfully . On his release he did not make any complaints , [ he ] refused to sign [ the report ] insisting that on his admission [ to the sobering - up centre ] he had had money with him . He was given back personal belongings in compliance with the list which had been drawn up on his admission . ”

The applicant asked ORG office to institute criminal proceedings against officials of the sobering - up centre , claiming that they had unlawfully seized QUANTITY from him .

On DATE a senior assistant to ORG dismissed the applicant 's complaint , finding that there was no case to answer . The senior assistant concluded that there was no evidence in support of the applicant 's allegation that he had had money on him before his admission to the sobering - up centre .

The applicant lodged a complaint with ORG seeking annulment of the decision of DATE . In addition , he brought a complaint with ORG against the sobering - up centre of ORG . While not disputing that on DATE he had been under the influence of alcohol , the applicant claimed that he had been arbitrarily detained in the sobering - up centre on the basis of an internal regulation adopted by an order of ORG . He further argued that he had been ill - treated at the centre as the police officers had forced him to stay in a very painful position known as “ the swallow ” [ ласточка ] . In addition , the applicant alleged that he had been forced to pay for medical assistance although such assistance was never provided .

On DATE ORG dismissed the applicant 's complaint against the sobering - up centre . It grounded its findings on medical report no . CARDINAL drawn up in the centre on DATE and statements by the medical assistant , PERSON , the police officer , PERSON ORG , who had escorted the applicant to the centre , and the head of the centre . ORG found as follows :

“ By virtue of paragraph CARDINAL of [ the Regulations on Medical Sobering - up Centres at Town ( District ) Police Stations ] , approved by Order no . CARDINAL of ORG on DATE , individuals in a state of alcohol intoxication ( moderate or severe ) who are in streets , public gardens , parks , stations , airports and other public places , are taken to medical sobering - up centres if their appearance offends human dignity and public morals .

Due to the fact that [ the applicant ] was in a moderate state of alcohol intoxication , and his appearance – his walk was unsteady , he had a hard time keeping himself upright , he talked incoherently , he reeked of alcohol - offended human dignity and public morals , officials of the sobering - up centre had the right to take him to the sobering - up centre and keep him there until he sobered up .

By virtue of paragraph CARDINAL of [ ORG Brought to Medical Sobering - up ORG ] a medical assistant ... should determine the period necessary for an individual to sober up ; however it should not exceed TIME .

As follows from the case file materials [ the applicant ] was detained in the medical sobering - up centre from TIME on DATE to TIME on DATE , which is no longer than TIME . ”

ORG also held that the payment for medical assistance had been lawful and that the applicant had paid the sum of RUB CARDINAL voluntarily . It did not address the alleged disappearance of cash .

The applicant appealed against the judgment of DATE . In his statement of appeal he complained that he had been unlawfully detained against his will , that ORG had grounded its judgment solely on statements by the officials of the sobering - up centre and that his unsteady walk and incoherent speech before his detention in the sobering - up centre had not posed a threat to anyone , including himself .

On DATE ORG upheld the judgment of DATE , endorsing the reasons given by ORG .

On DATE the ORG quashed the assistant prosecutor 's decision of DATE and sent the case for an additional inquiry , noting that the assistant prosecutor had failed to question the applicant in relation to his complaint about the money allegedly seized in the sobering - up centre .

DATE a deputy ORG closed the additional inquiry , noting that it was impossible to question the applicant . According to the deputy prosecutor , the applicant had not responded to summons sent by the prosecutor 's office on a number of occasions . Moreover , police officers who had been sent to his place of residence could not find him . The applicant was served with a copy of the decision . No appeal followed .

“ Minor disorderly acts , that is utterance of obscenities in public places , abusive solicitation and other similar acts that breach the public order and peace , - shall be punishable with a fine of CARDINAL minimum wages or with correctional works for DATE compounded with withholding of PERCENT days . ”

The relevant provisions of the Regulations on Medical Sobering - up ORG read as follows :

“ CARDINAL . Persons in a state of alcohol intoxication who are in streets , public gardens , parks , stations , airports and other public places , are taken to medical sobering - up centres if their appearance offends human dignity and public morals or if they have lost the ability to walk unaided or could cause damage to others or to themselves ...

Once the person placed in a medical sobering - up centre has sobered up completely , a doctor shall examine him for the second time and give an opinion on the possibility of his release . The period for holding a person in a sobering - up centre shall , in any event , be no shorter than TIME , but no longer than TIME ... ”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

The applicant served his prison sentence in the closed section of GPE prison in the period between DATE and DATE . From CARDINAL to CARDINAL DATE he was held in cell CARDINAL ( second floor ) measuring QUANTITY . The cell , apart from the furniture , contained CARDINAL sleeping places ( CARDINAL bunk beds ) . According to the applicant , CARDINAL prisoners were being held in the cell during his detention . The Government , however , submitted that the number varied DATE . He was subsequently moved to cell . CARDINAL on the third floor , where he stayed until the end of his sentence on DATE . The cell measured QUANTITY . The cell contained , apart from the furniture , CARDINAL sleeping places ( CARDINAL bunk beds and a single bed ) . According to the Government the number of prisoners varied CARDINAL .

During his detention the applicant received CARDINAL visits from a friend . DATE and DATE the applicant ’s visits took place through a glass partition , as he had been suspected of receiving drugs from his visitor . The same decision was made with regard to the period DATE and DATE . The applicant received CARDINAL letters and sent out CARDINAL . Envelopes were opened on CARDINAL occasions to check on enclosed items . The applicant did not appeal against this measure .

According to the prison records , the applicant was receiving methadone maintenance treatment during his imprisonment . In addition , he had CARDINAL consultations with a general practitioner and CARDINAL dental appointments .

As regards the general characteristics of the cells , material conditions inside the cells , sanitary conditions and health care , see the judgment in ORG and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § § DATE to CARDINAL , DATE . As to the out - of - cell time , the ORG found in the aforementioned judgment that the sentenced prisoners held in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities , most of which were to take place in the recreation room . There was , however , CARDINAL ORG - metre recreation room per floor , which was to be used by CARDINAL inmates at most ( ibdi . , § DATE ) . As regards the cell temperature , the data provided by the Government showed that the average temperature in the cells in TIME ( TIME ) in DATE and DATE had been approximately CARDINAL , exceeding CARDINAL on DATE .

For the relevant domestic law and practice as well as relevant international documents see ORG and Others , cited above , § § DATE .