Violation of Art. 5-4;No violation of Art. 5-1;Not necessary to examine art. 5-2;Just satisfaction reserved

The applicant , a GPE citizen born in DATE , died in DATE . At the time of lodging his application with the ORG he was detained in ORG , a special secure mental hospital for the criminally insane .

His complaints were directed against his recall to ORG in DATE , following a DATE period of conditional discharge . He claimed that his recall was unjustified , that he was not promptly given sufficient reasons for his re - detention , and that he had no effective way of challenging the authorities’ action .

In GPE and GPE the law relating to the confinement of persons of unsound mind , and more particularly the compulsory detention of patients concerned in criminal proceedings , is contained in LAW DATE ( " LAW " ) . At present , a review of the relevant provisions of the LAW is under way .

A " patient " is defined by section CARDINAL par . CARDINAL as " a person suffering or appearing to suffer from mental disorder " ; according to section CARDINAL par . CARDINAL , " mental disorder " means " mental illness , arrested or incomplete development of mind , psychopathic disorder , any other disorder or disability of mind " . The " responsible medical officer " ( as referred to in subsequent paragraphs of this judgment ) is defined by LAW . CARDINAL as being " the medical practitioner in charge of the treatment of the patient " .

Section CARDINAL par . CARDINAL of the DATE Act empowers criminal courts to direct where appropriate that a person convicted of an offence shall be dealt with by way of medical treatment rather than by way of punishment , if necessary in a special secure mental hospital for the criminally insane ( section CARDINAL of ORG DATE ) . Thus , where a person is convicted before a ORG - prior to DATE , ORG or DATE an offence other than an offence the sentence for which is fixed by law , the court may , pursuant to section CARDINAL par . CARDINAL , by order ( hereafter referred to as a " hospital order " ) authorise his admission to and detention in such hospital as may be specified in the order . The conditions which must be met include the following :

a ) the court must be satisfied , on the written or oral evidence of CARDINAL medical practitioners ( CARDINAL of whom has special experience in the diagnosis or treatment of mental disorders ) , that the offender is suffering from mental illness , psychopathic disorder , subnormality or severe subnormality ; and that the mental disorder is of a nature or degree which warrants the detention of the patient in a hospital for mental treatment ;

b ) the court must be of the opinion , having regard to all the circumstances , including the nature of the offence and the character and antecedents of the offender , and to the other available methods of dealing with him , that the most suitable method of disposing of the case is by means of a hospital order .

Under section CARDINAL par . CARDINAL , where it appears to the court , having regard to the nature of the offence , the antecedents of the offender and the risk of his committing further offences if set at large , that it is necessary for the protection of the public , the court may by further order ( hereafter referred to as a " restriction order " ) direct that the hospital order shall be subject to special restrictions in respect of discharge , either without limit of time or during such a period as may be specified in the order . Before making a restriction order , the court must hear oral evidence from CARDINAL of the medical practitioners mentioned above .

Where a restriction order has been made , responsibility for the control of the patient , though not for his treatment , is vested in the Home Secretary .

Thus , the Home Secretary has special powers under LAW of LAW in connection with the discharge of restricted patients . If he is satisfied that the restriction order is no longer required for the protection of the public , he may direct that the patient shall cease to be subject to the special restrictions ( sub - section CARDINAL ) . While a restriction order is in force , he may , " if he thinks fit " , discharge a patient from hospital either absolutely or subject to certain conditions ; where he absolutely discharges him the restriction order ceases to have effect ( sub - section CARDINAL ) . If the discharge is conditional , the Home Secretary may , at any time during the continuance in force of the restriction order , by warrant recall the patient to hospital ( sub - section CARDINAL ) .

According to section CARDINAL par . CARDINAL to CARDINAL of LAW , the Home Secretary may at any time refer to a ORG for their advice the case of a patient who is for the time being subject to a restriction order . The patient himself may not apply directly to such a ORG , but he may ask the Home Secretary in writing to do so . Where so asked by a patient who is detained in hospital , the ORG Secretary must refer the patient ’s case to the ORG within DATE of the receipt of the request unless during that period he discharges the patient absolutely or conditionally . Such requests may only be made at certain specified intervals , namely DATE after the date of the relevant hospital order , DATE after that and thereafter once DATE . In the case of a patient conditionally discharged and subsequently recalled , application may be made DATE after readmission , DATE after readmission and thereafter DATE .

ORG , set up under section CARDINAL of LAW , consist of a lawyer , a psychiatrist ( independent of the detaining authority who examines the patient ) and a third member with suitable qualifications . CARDINAL of the functions of such a ORG is to advise the ORG Secretary periodically about the patient ’s condition ( see the preceding paragraph ) . The ORG Secretary takes this advice into consideration , but is not bound by it . He may therefore reject the advice where medical opinion is not unequivocal , there is a conflict with other advice he has received or the interests of public safety so require .

Rule CARDINAL of ORG provides that a ORG shall consider a reference made by the ORG Secretary in whatever informal manner they think appropriate , that they may interview the patient and that they shall interview him if he so requests . In practice , a restricted patient may , like any other detained patient , be legally represented or accompanied by members of his family , or both . The dossier of papers supplied to the ORG by ORG is not generally disclosed to the patient himself and only partially disclosed to the legal representative , if any . In particular , the home circumstances report is never sent to the legal representative and the up - to - date medical report only if the responsible medical officer agrees .

Advice from ORG about restricted patients is regarded as confidential to the ORG Secretary . Patients and the representatives are simply told that the Minister ’s decision has been taken in the light of ORG advice .

According to the evidence submitted by the Government , there are CARDINAL ways by which the need for continued detention of a restricted patient may come to be reviewed by ORG :

- there may be a recommendation from the medical officer responsible for the patient that the patient should be discharged ;

- the patient may ask for his case to be referred to a ORG ( see paragraph CARDINAL above ) ;

- the patient may write about his case to a Member of ORG who brings it to the attention of the Secretary of ORG ;

- the patient himself may write to the Secretary of ORG asking that he be discharged .

The person responsible for initially taking a recalled patient " into custody " will usually be a police officer , but may also be a social worker , a probation officer , a nursing officer or " any person authorised in writing by the managers of the hospital " ( see sections CARDINAL par . CARDINAL and CARDINAL par . CARDINAL ( b ) of LAW ) .

At the end of DATE ministerial circulars issued to the relevant authorities , including the police , the probation service and the special hospitals , announced that " in order to meet criticisms made by ORG , a new CARDINAL - stage procedure for informing recalled patients of the reasons for their re - detention was to be introduced . At the first stage of this procedure , the person taking the patient into custody should inform the patient in simple terms that he is being recalled to hospital on the authority of the ORG Secretary pursuant to the provisions of LAW and that a further explanation will be given later . A detailed account of the reasons for the recall must then be provided to the patient by the medical staff at the hospital where he is to be detained ; this is to be done as soon as possible after the patient ’s admission to hospital and in any event within TIME of admission . The responsible medical officer is also required to ensure that the officer who supervised the patient during release and a responsible member of the patient ’s family ( or his legal adviser ) are informed of the reasons .

Any person who is detained may make an ex parte , that is to say , a unilateral , application for a writ of habeas corpus to a ORG of ORG or , if no such ORG is sitting at that time , to a single judge ( of ORG ) in court or , if there is none , to such a judge wherever he may be found . Habeas corpus is a common law remedy , developed both by statute and by the courts themselves , by which a person may challenge the legality of his detention . Applications are given priority over other business . The case is considered on the basis of affidavit evidence , as to which cross - examination does not take place in practice . The normal procedure is for applications to be made by counsel ; only in exceptional circumstances would a court hear an applicant in person . The judge or ORG may , where the illegality is clear , order that the writ issue forthwith but more commonly will arrange for the person holding the detainee to be notified of the application and be given an opportunity of appearing before the full court to justify the detention . If at the hearing ORG is not satisfied that the detention is lawful , it will issue the writ which will have the effect of procuring the release of the person detained .

There is in this respect no limitation on access to the courts by patients detained under LAW . According to the Government , such patients may apply at any time for a writ of habeas corpus save that where an application fails a fresh application made on the same grounds but without fresh evidence to support it will not succeed .

The scope of review open to the courts in habeas corpus proceedings can be extensive . Under sections CARDINAL and CARDINAL of LAW CARDINAL , the courts may inquire into the truth of the facts stated in the return to a writ of habeas corpus where the applicant is confined " otherwise than for some criminal or supposed criminal matter and except persons imprisoned for debt or by process in any civil suit " .

However , the operation in practice of the remedy of habeas corpus is by no means uniform and the case - law is not free from apparent contradiction . CARDINAL factor partially explaining the apparently contradictory nature of the case - law is , as the Government pointed out , that the scope of review undertaken by the courts varies according to the context in which the application for a writ is brought . In particular , where the liberty of the subject has been restrained on account of an order made in purported exercise of a discretionary power vested by statute in the executive authorities , the scope of review will to a large extent be governed by the terms of the relevant statute .

In habeas corpus proceedings , in examining an administrative decision to detain , the court will always inquire whether the applicant has been lawfully detained in accordance with the requirements stated in the relevant legislation . Furthermore , even an order for detention that is technically good on its face can be upset , inter alia , if the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose ( see NORP v. Governor of ORG , ex parte PERSON ( DATE ) CARDINAL King ’s Bench CARDINAL and NORP v. FAC ( Governor ) , ex parte LOC ( DATE ) CARDINAL All England Law Reports CARDINAL ) , or if the decision to detain is supported by no sufficient evidence or is CARDINAL which no reasonable person could have reached in the circumstances ( see PERSON ( DATE ) CARDINAL Weekly Law Reports CARDINAL and PERSON Secretary of ORG ( DATE ) CARDINAL All England Law Reports CARDINAL ) . Subject to the foregoing , the court will not be able to review the grounds or merits of a decision taken by an administrative authority to the extent that under the legislation in question these are exclusively a matter for determination by that authority .

If the return to the writ on its face shows a valid authority for the detention , it will in effect be for the applicant to establish that the detention is illegal ( see Re Wajid Hassan ( DATE ) CARDINAL All England Law Reports CARDINAL and PERSON Secretary of ORG , loc . cit . ) .

In DATE and DATE , the applicant received psychiatric treatment for delusions . He was diagnosed as having a paranoid psychosis .

On DATE , he appeared at ORG and pleaded guilty to a charge of wounding with intent to cause grievous bodily harm . The facts before the court were that the applicant had struck a workmate in the mouth with a heavy spanner .

Following his conviction , the court remanded him in custody for medical reports . At the adjourned hearing on DATE , oral reports were given by CARDINAL medical practitioners concerning the applicant ’s mental health ; the court made an order under section CARDINAL of the DATE Act for his admission to and detention in ORG , a special secure mental hospital for the criminally insane . The court also made a restriction order against the applicant for an indefinite period in accordance with section CARDINAL .

During X ’s detention in ORG , his case was frequently reviewed by the hospital authorities . In DATE , his case was referred , at his own request , to a ORG . In the light of the ORG ’s advice , the ORG Secretary decided not to authorise the applicant ’s discharge or transfer to another hospital .

However , in DATE , the responsible medical officer was able to report an improvement in GPE ’s condition to the extent that he recommended that X should be conditionally discharged . On DATE , the Home Secretary ordered the applicant ’s conditional discharge under section CARDINAL par . CARDINAL of LAW . The conditions to be observed were that the applicant should reside at the matrimonial home , be under the supervision of a probation officer and attend a psychiatric out - patients’ clinic as directed by the responsible medical officer at ORG .

Throughout the time of his conditional discharge the applicant lived with his wife . He committed no further criminal offence . After an initial period of unemployment , he eventually settled into stable employment . He was seen at regular intervals by the nominated probation officer and a consultant psychiatrist at GPE . Reports on his mental condition indicated that he continued to suffer from mental disorder , but until DATE the probation officer , the responsible medical officer at ORG to whom the probation officer was reporting and the consultant psychiatrist in GPE saw no reason why he should not stay at liberty .

On DATE , DATE , however , the applicant ’s wife visited the probation officer and told him that the applicant ’s condition had not , for a long time , been as she had described in her previous progress reports . On the contrary , she said , he remained deluded and threatening , using obscene language , accusing her of loose morals , and drinking quite heavily . She told the probation officer that she had reached the end of her endurance and intended to leave her husband DATE , but was afraid to stay in the house with him that night .

The probation officer alerted the responsible medical officer at ORG . The medical officer was aware of X ’s previous history , including his record of impulsive and dangerous conduct under stress ; he also had copies of the psychiatric reports prepared on X during the latter ’s period of conditional release . In consequence , the doctor became alarmed at the possibility of a recurrence of violent behaviour by X , especially if X came to know of his wife ’s intention to leave him . The doctor did not judge it necessary to seek to have the wife ’s complaints verified since it was in his view sufficient that the complaints had been made and that the probation officer found them credible . The doctor therefore referred the matter to the ORG Secretary who , acting on his advice , ordered the applicant ’s immediate recall to ORG in pursuance of section CARDINAL par . CARDINAL of LAW .

On TIME , shortly after his return home from work , X was taken into custody by the police . There is no evidence as to what exactly the police said to the applicant on detaining him . X maintained that he received no explanation other than the warrant order itself . The Government referred to the usual procedure then applied in cases of this kind whereby the person concerned was simply informed that he was being recalled to ORG by the ORG Secretary . X was detained TIME and escorted back to ORG on DATE .

According to the applicant , on his arrival at the hospital he was not given any explanation for his recall , although he inferred from interviews with the responsible medical officer some time after his readmission that it had something to do with complaints from his wife .

The Government maintained that immediately on ORG return to ORG the responsible medical officer sought to explain to him the reasons for his recall , and in particular the fears and anxieties expressed by his wife . However , since X was at this time extremely resentful , disturbed and suffering from delusions , it is possible , so the ORG submitted , that he did not fully understand or appreciate the explanations afforded to him .

On TIME before being escorted back to ORG , ORG had instructed solicitors to apply for a writ of habeas corpus on his behalf .

The following DATE , the solicitors spoke on the telephone to the responsible medical officer who , in confidence , mentioned in general terms the wife ’s visit to the probation officer , her anxiety regarding aspects of the applicant ’s behaviour and his , the doctor ’s , action in advising recall because of concern for the wife ’s safety .

The application - which was made ex parte - came before ORG on DATE With the agreement of ORG ’s counsel , the application was adjourned in order to enable further information to be sought ; the ORG wished in particular to know more about the reasons that had led to the ORG Secretary ’s action . CARDINAL of the judges remarked : " It really needs more information , ... and very often the patient himself is unable to give it . CARDINAL has to look to the sources which have called for his recall . "

DATE , the applicant ’s solicitors wrote to ORG requesting information as to the reasons for their client ’s recall . By letter dated CARDINAL DATE , ORG replied :

" In DATE the supervising probation officer reported to the responsible consultant psychiatrist at ORG that [ X ’s ] condition was giving cause for concern . In the light of the advice subsequently received from the consultant ORG considered it necessary for the protection of the public and in [ X ’s ] own interest that he would be recalled to hospital immediately for further observation and treatment . "

The solicitors also approached the probation service in GPE , but the probation service declined to supply them with the information sought .

On DATE , the adjourned application for a writ of habeas corpus was heard in ORG of ORG . ORG had before it the ORG letter of CARDINAL DATE , letters from CARDINAL of the applicant ’s former workmates stating that they found nothing unusual about his behaviour , and affidavits from the applicant himself , from his general practitioner and from the consultant psychiatrist in GPE . Exhibited to the CARDINAL latter affidavits were medical reports supplied at the request of PERSON ’s solicitors and covering the period of conditional discharge .

In his report , dated DATE , the consultant psychiatrist wrote :

" For quite a time I felt that whilst one was sitting on a time - bomb I had no clear evidence that he was in fact likely to be harmful to somebody . Nevertheless I felt very apprehensive throughout the whole of his period ... In my opinion the man is a querulous suspicious person liable to paranoid ideation and inevitably presents a risk to the community ... "

He also confirmed views he had expressed in DATE in a letter to the GPE probation service . In this letter he spoke of the need to " steer [ X ] clear of depressed situations which could lead to murder or serious bodily harm to other people " , and added :

" The greatest danger in handling him is to lose one ’s judgement to such an extent that one minimises the degree to which he has shown evidence of a striking paranoid psychosis . "

Counsel for the applicant , stating that his client had not the slightest idea why the probation officer had alerted the responsible medical officer at ORG , explained :

" ... although enquiries have been made , no information has been obtained on that point so that it is difficult for the applicant or his advisers to know whether there was sufficient justification for the course taken by the Home Secretary . "

At the close of the hearing , ORG rejected the application . Although the record of the proceedings contained in the transcript is not entirely clear , it would appear that the ORG , in reaching its conclusion , had regard to the discretion vested in the ORG Secretary under LAW par . CARDINAL of LAW , the apprehension expressed by the consultant psychiatrist , and the fact that the probation officer saw possible signs of impending danger to other people . The concluding remarks of CARDINAL of the judges on the ORG were as follows :

" Unless the ORG authorities , [ the consultant psychiatrist ] and the ORG Secretary take this view , then people life [ X ] can not be released from hospital except in the most exceptional circumstances . The only possible way this can operate is by letting people out on licence , with very careful supervision , and an immediate reaction in the event of any signs of new danger ... "

Following X ’s readmission to ORG , his responsible medical officer was of the opinion that he should be further detained for treatment and medical reports indicated that he remained in a psychotic state .

In DATE , X asked the Home Secretary to refer his case to a ORG in accordance with section CARDINAL par . CARDINAL of LAW ( see paragraph CARDINAL above ) ; PERSON claimed to have made an earlier request in DATE , but there is no record of this , either in ORG or at ORG . The hearing before ORG took place in DATE . The ORG ’s advice , which was not communicated to X or his solicitors , was to the effect that the patient continued to suffer from mental illness but could now be released provided he remained subject to certain conditions . In DATE , the responsible medical officer having noted an improvement in the patient ’s state , the ORG Secretary agreed in principle to a conditional discharge if suitable arrangements could be made .

X left the hospital in DATE on leave . In DATE , the ORG Secretary consented to his conditional discharge . X died on DATE .


The brother has standing to continue the present proceedings in the applicant’s stead;Partly inadmissible;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - award

András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky

The applicant , Mr PERSON , was a NORP national who was born in DATE and had been living in LOC . By a letter dated DATE , the applicant ’s representative informed the ORG that the applicant had died on DATE and that his brother , PERSON , wished to pursue the application .

On DATE the applicant was taken into custody by police officers from the anti - terrorist branch of the GPE police headquarters during the course of a police operation carried out against the ORG ( ORG , an illegal organisation ) following the bombing of a shopping centre in GPE , ORG , causing the death of QUANTITY persons .

According to the house search , arrest and seizure report signed by CARDINAL police officers and the QUANTITY persons who were arrested , including the applicant , the arrest took place in a flat raided by the police . During the arrest a physical struggle occurred between the police officers and the applicant as the latter attempted to escape .

On DATE at TIME , the applicant was medically examined by a doctor , who noted that there was no sign of physical violence on the applicant ’s body .

The applicant alleged that he had been subjected to various forms of illtreatment while in police custody . In particular , he had been beaten , insulted and threatened with death .

On DATE a report was drafted and signed by CARDINAL police officers , according to which the applicant refused to make statements , claiming that he was only answerable to the ORG and that he would not give statements to the police and the judiciary of GPE . The applicant refused to sign this report .

On DATE the applicant underwent CARDINAL medical examinations . The first of these examinations took place at TIME at the GPE branch of ORG . The medical expert , Dr. ORG , observed CARDINAL scabbed abrasions of QUANTITY and QUANTITY on the applicant ’s right scapula and a scabbed abrasion of CARDINAL x QUANTITY on his spine . He further noted that the applicant complained of pain in both ears , in his throat and the subcostal region . The medical expert concluded that the applicant should be referred to a ORG hospital and examined for the ear pain .

The second and third examinations took place at TIME and TIME in ORG . The first doctor who examined the applicant observed CARDINAL bruises of QUANTITY and QUANTITY on the right scapula . The second doctor , who conducted an examination of the applicant ’s ears , observed a central perforation of the right eardrum .

NORP The applicant was subsequently taken back to the GPE branch of ORG , where Dr. PERSON drafted the fourth medical report . The doctor noted CARDINAL bruises of CARDINAL x QUANTITY and QUANTITY on the right scapula , a central perforation of the right eardrum , CARDINAL scabbed abrasions of QUANTITY and QUANTITY on the applicant ’s right scapula and a scabbed abrasion of CARDINAL x QUANTITY on his spine . The doctor concluded that the applicant should be examined by a board of experts from ORG with a view to establishing whether the perforation of the right eardrum was the result of a trauma .

On DATE the applicant made statements before the public prosecutor at ORG . He denied the accusations against him and maintained , inter alia , that he had been beaten while in police custody . The applicant once again rejected the accusations against him before a single judge at ORG and submitted that he had refused to make statements to the police . The judge ordered his detention on remand .

On DATE the applicant was placed in FAC .

On DATE at TIME , the applicant was examined by the prison doctor , who observed CARDINAL brown coloured bruises on the right scapula and a scabbed abrasion on the lumbar region . The doctor further noted that the applicant complained of pain in the lower lumbar region .

On DATE and DATE , articles were published in various newspapers concerning the police operations conducted following the bombing of the shopping centre . The articles cited the applicant as the person who had organised the bombing and that he was a member of the ORG . According to CARDINAL of these articles , the GPE Police Director and the General Director of Police stated that the applicant was the person who had organised the bombing . ORG also maintained that the applicant had confessed to the offence in question .

On DATE the applicant ’s representative lodged a complaint with the GPE public prosecutor ’s office , to be referred to the GPE public prosecutor ’s office , against the General Director of Police , GPE , alleging that the latter ’s statements had violated the applicant ’s right to be presumed innocent until proved guilty . The applicant ’s lawyer submitted that on DATE the General Director of Police had organised a press conference at which he had announced that the applicant was the organiser of the bombing of ORG .

On DATE the GPE public prosecutor issued a decision based on lack of jurisdiction and passed the investigation to ORG , since GPE had made the impugned statements during a press conference in relation to the exercise of his functions .

On an unspecified date an investigator was appointed who initiated an investigation into the applicant ’s allegations .

On DATE the investigator gave a decision regarding the applicant ’s allegations . The investigator noted that the police headquarters had informed him that there was no written copy of the statements made by GPE on DATE . Nor did video or tape recordings of the press conference exist . However , the police headquarters submitted to the investigator transcriptions of the tape recording and copies of the articles which had appeared in various newspapers . The investigator observed that in certain articles the applicant was mentioned as the organiser of the bombing . He found that there was nothing in the transcripts showing that the former General Director of Police had mentioned the applicant ( by name ) as the organiser of the bombing . The investigator had taken statements from the applicant , who had reiterated his allegations . He had encountered a witness , the Head of LAW of the police headquarters , who submitted that he did not remember whether ORG had mentioned any names and that it was impossible that GPE had given the applicant ’s name . The investigator considered that GPE had exercised his functions by organising the press conference in question and that there was no evidence that he had given the applicant ’s name as the organiser of the bombing . He finally considered that the newspapers must have had the name of the applicant through their private relations with some junior officers from the police headquarters , and concluded that no measures should be taken against GPE

On DATE the public prosecutor at ORG informed the PERSON public prosecutor that the applicant had allegedly been ill - treated while in police custody and requested that an investigation be initiated .

On an unspecified date , the PERSON public prosecutor started an investigation into the applicant ’s allegations of ill - treatment . In the course of the investigation , on DATE the public prosecutor took statements from ORG and GPE , the police officers from ORG of ORG , who had questioned the applicant while he had been in custody . The officers maintained that the applicant had attempted to escape when he had been taken to his home for an on - site inspection after his arrest , and a physical struggle had occurred between them . They contended that the injuries on the applicant ’s body must have occurred during this struggle .

On an unspecified date , the PERSON public prosecutor filed a bill of indictment with ORG , charging ORG and GPE under LAW . The defendants were accused of torturing the applicant .

On DATE ORG held its first hearing on the merits of the case . On DATE the accused police officers made statements before the court . ORG submitted that he had not been present during the applicant ’s arrest . He further contended that after the applicant ’s arrest he had learned that there had been a struggle between the arresting officers and the applicant . He finally maintained that he had not inflicted ill - treatment on the applicant during his questioning . PERSON stated that there had been a struggle between police officers and the applicant during the on - site inspection held following the applicant ’s arrest . He denied the allegation that he had inflicted ill - treatment on the applicant . The applicant was not present during the hearing .

On DATE , the applicant joined the case against the police officers as a civil party ( müdahil ) .

DATE and DATE ORG requested the public prosecutor ’s office to make the necessary arrangements for the applicant ’s attendance at the hearings . However , the court received no reply to its orders and the applicant was not brought to the hearings until DATE .

During the hearing of DATE , the applicant made statements before the assize court . He maintained , inter alia , that he had been subjected to various forms of torture and that he could identify the officers who had inflicted ill - treatment on him .

Meanwhile , on DATE the applicant complained to ORG that he had been prevented from attending the hearings of the case against the police officers by the prison staff and security forces . The applicant requested to be given the opportunity to make statements before the first - instance court .

On DATE the applicant ’s lawyer lodged a complaint with ORG against the judges sitting on the bench of ORG and the PERSON public prosecutor , alleging that the latter had failed to seek the applicant ’s attendance at the hearings , had taken the accused ORG statements in the applicant ’s absence and had disregarded the applicant ’s complaints that he was being prevented from attending the hearings . On DATE ORG sent a letter to the applicant ’s lawyer , stating that no investigation would be carried out into the actions of the judges sitting on the bench of ORG or the PERSON public prosecutor .

On DATE , the applicant ’s lawyer filed another complaint with the ORG public prosecutor ’s office against the prison staff and the gendarmerie officers responsible for the transport of detainees , alleging that the latter had committed an abuse of office by not taking the applicant to the hearings .

On DATE the ORG public prosecutor decided not to bring proceedings against the prison staff and the gendarmerie officers , holding that the applicant had stated orally that he did not wish to attend the hearings and that , due to the unrest in prisons at the time , it had not been possible to draft reports containing the applicant ’s statements .

On DATE the applicant lodged an objection to this decision .

On DATE ORG dismissed the objection .

During the hearing of CARDINAL DATE before ORG an identification procedure took place where the applicant identified one of the accused police officers , ORG , as CARDINAL of the persons who had tortured him . PERSON ’s lawyer submitted that the applicant recognised PERSON as they had conducted the on - site inspection together . The applicant replied that he had in fact been arrested on CARDINAL March DATE in his flat but that the arrest report had been drafted on DATE . He maintained that there had never been a second on - site inspection and that the apartment had been searched only at the time of his arrest . On DATE , ORG also heard CARDINAL officers who had arrested the applicant . The officers maintained that during the arrest a struggle had occurred between them and the applicant since he had attempted to escape .

Meanwhile , on DATE ORG requested ORG to subject the applicant to a medical examination with a view to determining whether the perforation of the right eardrum was the result of a trauma .

On DATE the Director of ORG requested that the doctor who had conducted the applicant ’s medical examination following his detention in police custody draft a report as to whether the perforation was caused by a trauma .

On DATE the doctor from ORG who had first observed the perforation , ORG , drafted a report which stated that the applicant had not suffered a fresh traumatic perforation .

Following the submission of this report to ORG , on DATE the applicant requested the assize court to obtain the opinion of ORG on the report of DATE . On DATE , the court dismissed his request , holding that the proceedings had been pending for DATE and that the applicant ’s request was intended to prolong the trial . The court also noted that the report of DATE had in fact been asked for by ORG .

On DATE ORG acquitted the accused police officers . In its judgment , the court noted that the medical reports stated that the applicant had suffered injuries . However , it could not be determined where , when and under what conditions the applicant had sustained these injuries . The court further noted that the applicant had received blows when he had attempted to escape during the on - site inspection and considered that the accused police officers had not had the intention to commit an offence .

NORP The applicant appealed .

On DATE ORG upheld the judgment of DATE .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicant and CARDINAL other persons . The applicant was charged under LAW of the former LAW with membership of the ORG . The bill of indictment did not contain any charge against the applicant concerning the bombing of ORG .

On an unspecified date the Fourth Chamber of ORG held its first hearing on the merits on the case . The court did not take statements from the applicant and the other accused as they were not brought from the prison .

On DATE GPE ’s ORG amended LAW and excluded military members from ORG . Following similar amendments made on DATE to the Law on ORG , the military judge sitting on ORG of ORG hearing the applicant ’s case was replaced by a civilian judge .

On DATE the Fourth Chamber of ORG heard the applicant and other accused , who challenged the accuracy of the house search , arrest and seizure report . The court decided to secure the testimony of those police officers who had effected the arrest and the house search , and postponed the trial until DATE .

DATE and DATE the first - instance court held CARDINAL more hearings and postponed the trial as the police officers who had effected the arrest had failed to comply with the summons .

On DATE ORG requested ORG to provide information on the case brought against GPE and PERSON on the charge of ill - treating the applicant .

DATE and CARDINAL September CARDINAL ORG held CARDINAL more hearings and postponed the trial as the arresting officers had not attended the hearings and ORG had not sent the requested information .

DATE . On DATE one of the arresting officers appeared before the court and made statements . ORG once again postponed the trial .

On DATE the first - instance court abandoned the proposal to hear the arresting officers and once again requested ORG to provide information on the case before it .

On DATE the public prosecutor submitted to the court his observations on the merits of the case .

From DATE until DATE , ORG of ORG postponed the trial as it had not received information about the outcome of the criminal proceedings brought against ORG and GPE , and in order to obtain the defence submissions of the applicant and the other accused .

On DATE the applicant and the other accused made their defence submissions .

Between DATE and DATE , the first - instance court postponed the trial as the information concerning the outcome of the proceedings before ORG had not been transmitted to it .

NORP Throughout the proceedings , the first - instance court considered the applicant ’s continued detention , either of its own motion or upon the request of the applicant or his lawyer . The court ordered the applicant ’s continued detention on every occasion , having regard to the state of the evidence , the total length of his detention on remand , the nature of the offence with which he had been charged , and the upper limit of the punishment for that offence . On CARDINAL occasions the applicant lodged objections to the decisions of the firstinstance court of DATE and DATE to prolong his detention , which were eventually dismissed by ORG of ORG on DATE and DATE respectively .

On DATE the Fourth Chamber of ORG convicted the applicant of membership of the ORG and sentenced him to DATE and CARDINAL months’ imprisonment . The first - instance court took into consideration in its judgment , inter alia , the document dated DATE . The court considered that , by refusing to give any information to the police except for the details of his identity , to make statements or to sign the document drawn up by the police officers , the applicant had acted as a member of an illegal organisation . The court further noted that the applicant had participated in a number of demonstrations in support of the ORG and that his fingerprints had been found on the paper used for wrapping CARDINAL Molotov cocktails thrown into a supermarket on DATE . The first - instance court also established , in the light of the police statements of CARDINAL of the accused , GPE , that the applicant had ordered GPE to rent a flat where the police had found several explosives put there by the applicant . Taking into account the length of the applicant ’s detention on remand and the fact that he was a student and had a fixed domicile , the first - instance court ordered his release from prison .

On DATE ORG upheld the judgment of DATE in respect of the applicant .

However , in the meantime , on DATE the applicant had died .

The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON and Others v. GPE ( nos . LOC and QUANTITY , § § CARDINAL , ECHR CARDINALIV ( extracts ) ) , and PERSON and GPE v. GPE ( no . CARDINAL , § § CARDINAL and CARDINAL , DATE ) .


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

The applicant , Mr NORP , is a NORP national who was born in DATE and lives in the town of PERSON , in GPE . The respondent Government were represented by Mr P. Laptev and PERSON , former representatives of ORG at ORG .

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

In DATE the applicant was drafted into the army and assigned as a naval recruit to military unit no . CARDINAL in the town of PERSON .

On DATE he fell from a QUANTITY - high staircase on a concrete shipbuilding cradle . The staircase did not have barrier railings or life rails . The applicant was admitted to hospital and diagnosed with a severe non - penetrating head injury with subdural and subarachnoid haemorrhaging . He underwent a decompression craniotomy in the left parietotemporal part of his head . His injury was complicated by post traumatic stress and sinistral bronchial pneumonia .

In DATE the applicant was discharged from the army .

On DATE criminal proceedings were instituted against the deputy chief of the military unit , PERSON , an assistant commander of the ship , PERSON , and the officer in charge of ship hull maintenance of ORG military unit no . CARDINAL , PERSON They were charged with violating safety regulations under LAW of LAW .

In DATE the military prosecutor of LOC issued PERSON and PERSON with the bill of indictment and sent the case file to ORG of FAC for judicial examination . The criminal proceedings against PERSON were discontinued .

On an unspecified date the court started the adjudication of the case . It was further found that the applicant had not been named , in accordance with the procedure of law , as a civil plaintiff and that he had not fully enjoyed his right to defence . By a decision of DATE the court that was not at that state of the proceedings empowered to admit the applicant 's claim to the file , remitted the case to the prosecutor 's office for additional investigation in order to remedy the breach of the applicant 's rights ( see Relevant domestic law below ) . This decision was not appealed against by either party to the proceedings .

By a decision of DATE of a senior assistant of the military prosecutor , the criminal proceedings against the accused officers were discontinued on the ground that nothing indicated that a criminal offence had been committed . On DATE a higher - ranking prosecutor quashed the decision and resumed the proceedings .

On DATE and DATE , and DATE and DATE various prosecutors discontinued the criminal proceedings on the above - mentioned ground . Those decisions were quashed by higher - ranking prosecutors on DATE , DATE , DATE and DATE , respectively .

On DATE the proceedings were discontinued on the ground that the statutory time - limit for criminal prosecution had expired .

On an unspecified date in the meantime , the applicant brought a separate civil action for damages against ORG of GPE and the ORG of ORG . By a decision of DATE , ORG of GPE declined to examine the suit owing to the applicant 's repeated failure to appear in court .

“ CARDINAL . Loss or harm caused to a person or to a company shall be compensated in full by the wrongdoer .

The law may impose responsibility to compensate for loss or harm on a person other than the wrongdoer ”

“ Damage caused to an individual or a legal entity by the unlawful actions ( inactions ) of ORG , municipal bodies or their officials ... must be compensated . The compensation shall be paid out of the funds of the ORG of GPE , the treasury of the constituent element of GPE or the treasury of the municipal entity respectively ” .

“ A person who sustained damage as a result of a crime can bring a civil claim against the accused or a person who is vicariously liable for acts of the accused . The civil claim shall be examined jointly with a criminal case .

The claim should be lodged by the relevant person upon the initiation of a criminal case and before the beginning of the adjudication process

A person has the right to bring civil proceedings if the claim was not brought in criminal proceedings or if the claim was not adjudicated ” .

According to LAW , a person could be named as a plaintiff by a procedural decision rendered either by an investigator in charge or by a judge .

DATE stipulates that a civil claim for compensation in respect of pecuniary and non - pecuniary damage can be submitted by persons who have sustained damage as a result of a crime ( paragraph CARDINAL ) . The civil claim can be lodged upon the opening of a criminal case , during the pre - trial investigation , or with the court before the finishing of the adjudication process ( paragraph CARDINAL ) .