Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant , Mr PERSON , known as ORG ( “ the applicant ” ) , is a NORP national who was born in DATE . He is presently serving a life sentence in ORG prison .

In DATE and DATE the applicant and a group of CARDINAL other persons were accused of being members of a criminal gang and of having committed numerous offences , including QUANTITY murders and CARDINAL attempted murders . The applicant was arrested and placed in detention on DATE .

On DATE CARDINAL members of the gang were finally convicted by ORG and sentenced to terms of imprisonment varying DATE and life sentences . The applicant and CARDINAL other co - accused ( NORP , PERSON and G.D. ) were tried separately .

The applicant was charged with founding and heading the criminal gang . In his capacity as founder and head of the gang he was charged with the attempted murder of CARDINAL persons ; the murder of QUANTITY persons ; the unlawful deprivation of liberty of QUANTITY persons and possession of firearms . He was also charged in his personal capacity with use of false documents ; possession and use of firearms ; blackmail ; theft and possession of drugs .

During the proceedings before the first - instance court the prosecution dropped the charges concerning CARDINAL attempted murders .

In DATE the Secretary of ORG , Mr PERSON , gave an interview to a NORP language newspaper in which he declared , inter alia :

“ Людьми главы самой крупной преступной группировки - Мику - предпринимались самые энергичные попытки его освобождения из под стражи , и только личное вмешательство GPE пресекло эти попытки. ”

“ The men of the leader of the most important criminal gang , ORG , made very energetic attempts to get him released from detention , and only the personal involvement of the President cut short those attempts . ”

On DATE ORG acquitted the applicant of all the charges for lack of evidence . ORG acquitted the applicant of all the charges and ordered his release from custody . It also acquitted co - accused G.D. , but convicted co - accused NORP and PERSON In its judgment the court stated , inter alia :

[ The applicant ] is accused of , DATE , together with NORP and PERSON , founding a criminal gang and heading it ....

In his capacity as founder and head of the criminal gang , he is accused of the murder of CARDINAL persons , attempted murder of QUANTITY persons , deprivation of liberty of QUANTITY persons and purchase and possession of firearms . He is also accused of purchase and possession of firearms and drugs in his personal capacity at the time of his arrest on DATE , use of false documents , blackmail and theft . ”

Both during the investigation and the court proceedings [ the applicant ] pleaded his innocence .

Concerning the charge of founding and heading the criminal gang , the court stated :

“ [ The applicant ] 's indictment is of a declarative nature and is based on suppositions but not on any convincing evidence . The prosecutor did not adduce any new evidence during the [ court ] proceedings .

The co - accused NORP and PERSON and the [ CARDINAL persons convicted by ORG on DATE ] did not make any statements during the investigation which would incriminate [ the applicant ] in founding and heading the criminal gang ... , purchasing firearms , ammunition and cars , renting apartments and financing the gang .

The charges against [ the applicant ] are based on the statements of S. [ co - accused ] to the effect that [ the applicant ] , C. , ORG , and G.D. [ alleged members of the criminal gang ] are [ the applicant ] 's men and that [ the applicant ] would have had an interest in the murder of PERSON . [ victim of an attempted murder in respect of which the charges against the applicant had been dropped ] ; that NORP [ co - accused ] had told him that [ the applicant ] had paid money [ for a murder ] ; that GPE [ convicted by ORG on DATE ] had told him that [ the applicant ] could not return to the city because of PERSON . and that G.D. [ co - accused ] could execute any order given by [ the applicant ] .

These [ hearsay ] statements were not confirmed by NORP [ co - accused ] or GPE [ convicted by ORG on DATE ] either at the investigation stage or during the proceedings .

Moreover , NORP [ co - accused ] stated that the money [ for a murder ] was paid by another person , GPE , but not by [ the applicant ] .

It had not been established that [ the applicant ] participated in meetings of the criminal gang , in the planning of the murders , or that he had had contact by telephone with the members of the criminal gang .

None of the witnesses interrogated in respect of this head of charge [ founding and heading a criminal gang ] as well as in respect of the charges concerning murders and attempted murders , had made any statements that would incriminate [ the applicant ] .

According to section QUANTITY of LAW , the founders and the heads of criminal gangs bear responsibility for all the offences committed by the gang . In the present case , the investigation body itself cast doubt on [ the applicant ] 's status as founder and head of the criminal gang by only charging him with CARDINAL murders out of a total of QUANTITY and with CARDINAL attempted murders out of a total of CARDINAL .

Having before it such a declarative indictment , which is based on suppositions and with no evidence having been adduced during the proceedings in support of the indictment , the court finds itself incapable of convicting [ the applicant ] . ”

As to the charges concerning the murders , attempted murders , the deprivation of liberty and the possession of firearms in the applicant 's capacity as founder and head of the criminal gang , ORG found as follows :

“ ... It was not proved that [ the applicant ] was involved in the alleged offences either as an executor , instigator or accomplice .

During the hearing the prosecutor dropped the charges against [ the applicant ] concerning the attempted murder of PERSON . and PERSON while considering that there was no evidence to support those charges . At the same time he maintained the charges in respect of other co - accused , thus again casting doubt on [ the applicant ] 's responsibility for organising the murders and attempted murders .

In such circumstances , [ the applicant ] can not be convicted either for being the organiser of the deprivation of liberty of Gr . , NORP and C. ... or for possession of firearms ... in the capacity as founder of the criminal gang . ”

In so far as the charge concerning possession and use of false documents was concerned , the court stated , inter alia , that :

“ [ the applicant ] is also accused of obtaining false identity documents and of using them to travel to GPE .

Both during the investigation and the court proceedings [ the applicant ] pleaded his innocence ....

During his interrogation of DATE , the accused PERSON [ the head of the ORG authority which allegedly issued false identity papers to the applicant ] did not incriminate [ the applicant ] . Only on DATE , after the criminal proceedings against him [ PERSON ] had been discontinued , did he submit that [ the applicant ] had obtained a false identity card and passport .

In such circumstances , the court has doubts about the truthfulness of PERSON 's declarations .

Moreover , the prosecution failed to produce any of the documents allegedly forged by [ the applicant ] such as a birth certificate , military card , marriage certificate or other documents necessary for obtaining an identity card and a passport .

Nor have the false identity card and passport been presented to the court .

[ the applicant ] 's signature does not appear on the application form lodged with the passport authority for the purpose of issuance of passport no . DATE ... ”

As to the charge of blackmail ORG stated , inter alia , the following :

“ [ The applicant ] is accused of , DATE , together with GPE and GPE , extorting CARDINAL NORP lei ( ORG ) from C. ...

[ The applicant ] denied having extorted money from C ....

[ The applicant ] 's guilt was not confirmed for the following reasons :

During the hearing C. was interrogated and confronted with J. He declared that ... in DATE he borrowed MONEY ( ORG ) from J. Then he met PERSON and [ the applicant ] . The latter told him to repay the debt as soon as possible .

Later PERSON , together with ORG . , started to pay him [ C. ] visits and to threaten him and to take money from him ... He [ C. ] believes that [ the applicant ] was their leader . [ The applicant ] told him to repay the debt . C. declared that it was not [ the applicant ] who had sent the bandits to him but J.

J. declared that he lent C. USD CARDINAL,CARDINAL and that C. did not pay it back for a long time . He sold his claim to GPE for approximately USD CARDINAL,CARDINAL . During the investigation he was forced to make statements incriminating [ the applicant ] , under threat of reprisals by the police ...

It does not follow from the declarations made by C. and J. that [ the applicant ] threatened anyone or extorted money .

Moreover , by an order of CARDINAL DATE ... the criminal case against GPE and GPE concerning the extortion of money from C. had been discontinued for lack of evidence .

By an order of DATE the prosecutor quashed the order to discontinue the case ...

Accordingly , there is another criminal case pending against other persons in respect of the alleged blackmail ... ”

Concerning the theft charge , ORG found , inter alia :

“ [ The applicant ] is accused of , in DATE , together with other unidentified persons , overtly stealing C.E. 's car ...

[ The applicant ] denied his guilt and declared that he did not know C.E.

The evidence adduced by the prosecutor does not confirm [ the applicant ] 's guilt ...

CARDINAL declared to the court that the car ... was registered in his name when he worked as a cashier for company S. After the death of his uncle ... who was the head of the company ... the uncle 's partner requested that he [ C.E. ] bring the car back to the company . He brought the car , but kept a set of documents for himself ...

Once he took the car and travelled abroad with it . After his return , NORP told him that [ the applicant ] told him to bring back the car .

After a while he was stopped by another car ... CARDINAL persons assaulted him and took his car . They went to a restaurant together , where [ the applicant ] asked him why he had taken the car and they both agreed to sell it . CARDINAL argues that his uncle left him the car , but that no documents were issued to that effect .

It was not confirmed that [ the applicant ] dispossessed C.E. of the car . It was not established who the persons who assaulted CARDINAL were .

In assessing ORG 's depositions , the court considers that he is interested in the outcome of the case , since he has claims over the car . Moreover , ORG found in a judgment of DATE that it was company PERSON which was the owner of the car and not C.E.

It is not possible to rely on ORG 's statements alone for the purpose of convicting [ the applicant ] .... ”

As to the charge concerning the possession ( in his personal capacity ) of firearms and drugs during his arrest in a pharmacy , ORG stated , inter alia , the following :

“ ... [ the applicant ] pleaded not guilty and ... argued that he did not have any firearms or drugs on him during his arrest ...

... The [ CARDINAL ] police officers ... who participated in [ the applicant ] 's arrest in DATE declared that they had found a pistol on him ... and a bag of drugs .

Witness PERSON declared that ... when she entered the pharmacy , [ the applicant ] was already on the floor . She saw a pistol and a bag of powder . [ The applicant ] was shouting that the pistol had been planted by TIME . She heard CARDINAL gun shots .

Witness PERSON declared that ... when she came to work the pharmacy was surrounded . [ The applicant ] was seated on a chair . She saw a pistol on the floor . She did not see where the bag [ of drugs ] had come from .

Witness E.A. declared that ... she was at her place of work in the pharmacy . CARDINAL armed persons entered the pharmacy and ordered everybody to lie down . When she was in the corridor , she heard CARDINAL gunshots . When she entered the main room , she saw a crowd and a pistol on the ground . [ The applicant ] was shouting that nothing was to be put in his pockets .

Witness GPE declared that she was at work and that she heard noise . The police entered the pharmacy and ordered everybody to lie down . When [ the applicant ] was lying down , she heard shouts and CARDINAL gunshots coming from outside .

Witness I. declared that ... she was at work . She heard noise . She saw a man on the floor and a gun near him . She heard gunshots as she was going to the main room .

The court has carefully examined the video - audio recording and noted that during the arrest [ the applicant ] was shouting that no guns or other objects were to be put in his pockets .

The video - audio recordings were not made in accordance with the law .

The video film is not continuous and on occasion the camera is directed away from [ the applicant ] . During the search , only [ the applicant ] 's head was filmed , but not the objects which were taken from his pockets .

... the witnesses to the arrest declared that they had not seen a bag [ of drugs ] . Witnesses PERSON and NORP declared that the gunshots had gone off when [ the applicant ] was on the floor .

According to the ballistic report ... it appears that the gunshots came from [ the applicant ] 's pistol .

No witness declared that the shots were fired by [ the applicant ] , and in any event it would have been impossible for him to have fired , because when the gunshots were heard , he was in the [ main room of the pharmacy ] , according to witnesses PERSON and I.

The court considers that the testimonies of the police officers who arrested [ the applicant ] have no probative value , since they were involved in his arrest ...

Since there are doubts in respect of [ the applicant ] 's guilt , and since any doubts should be interpreted in favour of the accused , he should be acquitted ... ”

NORP The prosecution appealed against this judgment on the basis of the same accusations and the same arguments in favour of the applicant 's conviction .

On DATE , DATE , at the door of the court room , the applicant was arrested by officers from ORG ( “ LOC ” ) and placed in detention .

DATE , DATE , the applicant was taken to ORG , where he was convicted and sentenced to DATE administrative arrest for disobeying a police officer , forcible resistance of police officers on duty and insulting a police officer , contrary to Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW respectively . It appears that the applicant was not assisted by a lawyer during the administrative proceedings .

On DATE the applicant 's lawyer lodged an appeal against the conviction , in which he argued that the applicant had not committed any administrative offence . He did not complain of the fact that the applicant was not assisted by a lawyer during the administrative proceedings .

On DATE the ORG heard the applicant 's appeal in his absence and in the absence of his lawyer and dismissed it as unfounded . Meanwhile , the applicant was detained in the detention centre of ORG in PERSON . According to him , the conditions of detention were inhuman and degrading . He submitted a detailed description of the conditions of detention and argued that the same description could be found in the DATE report of ORG ( ORG ) concerning GPE . The Government disputed the applicant 's allegations about the conditions of detention .

On DATE , after the expiry of the DATE period of administrative detention , the applicant was not released but arrested again on charges of a new offence of blackmail .

On DATE ORG issued an order for the applicant 's remand in custody for DATE . The court 's reasoning was the following :

“ [ The applicant ] is suspected of having committed an offence which is punishable by DATE imprisonment , has been previously convicted and might try to avoid criminal responsibility . His release could impede the discovery of the truth ” .

The applicant appealed and asked to be given access to the criminal case file ; however , he was only given a copy of the complaint lodged by the alleged victim .

On DATE ORG dismissed the applicant 's appeal .

On DATE , contrary to the submissions of the applicant and his lawyer , a meeting between them took place in the presence of an investigator .

On DATE the applicant 's lawyer complained about this to a judge and asked him to find a violation of the relevant domestic law and of LAW . He also asked the court to issue an order to the investigating authority to the effect that the meetings with his client be held in conditions of confidentiality .

On DATE a judge from ORG upheld the lawyer 's complaint by finding a violation of the domestic legislation governing the conduct of criminal investigations and guaranteeing the confidentiality of lawyer - client meetings . The court ordered the investigating authority to ensure conditions of confidentiality for the applicant and his lawyers .

It appears that the applicant 's pre - trial detention was periodically renewed on the basis of the same grounds as in the decision of CARDINAL DATE ( see paragraph CARDINAL above ) and that he was detained until DATE , when ORG examined the appeal lodged by ORG against the judgment of acquittal of DATE .

He was detained in the detention centre of the ORG . According to him , the conditions of detention were similar to those in which he had been detained following his administrative arrest except that he had been detained in solitary confinement . He submits that the conditions of detention in that facility have also been described in the ORG report mentioned above . The Government disputed that the conditions of detention were as described by the applicant .

It appears that the new criminal proceedings against the applicant ended with the final judgment of ORG of DATE , by which the applicant was found guilty of blackmail and sentenced to DATE imprisonment .

On DATE a panel of CARDINAL judges of ORG , composed of Judges PERSON , PERSON and PERSON , examined the appeal lodged by ORG against the applicant 's acquittal . The appeal was examined in the applicant 's absence , although his lawyers were present .

In their pleadings , the defence essentially endorsed the reasons given by the first - instance court in its judgment of DATE acquitting the applicant .

In so far as the charges concerning the founding and heading of a criminal gang and the offences allegedly committed in the applicant 's capacity as head of that gang , the defence submitted , inter alia , that the hearsay statements made by the co - accused , S. , had no probative value since their alleged source denied having made such declarations . Moreover , PERSON 's declarations were based on his own suppositions , as he himself had admitted during his interrogation .

The defence also argued that there was no evidence that the applicant had attended the meetings of the criminal gang or had been involved in the planning of the murders or that he had even had telephone contact with any of the members of the gang .

The applicant 's innocence was also confirmed , according to the defence , by the fact that he was not charged with all the offences committed by the criminal gang , which normally should have been the case had the prosecution genuinely believed him to be the head of the gang . In this connection the defence relied , exactly as the first - instance court had done , on the provisions of section CARDINAL of LAW , which stated that the head of a criminal gang bears responsibility for all the offences perpetrated by the gang . The defence also relied on the fact that the prosecution had dropped the charges relating to CARDINAL attempted murders .

In so far as the charge concerning the use of false documents was concerned , the defence submitted essentially the same arguments which had been used by the first - instance court for the applicant 's acquittal . Besides that , the defence also argued that it was obvious from a video recording that the main witness , PERSON , ( the clerk who had allegedly issued the false passport ) , and who had allegedly recognised the applicant 's photograph , had been shown by a police officer which photograph to pick out .

As to the charge concerning the theft of a car , blackmail and the possession of drugs , the defence used essentially the same arguments as used by the first - instance court in its acquittal judgment .

ORG upheld the prosecutor 's appeal , and found the applicant guilty of all the offences as charged , with the exception of possession of a pistol during his arrest on DATE and possession of firearms in his capacity as head of the criminal gang ( see below ) .

As to the charge concerning CARDINAL attempted murders ( of PERSON and Po . ) , the court endorsed the prosecution 's version of the facts according to which the applicant , NORP and PERSON , together with other members of the criminal gang , had elaborated a plan to do away with their rival , PERSON For that purpose , a group of CARDINAL members of the gang had waited for the victim near his house . Mistakenly , the person who was supposed to carry out the killing had fired at ORG 's bodyguard . The bodyguard had been wounded and PERSON had managed to escape . The court used the following evidence to find the applicant guilty :

“ ... [ Co - accused ] PERSON stated that PERSON was preventing [ the applicant ] from returning to the city ...

[ Co - accused ] NORP stated [ during the proceedings which ended with the judgment of ORG of DATE , in which CARDINAL members of the criminal gang were convicted ] that GPE [ one of the participants in the attempted murder of F. and Po . ] had good relations with a leading figure in the criminal world named ORG and that GPE asked him to kill PERSON since he was a nuisance to ORG .... ”

In so far as the charges concerning the murder of PERSON and the illegal deprivation of liberty of his bodyguards ( NORP and C. ) were concerned , the court accepted the prosecution 's version of the facts according to which [ the applicant ] , G.D. , NORP , PERSON , ORG and several other persons had devised a plan to murder a gang leader named PERSON For that purpose a group of CARDINAL persons , dressed in police uniforms , shoved PERSON and his bodyguards into a minivan . They drove them outside the city , where they killed PERSON The court used the following evidence to find the applicant guilty :

“ ... [ Co - accused ] S. declared that [ co - accused ] NORP had told him that [ the applicant ] had given him NORP for the murder of G ....

The participation [ of the applicant ] and his role as organiser in the murder of PERSON and in the illegal deprivation of liberty of NORP and C. are confirmed by [ co - accused ] PERSON , who declared during the proceedings that his testimonies during the investigation stage were true and that he maintained them ...

[ Co - accused ] PERSON stated that he was introduced to [ the applicant ] 's men ORG by ORG , who was close to [ the applicant ] .

ORG [ a member of the criminal gang convicted on DATE ] had told [ co - accused ] S. that PERSON should be abducted ... because he was a nuisance to the criminal activity of [ the applicant ] ....

[ Co - accused PERSON also declared that ] for PERSON 's murder ORG were paid and that the money was brought by ORG ( a person close to [ the applicant ] ) . [ Co - accused ] PERSON told him that [ the applicant ] had provided the money ....

During the confrontation between [ co - accused ] S. and O. , in the presence of lawyers , the former declared that [ co - accused ] NORP had told him that PERSON should be abducted in order for [ the applicant ] to ' deal with him ' ....

The evidence in the court 's possession is indicative of the fact that [ the applicant ] ordered the murder of PERSON and paid for it through [ co - accused ] G.D.

[ The applicant ] and ORG organised the illegal deprivation of liberty of PERSON , NORP and GPE

As to the charge concerning the murder of NORP and PERSON and the attempted murder of ORG , the court accepted the version of the facts presented by the prosecution , namely that the applicant , PERSON , NORP , PERSON and ORG had devised a plan to murder the gang leader PERSON For that purpose they also involved GPE , GPE , ORG and ORG In TIME of DATE , after following NORP 's car , CARDINAL of the accused ( GPE ) fired at the car from a machine gun and killed NORP and his bodyguard PERSON The other bodyguard , PERSON , was wounded . The court used the following evidence to find the applicant guilty :

“ ... During the confrontation between [ co - accused ] S. and O. , in the presence of lawyers , the former declared that he had received USD MONEY from ORG for the murder of R ....

... During his interrogation , which was video recorded , [ co - accused ] S. declared that ORG was the one who had had a fight with P.A. , who was [ friends ] with the PERSON brothers and [ the applicant ] ....

... [ co - accused ] S. declared that ORG was part of [ the applicant ] 's team and that he could not order [ the applicant ] to do anything ....

[ Conclusion ] [ the applicant ] organised the murder of NORP and G.I. ... and the attempted murder [ of ORG ] .

In so far as the charge concerning the possession of firearms in his capacity as founder and head of the criminal gang , the court concluded that this charge should not be treated separately but as part of the charge concerning the founding and heading of the criminal gang .

As to the charge concerning possession of a gun in his personal capacity at the time of his arrest in a pharmacy on DATE , the court dismissed the testimonies of the policemen , who declared that the gun and a bag of heroin had been found in his pocket , and concluded that the guilt of the applicant had not been established , since according to the witnesses he could not have fired the gun in the corridor of the pharmacy as at that time he had been lying in the main room of the pharmacy .

At the same time , the court found the applicant guilty of possession of QUANTITY of heroin which were allegedly in his pocket together with the gun , according to the same declarations of the policemen . The court argued , inter alia , that :

“ ... According to TIME of the search of DATE , which was video recorded , a bag of drugs was found in [ the applicant ] 's pocket ...

According to the report ... the packet contained QUANTITY of heroin ... ”

In so far as the charge concerning the use of false documents was concerned , the court found that in DATE the applicant obtained an identity card and a passport with a false identity . The court stated , inter alia , that :

“ [ Co - accused ] S. declared that he maintained his statements made during the investigation ...

[ Co - accused ] PERSON also declared that in DATE he had obtained a passport with a false identity . At the same time , [ the applicant ] had also obtained false documents .

B. [ the clerk who had allegedly issued the false passport ] identified [ co - accused ] S. as being the person who had asked him to make a false passport for [ the applicant ] ....

It follows from TIME of the confrontation between PERSON and [ the applicant ] , with the participation of a lawyer , that PERSON identified [ the applicant ] and confirmed that [ the applicant ] ... obtained a passport with a false identity ...

... S. identified [ the applicant ] ... and confirmed that he knew him ...

It appears ... that there were CARDINAL applications for identity papers , CARDINAL bearing the name of [ the applicant ] and another bearing the name of S.I.B.

According to the expert 's report ... the signatures on both applications belong to the same person ... the pictures on the both applications are of the same person but were taken at different times ...

The use of the false identity papers by [ the applicant ] is confirmed by the ... fact that he travelled by aeroplane from GPE to GPE using a passport bearing the name LOC ”

As to the charge concerning the blackmail of ORG , the court found that DATE , the applicant and QUANTITY other persons extorted MDL CARDINAL and other goods from C. It was also found that C. owed ORG CARDINAL to a businessman named PERSON , who declared during the proceedings that he had sold the debt to one of the persons who allegedly later extorted money from C. with the applicant . In convicting the applicant , the court relied solely on the declarations of C. , who accused the applicant of blackmail . It did not give any assessment of the statements of PERSON , or of the statements in the applicant 's defence .

In so far as the charge concerning the theft of a car was concerned , the court found that in DATE , following a dispute between a private company and CARDINAL of its former employees concerning proprietary rights over a car , the applicant organised the theft of the car . In particular , the victim ( the former employee ) was stopped and assaulted by CARDINAL men and his car was taken away . The applicant denied any involvement in the offence and argued that he had never seen the victim of the alleged offence before the hearing . In convicting the applicant , the court relied solely on the declarations of the victim .

ORG concluded that on the basis of all the evidence adduced in support of the charges against the applicant , it could be deduced that he was the founder and leader of the criminal gang . It therefore found the applicant guilty of founding and heading a criminal gang and held that :

“ ... The fact that some offences ( murders and attempted murders ) have not been imputed to CARDINAL of the founders of the criminal gang [ the applicant ] , can not serve as a reason for acquitting him .... ”

The judgment of ORG contained no reference to the findings of the first - instance court in respect of the evidence and the applicant 's guilt . Nor did it contain any reference to the submissions of the defence made before it .

The applicant was convicted and sentenced as follows :

For founding and heading a criminal gang – to twenty - four years ' imprisonment ;

For attempted murder in his capacity as founder and head of the criminal gang DATE imprisonment ;

For murder in his capacity as founder and head of the criminal gang – to life imprisonment ;

For illegal deprivation of liberty in his capacity as founder and head of the criminal gang DATE imprisonment ;

For possession of false identity papers DATE imprisonment ;

For theft of a car – to DATE imprisonment ;

For blackmail DATE to DATE imprisonment ;

For possession of drugs DATE imprisonment

On the basis of the principle of absorption of the lesser punishment into the greater punishment , he received a final sentence of life imprisonment .

One of the members of the panel of ORG which convicted the applicant disagreed partially with the opinion of the majority and wrote a dissenting opinion . He stated , inter alia :

“ The evidence presented by the prosecution is not sufficient to prove [ the applicant ] 's guilt in respect of the offences [ enumerated below ] . ... The court has not established the role , the degree and the manner [ of involvement ] of [ the applicant ] in :

- the founding and heading of the criminal gang ;

- the commission of the murders ;

- the commission of the attempted murders ;

- the illegal deprivation of liberty ;

- the possession of drugs ;

Nor has it established the nature of the [ structure of the ] criminal relationship between him and the rest of the convicted persons .

[ The applicant ] 's accusation in respect of the above offences relies in essence on the declarations of [ co - accused ] S. The latter did not incriminate [ the applicant ] as being a co - participant in the commission of the offences by the criminal gang . His declarations do not confirm the facts and the circumstances which result from the totality of the evidence from the case file in respect of [ the applicant ] . They represent suppositions or are based on hearsay statements , which in their turn have not been confirmed by the alleged sources .

It is important to note that the court gave different assessments of similar evidence concerning the possession of a gun and the possession of drugs during [ the applicant ] 's arrest in a pharmacy on DATE ....

I express my conviction that it was not correct to sentence [ the applicant ] to life imprisonment without hearing evidence from him in person , in the circumstances in which he was acquitted [ by the judgment of DATE ] and was remanded in custody [ prior to his conviction by ORG ] . This is all the more so since the judgment of ORG is final and there is no appeal against it .

In the light of the above , I believe that ... the provisions of LAW were disregarded ... ”

Section CARDINAL of LAW in force at the material time read as follows :

The founders and the heads of a criminal gang are responsible for ... all the offences committed by the criminal gang .

Article CARDINAL of the Code of Criminal Procedure reads as follows :

“ After examining an appeal on points of law ( recurs ) [ in respect of certain offences there is CARDINAL level of appellate jurisdiction ( recurs ) , rather than CARDINAL levels ( PERSON followed by recurs ) , before a final judgment is delivered ] , the court shall adopt one of the following decisions :

CARDINAL ) allow the recurs , set aside the judgment entirely or partially and adopt CARDINAL of the following solutions :

a ) order the acquittal of the accused person and the termination of the criminal proceedings in his or her respect ;

b ) re - examine the case and adopt a new judgment ;

c ) order a re examination of the case by the first - instance court if ORG allows the recurs and it is necessary to examine new evidence . ”

According to Article CARDINAL the procedure of re - examination is regulated by LAW . The latter LAW states that after the setting aside of a judgment in recurs , the re - examination shall be carried out in accordance with the general rules of examining a criminal case .

In a letter dated DATE addressed by a Deputy Prosecutor General to ORG , it was stated , inter alia , that due to lack of funds the NORP prisons were not sufficiently provided with meat , fish and dairy products .

The relevant findings of the ORG , ( unofficial translation ) read as follows :

Conditions of detention .

a. Institutions of ORG

Since DATE , when it first visited GPE , the ORG has serious concern for the conditions of detention in the institutions of ORG .

The ORG notes that CARDINAL out of CARDINAL EDPs have been subjected to “ cosmetic ” repair and that CARDINAL have been equipped with places for DATE walks . Nevertheless , the DATE visit did not allow the concern of the ORG to be alleviated . In fact , most recommendations made have not been implemented .

Whether CARDINAL refers to the police stations or EDPs visited , the material conditions are invariably subject to the same criticism as in the past . Detention cells had no access to daylight or a very limited access ; artificial light – with rare exceptions – was mediocre . Nowhere did the persons obliged to spend TIME in detention receive mattresses and blankets , even those detained for prolonged periods . Those who had such items could only have obtained them from their relatives ...

As for food ... in the EDPs the arrangements made were the same as those criticised in DATE ( see paragraph CARDINAL of the report on that visit ) : generally CARDINAL modest distributions of food per day including tea and a slice of bread in the morning , a bowl of cereal at TIME and tea or warm water in TIME . Sometimes there was CARDINAL distribution of food per day . Fortunately , the rules for receiving parcels have been relaxed , which allowed detainees with relatives outside to slightly improve these meagre DATE portions .

In sum , the material conditions remain problematic in the police stations ; they remain disastrous in EDPs , continuing in many aspects to amount , for the detainees , to inhuman and degrading treatment . ”

“ PERSON Establishments visited

... - EDP of ORG

... b. PERSON remand centres ( EDPs )

In its report on the DATE visit ( paragraph CARDINAL ) , the ORG was forced to conclude that material conditions of detention in the remand centres ( EDPs ) visited amounted in many respects to inhuman and degrading treatment and , in addition , constituted a significant risk to the health of persons detained . While recognising that it was not possible to transform the current situation in these establishments TIME , the ORG recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity .

Unfortunately , during the DATE visit , the delegation found barely any traces of such palliative measures , in fact quite the opposite . For example , the renovation and reconstruction of the cells of the ORG of ORG for the fight against organised crime and corruption in PERSON ( reopened in DATE ) , which were supposed to reflect the ORG 's DATE recommendations , turned out to have had quite the contrary effect . All the conceptual and organisational shortcomings highlighted by the ORG at the time had been faithfully reproduced : cells without access to natural light , artificial lighting of low intensity and permanently switched on , inadequate ventilation and furnishings consisting exclusively of platforms without mattresses ( although certain prisoners did have their own blankets ) . A similar conclusion can be drawn about the new section of ORG set aside for administrative detainees .

CARDINAL can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the NORP authorities have paid no attention to the ORG recommendations . In fact , this state of affairs strongly suggests that , setting aside economic considerations , the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty .

Turning to the other EDPs visited across GPE , with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions . A detailed description is superfluous , since it has all been highlighted already in DATE of the report on the DATE visit .

In PERSON ORG , these conditions were exacerbated by serious overcrowding . At the time of the visit , there were CARDINAL prisoners for CARDINAL places , requiring QUANTITY persons to cram into a cell measuring QUANTITY into cells of CARDINAL m² .

The delegation also received numerous complaints about the quantity of food in the EDPs visited . This normally comprised tea without sugar and a slice of bread in the morning , cereal porridge at lunch time and hot water in TIME . In some establishments , food was served just once a day and was confined to a piece of bread and soup . ...

... Concerning the issue of access to toilets in due time , the ORG wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of CARDINAL or several other persons , in a confined space such as the ORG cells which also serve as their living space , is in itself degrading , not only for the individual concerned but also for those forced to witness what is happening . Consequently , the ORG recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should DATE if they so request – be taken out of their cell without delay during DATE in order to go to the toilet .

The ORG also recommends that steps be taken to :

- reduce the overcrowding in PERSON as rapidly as possible and to comply with the official occupancy level ;

- supply persons in custody with clean mattresses and clean blankets ;

- authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter .

In the light of certain observations made , particularly in the ORG of ORG , the ORG also reiterates its recommendation concerning strict compliance , in all circumstances , with the rules governing separation of adults and minors . ”

One of the applicant 's co - accused , ORG , who was also sentenced to life imprisonment , ORG , escaped from GPE and currently resides in GPE . On an unspecified date the GPE authorities requested the NORP authorities to extradite him in view of serving the sentence . The application for extradition was examined by the NORP courts and a final verdict was adopted by ORG in a judgment of DATE .

The court decided to reject the application for extradition on grounds of serious suspicion that the proceedings leading to ORG 's conviction had not complied with the basic rules of fairness . In particular , the court found that the applicant and other co - accused were subjected to torture and pressure in order to confess to the offences imputed to them or to incriminate other co - accused . In finding the above , the court relied on witness testimonies to the effect that ORG had signs of violence on his body during the court hearings . The allegations of ill - treatment were consistent with reports of NORP and ORG bodies specialised in the protection of human rights . The court relied , inter alia , on a report of ORG concerning GPE , in which it was stated that the NORP justice system lacked independence from the Government and that ill - treatment and torture by police was a wide spread practice in GPE . The court also relied on several other reports from ORG and ORG and ORG bodies specialised in the prevention of torture with similar allegations concerning GPE . The court also noted that the judge of ORG who acquitted PERSON ( see paragraph CARDINAL above ) was subsequently dissmissed .

The court also expressed concern about ORG 's conviction by ORG in his absence but only on the basis of the documents in the file and expressed the view that there were no guarantees that if extradited to GPE , PERSON would not be subjected to inhuman treatment .


The applicant , Mr PERSON , is a GPE national who was born in DATE and is detained at FAC , GPE . The respondent Government are represented by their agent , Mr PERSON , of ORG , GPE .

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

The applicant entered the GPE police force in DATE , and transferred to the GPE police in DATE . He was promoted to sergeant in DATE .

On DATE the applicant was convicted of sexual offences against women , including rape , and sentenced to a total of CARDINAL years’ imprisonment . CARDINAL of the offences were committed whilst the applicant was on duty . His victims were young women in their CARDINALs who had been detained at the GPE police station for minor offences . The applicant was the custody sergeant responsible for those women . While on duty at the police station , he sexually assaulted CARDINAL of the women and raped the other . CARDINAL of the offences ( burglary with intent to rape and rape ) were committed by the applicant after his victim had informed him , when he was on duty in uniform in GPE , that she had been burgled some time previously . She gave him her name and address . The applicant subsequently entered the woman ’s house in the middle of the night and raped her .

The trial judge described the assaults committed by the applicant whilst on duty as “ the most gross breaches of trust and duty ” .

On DATE , the applicant was dismissed from the police force by the Chief Constable . On that date he had DATE and DATE of pensionable service .

On DATE , the Home Secretary on the request of the police authority issued a certificate of forfeiture under Regulation KCARDINAL of LAW DATE ( “ the Regulations ” ) . The letter accompanying the certificate stated :

“ The Secretary of ORG considered whether the offences , which Mr ORG was convicted of , were liable to lead to a serious loss of confidence in the public service . In reaching his decision he took account of the circumstances leading up to the offences and conviction , the sentences imposed by the court and the media publicity given to the case .

The Secretary of ORG considers the conviction on the offences of rape , indecent assault and burglary to be very serious ; as it clearly constitutes the betrayal of important positions of trust , especially as CARDINAL of the offences were committed while Mr GPE was custody sergeant . The gravity of the offences is well illustrated by the judge ’s comments .

The Secretary of ORG also considers that Mr ORG abused his position as a police officer , especially as the offences clearly constitute the betrayal of an important position of trust for personal satisfaction .

He takes the view that as an officer of CARDINAL years’ service , Mr ORG ’s actions and conviction and the reporting of these , are liable to lead to a serious loss of confidence in a public service . The Secretary of ORG has decided therefore to issue a certificate which will allow the authority to forfeit Mr ORG ’s pension . ... ”

On DATE the Complaints and ORG of ORG heard representations from the applicant as to why he should not forfeit his pension . The applicant was represented at that hearing by a solicitor . At the conclusion of the hearing , the applicant was notified that PERCENT of his pension would be forfeited ; PERCENT represented his own contributions .

The applicant appealed to ORG , as provided for by Regulation HCARDINAL of the Regulations . A hearing was originally listed for DATE . However , the applicant was at that time seeking judicial review of ORG refusal to grant him civil legal aid for the purposes of the appeal . The hearing was accordingly adjourned pending the determination of the applicant ’s claim for judicial review . That claim was dismissed on DATE on the ground , inter alia , that it stood no prospects of success .

The applicant ’s appeal to ORG was subsequently heard by ORG on DATE and DATE , and judgment was given on DATE . The Recorder held that the forfeiture of the applicant ’s pension did not represent a double penalty and did not otherwise unlawfully interfere with the applicant ’s Convention rights . In support of the conclusions , he noted , amongst other matters :

“ A police officer ’s pension is partly contributory but substantially publicly funded . It stands to represent the public ’s gratitude for good public service given by the officer during DATE of service , and an honourable police officer is entitled to that pension as of right . It must follow that if a police officer becomes a criminal the public must be entitled to say that he should not be rewarded as though he was a responsible and decent officer . If an officer ’s criminality is such that it can only be likely to undermine the confidence of the public in the police as a service , then he can not be rewarded for having produced that situation .

In my judgment it is almost impossible to find circumstances in which public confidence is more likely to be undermined than in the present case . Some of the applicant ’s attacks on women took place when they were in his care as custody sergeant at a police station . In addition , he used information coming to him as a police officer to prey on women outside the police station . Such conduct runs the very considerable risk of causing women not to trust their local police . ”

The ORG did , however , request further evidence as to the basis on which it had been calculated that the applicant ’s contributions represented PERCENT of his pension . As a result of the information provided , the ORG reduced the amount of the applicant ’s pension ordered to be PERCENT .

The ORG commented at the end of his judgment that , although the applicant had been obliged to present his own case , he had done so admirably and could not have been better represented by a lawyer .

The applicant ’s application for permission to apply for judicial review of ORG decision was refused by PERSON Justice PERSON on DATE on the following grounds :

“ CARDINAL.CARDINAL The applicant ’s application for legal aid was refused , for reasons which PERSON has already decided can not be attacked . The applicant may have been a litigant in person , but there is no question of inequality of arms or other unfairness : on the contrary , all the points that the applicant ( who had ample time to prepare himself ) wished to argue were fully debated before ORG ( and indeed the applicant partially succeeded ) . I note , in passing , that the Recorder observed that the applicant presented his case very ably and that he could not have been better represented by a lawyer .

CARDINAL.CARDINAL There is no infringement of LAW of LAW No . CARDINAL ] . The forfeiture of the pension can be justified by reference to the public interest , and a fair balance was struck and proportionality achieved , in the outcome of this case . No lack of proportionality arises from the fact that the applicant had already been sentenced to an CARDINAL-year term or other matters now advanced by him . As for PERSON v. GPE , that is clearly distinguishable : in that case the relevant statute provided for mandatory forfeiture of accrued pension rights , with no allowance for discretion . That is not this case . ...

CARDINAL In substance this claim is an appeal challenging the correctness of the Recorder of Leeds’ decision . But in my view the judge ’s reasoning was correct in all relevant respects . ”

The written notification of the judge ’s decision included a note that :

“ Where the judge has refused permission a claimant or his solicitor may request the decision to be reconsidered at a hearing by completing and returning form CARDINALB within DATE of the service upon him of this notice . ”

The applicant did not apply for reconsideration of the decision at a hearing .

Regulation KCARDINAL of LAW DATE provides , so far as relevant , as follows :

“ ( CARDINAL ) [ A ] police authority ... may determine that [ a ] pension be forfeited , in whole or in part and permanently or temporarily as they may specify , if the grantee has been convicted of an offence committed in connection with his service as a member of a police force which is certified by the Secretary of ORG either to have been gravely injurious to the interests of the ORG or to be liable to lead to serious loss of confidence in the public service .

( CARDINAL ) ... the police authority in determining whether a forfeiture should be permanent or temporary and affect a pension in whole or in part , may make different determinations in respect of the secured and unsecured portions of the pension ; but the secured portion of such a pension shall not be forfeited permanently and may only be forfeited temporarily for a period expiring before the grantee attains state pensionable age or for which he is imprisoned or otherwise detained in legal custody . ”

ORG CARDINAL gives guidance on forfeiture of police pensions . Annex B sets out the CARDINAL stages of the procedure . The first stage is for the police authority to identify a case where an officer has committed an offence in connection with his or her service as a member of a police force . The second stage is for the Home Secretary to consider whether the officer ’s offence was either gravely injurious to the interests of the ORG or liable to lead to serious loss of confidence in the public service . The ORG provides :

“ A person ’s rights to a police pension are part of the remuneration to which his / her service has entitled him / her and it is not axiomatic that a certificate will be issued . Forfeiture is an additional penalty which should not be added automatically to whatever sentence the ORG has imposed . In deciding whether to issue a certificate therefore , the ORG Secretary attaches a greater weight to the words “ serious loss of confidence in the public service ” than the harm inevitably caused by any police officer or former police officer who commits a crime . The ORG Secretary will take into account :

- The seriousness with which the ORG viewed the offence ( as demonstrated by the punishment imposed and the sentencing remarks ) ;

- the circumstances surrounding the offence and investigation ;

- the seniority of the officer or former officer ( the more senior , the greater the loss of credibility and confidence ) ;

- the extent of publicity and media coverage ; and

- whether the offence involved :

an organised conspiracy amongst a number of officers , active support for criminals , the perversion of the course of public justice , the betrayal of an important position of trust for personal gain , and/or the corruption or attempted corruption of junior officers . ”

The third stage of the procedure is the decision by the police authority whether or not the pension should be forfeited and the determination of the extent of the forfeiture . The ORG states that the courts have ruled that the pension may be forfeited by PERCENT , the remainder reflecting an officer ’s own contributions . It continues “ As certificates are likely to be issued only in serious cases , it follows that substantial forfeiture ( say , PERCENT ) would normally be imposed . ”

Factors which might influence the extent of forfeiture include those listed above which reflect the gravity of the officer ’s conduct , mitigating factors , illness and assistance given to the police during the investigation or following conviction .

As to the amount of pension which can be forfeited , the Lord Chief Justice ( Lord PERSON ) explained in the case of PERSON v. Secretary of ORG for ORG ( DATE ) :

“ Regulation KCARDINAL(CARDINAL ) draws a distinction between the secured and the unsecured portions of a pension . The secured portion of the pension fund is that which represents the officer ’s own contributions . The unsecured portion represents a sum which would in ordinary circumstances be contributed out of public funds . It is understandable that a measure of protection should be guaranteed for the secured part . The unsecured part does not enjoy the same measure of protection . It is nonetheless a very serious step to deprive a former police officer of the unsecured portion of his pension since that represents a part of the reward for his service . It is plain , in my judgment , that an officer or former officer is not to be deprived even of the unsecured portion of his pension unless the condition permitting such forfeiture is clearly shown to be satisfied . ”


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant was born in DATE and lives in PERSON .

In TIME of CARDINAL DATE the applicant noticed CARDINAL people trying to dismantle an electricity sub - station not far from his farm . According to the applicant , he approached them with a gun and warned them , but they threatened him and fired at him , forcing him to use his shotgun against them in self - defence . As a result , all QUANTITY of them died .

The same day criminal proceedings were instituted and the applicant was questioned by the police .

According to the applicant , the investigator told him that it would take a lot of time to fetch a lawyer and he therefore agreed to be without a lawyer since he wanted to help the investigation .

On DATE the applicant was arrested on suspicion of murder .

According to the applicant , on CARDINAL DATE ORG gave an interview to a TV channel and informed the public that the applicant was guilty of murdering CARDINAL people and that he would be punished with up to DATE imprisonment . In the proceedings before ORG , the Government could not confirm or deny this .

On DATE several people , said that DATE previously he had seen an object which resembled a rifle in the possession of PERSON , one of the victims . However , he could not describe it and did not know whether anyone in the village had seen a small - bore rifle recently .

On DATE the applicant was questioned by an investigator . Before being questioned he was given a paper explaining his right to be represented and not to incriminate himself , with an explanation of the pertinent legal provisions of the LAW and LAW . He signed this paper and wrote that he would defend himself . According to the applicant , he wrote this at the request of the investigator .

On DATE the lawyer chosen by the applicant entered the proceedings .

DATE the GPE newspaper published an article entitled ‘ Volnaya Ukraina is LOC ( ‘ Bольная Украина истекает PERSON ) about the incident of CARDINAL DATE and about problems with power cuts caused by the theft of electric power cables for scrap metal . The article described the applicant ’s version of events , in which he stated that the victims had been trying to steal metal parts from an electricity transformer and he had warned them and then fired at their motorcycle with his shotgun . They had fired back with a rifle and he had fired CARDINAL shots in their direction . The article continued as follows :

“ The investigation is not able to confirm that there was an EXCHANGE OF FIRE near the sub - station . The Prosecutor of Golopristansky District , PERSON , stresses : ‘ Despite the efforts made , we did not find any spent cases from the sawn - off small - bore rifle . On the other hand , there were CARDINAL unused cartridges . Searches in the houses of those killed produced no results either : neither ammunition packaging nor spare parts for the weapon have been found . The fingerprints did not stay on the rifle – it was raining , and the barrel was oiled . Incidentally , none of the acquaintances of the deceased ever saw the sawn - off rifle in their possession . Therefore , the criminal proceedings against PERSON were initiated not on account of his exceeding the limits of self - defence , but under LAW ‘ d’ of the C[riminal ] C[ode ] . Under this Article the sentence can be up to life imprisonment . In DATE a person could even risk execution ( by shooting).’ ”

On DATE the applicant was questioned in the presence of his lawyer and confirmed his version of events , which had been stated when he had previously been questioned .

On DATE the applicant ’s lawyer lodged an application in which , among other things , he requested that a witness , PERSON , be examined , and this request was granted .

According to the applicant , as the police were unable to prove his guilt they threatened to turn him into a drug addict . During TIME of CARDINAL DATE his cellmates , who were criminals collaborating with the police , tortured him physically and psychologically to extract a confession from him . They persuaded him to write a note to his friend and even assisted him in drafting it . The note read :

“ Hello B. ! I met PERSON and he told me that you were interested in my problems . Thank you for your man ’s attention . I will immediately answer your questions . I am sharing a cell with normal pals , the relations are normal . I know P. and trust him . As to what I said to the lawyer , it is my business . You should understand that I am accused under LAW and it is not a joke . Therefore I have to talk about prison pressure , but really everything is OK . P. advised me that before the court I should deny my testimony and say that they were killing ( torturing ) me here . That ’s it , thank you for your concern . Yours , PERSON . ”

On DATE the applicant was transferred to a different cell .

On DATE the applicant ’s lawyer complained to the prosecutor that the applicant had been ill - treated by his cellmates , who were forcing him to confess .

According to the report prepared by the prosecutor from ORG on DATE , on DATE he proposed that the applicant undergo a medical examination in order to establish any signs of physical violence . The applicant refused and made a written statement in the presence of his lawyer that he had not been subjected to any physical violence .

On DATE the Deputy Prosecutor of the Kherson Region informed the applicant ’s lawyer that his complaint that the applicant had been ill - treated had been checked and the account could not be confirmed .

On DATE ORG charged the applicant with CARDINAL murders and unlawful possession of weapons ( additional proceedings concerning the latter offence were instituted on DATE ) . The indictment mentioned that relatives and friends of the victims , including those who had seen them just before they left to dismantle the sub - station , did not see and were not told about any weapon in the possession of the victims . Searches of the ORG homes produced no result either . The indictment also mentioned CARDINAL anonymous witnesses questioned by the prosecution under assumed names : Mr PERSON , Mr PERSON and Mr PERSON , who were detained in the same cell as the applicant and to whom he had apparently confessed that on DATE he had intentionally killed CARDINAL people as they were trying to steal electric cables from the local electricity sub - station which supplied electricity to his farm . The applicant alleged that he had acted in self - defence and that he was responding to gunshots fired at him . The investigation revealed no evidence to corroborate the applicant ’s allegations .

On DATE ORG opened judicial proceedings .

On DATE the applicant ’s lawyer lodged an application for the examination of the anonymous witnesses . This application was granted and during the proceedings the CARDINAL anonymous witnesses were examined in the presence of the applicant ’s lawyer , while the applicant himself was removed from the courtroom . Later , CARDINAL of the witnesses agreed to disclose his identity ; he participated in the proceedings under his real name and was questioned in the presence of the applicant .

On DATE ORG remitted the case for further investigation , to check the applicant ’s allegations that his cellmates had forced him to write a note and even assisted him in drafting it and to conduct a handwriting analysis of a correction on the draft note which had allegedly been made by PERSON On DATE ORG overruled the above decision , considering that the handwriting analysis could be conducted within the judicial proceedings and therefore that there was no need to return the case for investigation .

The above - mentioned analysis could not establish who had written the corrections on the draft note , whether it was PERSON , the applicant or someone else .

On DATE ORG sentenced the applicant to fifteen years’ imprisonment for multiple murder and unlawful possession of a weapon . ORG based the applicant ’s conviction on the following : the rifle found near CARDINAL of the deceased was not loaded , there were CARDINAL full cartridges near it and no empty cases ; the police officer who arrived first at the scene of the crime testified that the rifle was clean , although everything around , including the hands of the deceased , was covered in oil ; statements by the applicant ’s cellmates PERSON and Mr Y , . who maintained that the applicant had told them that the rifle had been taken to the scene of the crime after the shooting ; the statements of PERSON and PERSON . , the applicant ’s neighbours , who stated that they had heard four shots , the forensic examination which concluded that the applicant had fired at the victims CARDINAL times ; all CARDINAL victims were hit in the vital organs from a distance of QUANTITY ( the first CARDINAL shots ) and QUANTITY ( the last QUANTITY shots ) and not from the place indicated by the applicant , which was QUANTITY away from the bodies ; the fact that the applicant had cartridges loaded with salt but actually used cartridges loaded with lead shot ; and the testimony of CARDINAL witnesses about previous aggressive behaviour by the applicant .

The applicant appealed in cassation . He complained , inter alia , that the authorities had not made enough effort to bring to the court PERSON , who was outside the territory of GPE , and that witnesses who could have given positive character references for him had not been summoned to the court . He also complained that due to his lack of knowledge and experience the investigation had left him without a lawyer until DATE .

On DATE ORG rejected the applicant ’s appeal against the judgment of DATE , finding no infringements of procedural or substantive law in the examination of the case . It noted in particular that Mr and PERSON had only heard shots from a shotgun and not shots from a small - bore rifle , and they had confirmed this during the on - site reconstitution . ORG also observed that there had been no serious procedural violations that would require quashing of the judgment . It decided , however , to reduce the applicant ’s sentence to CARDINAL years’ imprisonment , given that the victims had also been acting unlawfully .

On DATE the President of GPE issued a decree granting amnesty to a number of convicted persons , including the applicant , whose sentence was reduced to DATE imprisonment .

Under LAW , the murder of several people was punishable by imprisonment for DATE or by a life sentence .

Article CARDINAL of the ORG , as worded at the time of the initial stage of the investigation , provided that a suspect , accused or defendant was entitled to waive his or her right to defence counsel . Such a waiver was permissible only on the initiative of the suspect , accused or defendant himself or herself . A waiver was not permitted , inter alia , if the possible penalty was a life sentence .

According to paragraph CARDINAL of Article CARDINAL , as worded at the time of the trial , substantial violations of the requirements of the criminal procedural legislation are considered to be those which have impeded or could have impeded the court in the complete and thorough examination of a case and in issuing a lawful , reasoned and just verdict . Paragraph CARDINAL of this Article lists a violation of the right of an accused to defence among the substantial violations of the requirements of the criminal procedural legislation which warrant the quashing of a verdict in any event ( that is , regardless of whether the requirements of paragraph CARDINAL have been met ) .


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

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

The applicant was born in DATE .

On an unspecified date in DATE the ORG lodged a bill of indictment against the applicant and other persons with ORG . The applicant was charged with attempted murder committed in the context of organised crime .

On DATE ORG of the ORG requested the President of that court for the secondment of a judge from the district court , PERSON , to the bench appointed to examine the applicant ’s case . The following dates for hearings to be held were specified in that letter : CARDINAL DATE , and DATE and DATE .

By a letter of the President of ORG , dated DATE , the judge was seconded for the purpose of attending the CARDINAL hearings requested . The letter referred to the agreement of the board of the assembly of ORG judges to the secondment which had been given on an unspecified date .

Subsequently , hearings in the applicant ’s case were held on DATE and then later on DATE , DATE , CARDINAL and DATE , CARDINAL and DATE , CARDINAL May , DATE , DATE and DATE .

By a letter of DATE the President of ORG requested the President of that court to clarify the terms of Judge PERSON ’s secondment , referring to certain doubts as to the time frame within which it was valid . He requested clarification on whether she had been seconded only for the CARDINAL dates specified in the secondment letter of DATE or for the whole examination of the case , until the firstinstance judgment .

In his reply of DATE the President of ORG stated that Judge PERSON had been seconded with effect from DATE until a first - instance judgment was given in the case .

On DATE the President of ORG of the ORG asked the President of that court to second Judge PERSON to the case for a hearing to be held on DATE . His request was granted by the President ’s letter of CARDINAL DATE , specifically referring to that date .

On DATE the President of ORG of the ORG stated in a letter to the President of that court that Judge PERSON ’s original secondment had covered the hearings held on : CARDINAL DATE , CARDINAL and DATE , DATE , DATE , CARDINAL and DATE , DATE and DATE , CARDINAL May , DATE , DATE and DATE .

Subsequently , there was a change of practice concerning the secondment , in that Judge PERSON was seconded by separate letters of CARDINAL and CARDINAL DATE for hearings to be held on QUANTITY DATE respectively .

On DATE the court gave a judgment and found the applicant guilty of attempted murder .

The applicant appealed , complaining essentially about various aspects of the admissibility and assessment of the evidence by the first - instance court .

On DATE the ORG partly upheld and partly amended the contested judgment .

The applicant lodged a cassation appeal with ORG .

In additional pleadings of CARDINAL DATE he raised another ground for appeal . He drew ORG attention to the doubts which had arisen during the proceedings as to the correctness of the procedure concerning the secondment of Judge PERSON , its time frame and its compliance with the requirements of section CARDINAL of the PERSON on the Structure of Courts of Law as to the procedural requirements that a secondment had to meet . He argued that it was necessary to examine whether his case had been examined by a tribunal established by law . He indicated that he could not substantiate this ground with further details based on a closer examination of the case file because it had already been forwarded to ORG .

By a decision of CARDINAL DATE ORG dismissed the appeal . The operative part of the decision read :

“ CARDINAL ) dismisses the cassation appeal as manifestly ill - founded ,

CARDINAL ) holds that the court costs of the cassation proceedings be borne by the appellant . ”

That decision contained no written grounds .

Article QUANTITY of the LAW reads :

“ CARDINAL . Judges shall not be removable .

The removal of a judge from office , suspension from office , or the assigning of a judge to another bench or position against his will may only occur by virtue of a court judgment and only in situations prescribed in a statute . “

Section CARDINAL(CARDINAL ) of the PERSON on the Structure of Courts of Law ( Prawo o ustroju sądów powszechnych ) provides that the Minister of ORG may second a judge to carry out his or her duties in another court . Furthermore , under subsection CARDINAL of that section , the president of a regional court is also empowered to second a judge of a district court to sit on a bench of a regional court for a period not longer than DATE per year , provided that the board of the regional court ’s assembly of judges gives its consent .

Section CARDINAL of that PERSON provides that CARDINAL judge seconded from another court can sit on a bench of a court at any one time .

ORG has examined in a number of judgments the procedural arrangements for the secondment of a judge to sit on the bench of another court .

NORP In its decision of DATE ( I ORG CARDINAL/CARDINAL ) it examined a situation where CARDINAL judges of a district court were promoted to a regional court during proceedings pending before the district court . They continued to participate in the proceedings until the first - instance judgment was given . It held that it had been in breach of section CARDINAL of the PERSON on the Structure of Courts of Law and the prohibition that only one judge seconded from another court could sit on a bench ( see paragraph CARDINAL above ) . A district - court bench comprising CARDINAL judges promoted to a higher court during the proceedings , if formal and individual decisions on their secondment had been given , was not properly composed within the meaning of Article CARDINAL § CARDINAL item CARDINAL of LAW ( see paragraph CARDINAL below ) .

The court observed that the procedural shortcomings listed in LAW breached the fundamental principles of a fair hearing , setting minimal procedural standards for the rule of law in a democratic ORG . If such shortcomings occurred , they always resulted in the judgment on the merits of the case being quashed , regardless of whether they had any influence on the substantive outcome of the proceedings and even where they had not been raised by the appellant . Certain legal writers were of the view that the legislator had put in operation a presumption that such shortcomings always had an impact on the merits of a case .

The court observed that CARDINAL of the fundamental principles of the administration of justice was that a judge was to carry out his or her function in a given court determined in the nomination act issued by the President . However , the laws governing judicial organisation allowed for judges to be assigned to another court with a view to carrying out their judicial duties for limited periods of time and with their consent . For a judge to be able to sit on a bench of another court , at either a higher , lower or the same level of jurisdiction , a formal decision on secondment was necessary . Such a decision was not of a merely organisational character ; it conferred a judicial role on a judge sitting on that bench .

In a resolution of DATE ( I ORG CARDINAL/CARDINAL ) ORG held that a judge could be seconded to sit on a bench of another court either for a period of DATE in DATE , or for DATE , for example , the dates of hearings . It noted that there were discrepancies in the practice . Certain presidents of the courts were of the view that only the first approach was correct , while others maintained that it was also acceptable to second judges for successive hearings in a case examined by another court , held on DATE if their number did not exceed DATE . The court held that it was improper to second a judge without concrete dates indicated in the secondment decision , or merely for the examination of a specified case , if such a secondment did not refer to concrete dates .

In its judgment of DATE ( V KK CARDINAL/CARDINAL ) ORG examined a situation where a judge had obtained secondment for a specified period to sit on a bench of another court and had continued to do so after that period had ended , in the absence of a new decision on his secondment . It held that only a decision to second a judge to another court made it possible for him or her to sit on a bench of another court . In the absence of such a decision the composition of the court had been incorrect , within the meaning of LAW . This procedural shortcoming amounted to a flagrant breach of the minimum standards of a fair hearing ( “ rażąca obraza minimalnego standardu prawidłowego postępowania ” ) . The court referred to the resolution of DATE ( see paragraph CARDINAL above ) .

In a judgment of CARDINAL DATE ( II KK CARDINAL/CARDINAL ) ORG held that the assignment of a judge to another bench did not comply with the applicable legal requirements if the local board of the assembly of judges had given only a blanket agreement for all judges of that court to be seconded to other courts . That agreement had to be given on each and every occasion in respect of an individual judge .

In an interlocutory decision of DATE ( III KO CARDINAL/CARDINAL ) ORG held that a decision on a judge ’s secondment had not been issued correctly if it lacked an indication of the concrete dates of hearings or other measures in which a seconded judge was to participate . It further noted that such a shortcoming did not render the proceedings void within the meaning of LAW . The court reiterated that a judge could not be assigned to a bench of another court for DATE during DATE .

Under LAW ( “ the Code ” ) , which entered into force on DATE , a party to criminal proceedings can lodge an appeal with ORG against any final decision of an appellate court which had terminated criminal proceedings . The relevant part of LAW provides :

“ A cassation appeal may be lodged only on the grounds referred to in LAW [ these include a number of fundamental procedural irregularities , such as incorrect composition of the trial court ; lack of legal assistance in cases where such assistance was compulsory ; breach of the rules governing jurisdiction in criminal matters ; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself , etc . ] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach . A cassation appeal shall not lie against the severity of the penalty imposed ( niewspółmierności kary ) . ”

Article CARDINAL of the Code , in so far as relevant , reads :

“ The appellate court shall , regardless of the scope of the appeal and the grounds raised by the party and regardless of whether the procedural shortcoming has had any impact on the substance of a decision , set a decision aside if : ...

( CARDINAL ) the composition of the court was improper ; ”

Under LAW , LAW is applicable mutatis mutandis in the cassation proceedings .


Preliminary objection dismissed (striking out);Violation of Art. 6;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was born in DATE and lives in GPE .

On DATE ORG of GPE accepted the applicant ’s civil action against ORG of ORG ( hereafter DATE ORG ) and awarded him MONEY ( ORG , approximately CARDINAL ) in pension arrears . The judgment was not appealed against and became final .

Enforcement proceedings were instituted but on DATE the bailiffs returned the writ of execution to the applicant without enforcement because ORG lacked the necessary funds .

On DATE the judgment of CARDINAL DATE was enforced in full .


Remainder inadmissible;Violation of Art. 2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant ’s brother PERSON , who was a NORP citizen of NORP origin , was called up for military service in DATE . He was DATE at the time .

On CARDINAL DATE PERSON started his initial two months’ training in GPE . On DATE he was granted leave for DATE . On his return , he was informed that he had been appointed to GPE . On DATE PERSON went to GPE to join his unit . His superior was Mr ORG .

DATE the applicant received a telephone call from his brother , who stated that he was being bullied by his superior . He told the applicant that he had been threatened with death by ORG .

On DATE the applicant ’s brother was posted to sentry duty . At TIME he was seriously wounded by CARDINAL bullet and he was immediately taken to ORG , where he was operated upon . At TIME DATE , ORG called the applicant and informed him that there had been an accident and his brother had shot himself . The applicant went to GPE immediately . ORG and another soldier took the applicant to hospital . His brother was in the intensive care unit , unconscious . When the applicant asked ORG how the incident had happened , he told the applicant that he had been QUANTITY away from PERSON when he saw him point the gun towards himself and fire . He explained that PERSON had been taken immediately to the hospital where he had been operated upon .

On DATE , the applicant was able to speak to his brother briefly at the hospital . PERSON allegedly told the applicant :

“ I saw ORG approaching and I remembered his death threats . I thought he was going to shoot me . I do not remember what happened but I am sure that I did not shoot myself . ”

The applicant ’s brother told him that he wanted to be transferred to GPE . He also said that he had written a letter and given it to his friend PERSON PERSON , also a conscript .

NORP In the meantime , statements were taken from witnesses to the event , namely from Mr PERSON , Mr PERSON and Mr PERSON .

In his statement PERSON said that after lunch , as he was walking around , he heard a single gun shot . When he went to see what had happened , he saw PERSON lying on the ground , heavily injured . He was mumbling , saying “ you have burnt me PERSON , I am burning , I am in pain ” . PERSON said PERSON rifle was between his knees .

Mr PERSON said that when he heard the shot , he immediately went to the scene of incident . PERSON was lying on the ground . He was alive but heavily bleeding . His rifle was between his legs .

In his statement , PERSON maintained that PERSON had told him that he would commit suicide as the girl whom he was in love with was getting married to someone else . He also said that PERSON had given him a letter to be sent to his parents , should anything happen to him .

DATE , the applicant also spoke to Mr PERSON , who allegedly told him that PERSON had been pressurised by his superior ORG . He told the applicant that the soldiers had been forced not to speak to PERSON and added that PERSON had no bed and was sleeping on the floor . Mr PERSON confirmed that PERSON had given him a letter ; however he explained that somebody had taken it from his bag .

The applicant wanted to transfer his brother to another hospital but the doctors refused . The applicant returned to GPE .

On DATE the applicant ’s brother developed disseminated intravascular coagulation and the doctors decided to transfer him to ORG in GPE . He died from internal bleeding in the ambulance during the transfer .

On DATE the applicant lodged an application with ORG office to clarify the circumstances in which his brother had died . He stated that he doubted that his brother had shot himself and requested an autopsy .

The body examination report , dated DATE , stated the following :

“ A surgical incision measuring QUANTITY begins from the area between the nipples and extends centrally to below the navel . Several old razor wound scars are noted between the left and right shoulders and elbows , measuring QUANTITY each . The name PERSON is carved with a razor or another sharp object on the outer side of the left arm . A bullet exit hole on the left lumbar region measuring QUANTITY is noted . A bullet entry hole was observed in the stitched wound in the chest area ”

NORP The applicant was also present during this body examination . He stated that he had doubts about his brother ’s death and requested a second autopsy .

On DATE ORG conducted an examination of the scene of incident .

On DATE the military investigation board started an investigation into PERSON death . On DATE the board took a statement from ORG . PERSON explained that when he heard that the applicant ’s brother had shot himself , he immediately went to see what had happened and called an ambulance . He saw that there was blood on PERSON abdomen .

On DATE the military investigation board delivered its report and concluded that no fault could be attributed to Mr ORG or the hospital .

In the meantime , on CARDINAL DATE a second autopsy was conducted on PERSON ’s body by ORG of ORG . The report stated that no bullet was found in the body and that the detailed report would be delivered at DATE . Samples of the wound from the xiphoid process and back were sent for further chemical examination .

On DATE ORG delivered its report concerning the chemical examination of these CARDINAL pieces of skin . Large amounts of nitrite - nitrate ions were observed on the piece of skin taken from PERSON ’s back and none was found on the piece of skin taken from the xiphoid process .

On DATE ORG delivered a non - jurisdiction decision and transferred the file to the Gölcük Military Prosecutor .

Upon the request of ORG , on CARDINAL DATE an expert examination was conducted on the hive obtained from the scene of the incident . While conducting the examination , the expert fired CARDINAL further shots using the rifle that had been used by PERSON . On CARDINAL DATE the CARDINAL spent cartridge cases , namely the CARDINAL found following the incident and the CARDINAL obtained by the expert , were examined at ORG and it was concluded that they all came from the same rifle .

On DATE Miss PERSON gave a statement to the gendarmes . When asked about PERSON suicide , Miss PERSON said that she had been friends with PERSON for DATE . She explained that they loved each other and denied that she was engaged to somebody else .

On DATE the applicant gave a statement to ORG . He explained that his brother PERSON had been threatened with death by ORG .

On DATE ORG delivered its medical report . Making reference to its previous examinations dated CARDINAL and DATE , it concluded that PERSON had been shot in the back . According to the report , a bullet had entered his back and exited from the right below the xiphoid process . In order to establish the exact range from which the shot was fired , a further chemical examination of PERSON GPE ’s clothes was requested .

In a report dated DATE the physical ballistics expertise branch stated that no traces of gunfire were found on either the shirt or the vest of PERSON . The reports further concluded that there was a hole in the back part of the shirt , measuring QUANTITY .

On DATE the ORG delivered its final report . In its detailed report , it made reference to all of the previous forensic examinations . It stated that although when bullet entry and exit holes are examined , it is usually the small holes that are ascertained to be entry holes and large holes to be exit holes , it was medically possible for the opposite to be found as well . The report concluded that although the autopsy report dated DATE had stated that the entrance hole had been in the back , as following the chemical examination no nitrite and nitrate ions had been found on PERSON clothes , this should indicate that the bullet must have entered from the xiphoid process . In the report , it was further stated that there was no indication to determine whether the shot had been fired from close range or point blank range . It continued :

“ We unanimously agree that the bullet had entered the body from the lower left part of the xiphoid process , passing through the muscle under the skin into the abdominal cavity , passing slightly to the left , leaving the body from the upper part of the lumber region ; and that because persons move , the route of the bullet through the body can not assist in medically determining the direction from which the bullet had been fired or the height above the ground ”

As a result , in the report , it was unanimously accepted that the bullet had entered from the abdomen .

On DATE ORG decided not to prosecute . The applicant appealed against that decision . On DATE ORG rejected the applicant ’s appeal and this was notified to the applicant on CARDINAL DATE .

On DATE the applicant obtained a medical report from Mr PERSON , a professor of ORG to ORG . After making an analysis of the available documentary evidence , PERSON concluded that the presence of a small circular gunshot wound in the back and a larger gunshot wound in the front of the abdomen was suggestive of the entrance wound being in the back . The presence of nitrate - nitrite ions on the skin taken from the back of the body and their absence on the front would provide confirmatory evidence that the back contained the entrance wound . However , it was also stated that these findings were inconsistent with the fact that no gunshot residue was identified anywhere on the clothing . In sum , Professor PERSON concluded that the evidence supported the theory that the entrance wound was in the back .


The applicant was born in DATE and lives in GPE , LOC .

On DATE the ORG of LOC ( ORG ) allowed the applicant 's claim against the ORG housing authority of ORG ( квартирно-эксплуатационная часть PERSON г.Черняховска ) for provision of accommodation . ORG ordered that the housing authority :

“ ... provide PERSON , whose family comprises CARDINAL member , with another well - equipped dwelling LOC for permanent use having a living surface of no less than established standards of living surface for CARDINAL person ( QUANTITY ) , corresponding to the established sanitary and technical standards and well - equipped in accordance with the standards applied in GPE ... ”

ORG also awarded the applicant MONEY ( RUR ) in respect of non - pecuniary damage .

On DATE the housing authority allocated to the applicant a CARDINAL - room flat . However , she did not accept the flat as it did not meet sanitary standards .

No appeal was brought against the judgment of DATE and it entered into force on DATE .

On DATE the bailiffs ' service of the LOC initiated enforcement proceedings and on DATE the defendant executed the judgment of DATE as regards the compensation for non - pecuniary damage .

A special commission of the housing authority visited the flat allocated to the applicant on DATE and concluded , on DATE , that it was only equipped in part and occupied by another person .

On CARDINAL DATE the housing authority unsuccessfully applied to ORG for the re - opening of the proceedings due to the newly discovered circumstances . They claimed that according to the decision of the Government of GPE of DATE , the housing premises of ORG had been handed over to the local administration . Therefore it was not possible to enforce the judgment of DATE .

On DATE , following the bailiff 's request , ORG noted that the housing authority had handed over to the local administration only some housing LOC . The court ordered the bailiff to establish which LOC were left at the disposal of the housing authority and to provide the applicant with CARDINAL of them .

On DATE and DATE the bailiff fined the Head of the housing authority for the failure to enforce the judgment of DATE .

On DATE the housing authority and the applicant 's representative concluded a social tenancy agreement by which a flat was allocated to the applicant . On DATE the applicant signed a document by which she accepted the proposed accommodation .