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

The applicant is a minister of ORG . He held office as head of division in ORG ( kirkon ulkomaanasiain keskus , kyrkans utrikescentral ) , when ORG ( kirkkohallitus , kyrkostyrelsen ) began disciplinary proceedings and , on DATE , dismissed him from his office for having acted in breach of his official duties . The applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) which , on DATE , rejected the appeal .

The applicant was impeached before ORG ( raastuvanoikeus , rådstuvurätt ) for an offence in office concerning the events that had been the grounds for his dismissal . ORG and ORG ( hovioikeus , hovrätt ) rejected the charges on DATE and DATE , respectively . None of the parties sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) .

On DATE , the applicant requested ORG to annul its decision of DATE and to quash his dismissal from office . On DATE , ORG annulled its aforementioned decision , annulled the decision of ORG of DATE and returned the matter to ORG .

On DATE ORG began to reconsider the disciplinary case and , on DATE , after having received a written statement from the applicant , decided as follows :

“ CARDINAL . ORG decides that the disciplinary proceedings against [ the applicant ] will no longer be pursued and , thus , these proceedings expire ;

the ORG finds that the termination of [ the applicant ’s ] service , which became final on DATE , can no longer be considered as a disciplinary punishment ;

the ORG finds that the office of head of division in ORG has been filled and , therefore , [ the applicant ] can no longer be reinstated in his former office ;

the ORG finds that there is no possibility to offer [ the applicant ] another equivalent office ;

the ORG finds that when it took its decision on DATE , there were weighty grounds as regards [ the applicant ’s ] performance of duties for giving him a notice according to LAW , subsection CARDINAL , points CARDINAL and DATE , of ORG ( kirkon erityistehtävissä olevien viranhaltijain virkasääntö , tjänstestadga för anställda i specialuppgifter inom kyrkan CARDINAL ) ;

the ORG decides to pay [ the applicant ] compensation equivalent to the salary and other benefits of period of notice at the date of the termination of his service , i.e. DATE , with MONEY DATE interest ;

the ORG finds that there is no need to hold an oral hearing , which [ the applicant ] had requested , nor to receive further observations from [ the applicant ] . ”

The above decision did not contain any notice of appeal . On DATE , the applicant ’s lawyer was sent a separate notice of appeal with the instructions referring to the possibility of lodging an appeal with ORG .

On DATE , the applicant appealed against the points DATE to ORG claiming , inter alia , that the continuation of his service as well as his right to be reinstated in his former office or an office equivalent to it be confirmed and that ORG be ordered to indemnify him for his loss of earnings .

In its decision of DATE , ORG firstly stated that ORG was not competent to give the applicant notice and , thus , the applicant ’s service had not been terminated on the basis of a notice . ORG also stated that it lacked competence to decide at first instance questions concerning the applicant ’s status and his right to an indemnity . It added that ORG ( tuomiokapituli , domkapitalet ) would be the competent body in this respect , dismissing the appeal without considering its merits .

On DATE the applicant asked ORG for reinstatement in his former office .

On DATE , the applicant filed an application with ORG ( hiippakunta , stift ) claiming that ORG be ordered to pay him the unpaid salary of a head of division from DATE with CARDINAL per cent DATE interest . He asked for the decision to be made urgently .

On DATE , the ORG sent a letter to the applicant indicating that the ORG ’s answer to the applicant ’s request for reinstatement in his former office was included in its response to ORG on the applicant ’s above - mentioned application .

On DATE , ORG ordered ORG to pay the applicant the difference between the salary of a head of division and the salary the applicant had earned as a parish minister DATE and DATE , and from CARDINAL DATE a certain amount per month ( with interest ) until the applicant recommenced his official duties as head of division or his service was terminated . ORG also stated that the applicant ’s service as head of division must be considered to continue .

On DATE , ORG appealed to ORG against the decision of ORG . On DATE , the applicant appealed against the same decision , as far as the indemnity for loss of earnings and other compensation were concerned . ORG gave its decision on DATE . It upheld the Cathedral Chapter ’s decision , except for the part concerning interest rates and the obligation to pay interest .

On DATE , the applicant appealed to ORG against a decision made by ORG on DATE by which the applicant was given notice of the termination of his service as head of division with CARDINAL months’ period of notice . The applicant asked for the decision to be taken urgently . On DATE ORG gave its decision also in that set of proceedings . ORG upheld the national ORG decision . Its reasoning read as follows :

“ According to LAW , subsection PERCENT , of LAW , a civil servant may be given notice for … particularly weighty grounds concerning his or her performance of official duties . Such grounds may be based on the civil servant ’s performance or on other circumstances in relation to performance of official duties . The office of head of division in ORG has been filled while [ the applicant ] was dismissed . Considering that ORG , at DATE , still was under the impression that [ the applicant ’s ] service as head of division had terminated and considering that ORG can not be obliged to establish a new office equivalent to [ the applicant ’s ] former office , ORG , in these circumstances , finds no reason to change the conclusion reached by ORG . ”

LAW ( kirkkolaki , kyrkolag CARDINAL/CARDINAL , as from DATE replaced by Act no . CARDINAL/CARDINAL ) regulates the activities of ORG . Regulations concerning the civil servants of the ORG are also given in collective agreements on the terms of employment in the civil service ( virkaehtosopimus , tjänstekollektivavtal ) and in official regulations confirmed by ORG , tjänstestadga ) .

According to LAW and LAW , LAW , of the DATE LAW , ORG is the general administrative body of the ORG . Under LAW of the DATE LAW and LAW , LAW ( CARDINAL ) , of the DATE LAW , a decision of ORG can be appealed against to ORG .


NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by Mr M. A. GPE and PERSON NORP GPE , lawyers practising in GPE .

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

NORP Until DATE the applicant lived in PERSON , a village of the GPE district in GPE , where he owns property .

On DATE the inhabitants of ORG were forcibly evicted from their village by security forces on account of the disturbances in the region . The security forces also destroyed the applicant ’s property . The applicant and his family then moved to GPE .

On DATE the applicant lodged a petition with ORG in GPE complaining that his house was burned down by the security forces on DATE .

On DATE the NORP public prosecutor declined jurisdiction and sent the case file to the office of ORG in GPE , in accordance with LAW b ) of Decree no . CARDINAL and the PERSON on the Prosecution of Civil Servants ( Memurin Muhakematı GPE ) .

On DATE ORG sent a letter to the applicant stating that there would not be an investigation into his allegations as the perpetrators of the alleged acts could not be identified . With reference to a letter from GPE of DATE , ORG also noted that no house had been burned down by the security forces in the region .

On DATE the applicant filed petitions with the Governor ’s office in GPE and the GPE office in GPE requesting permission to return to his village .

On DATE the state - of - emergency office attached to the GPE District Governor ’s office stated the following in response to the petition submitted by the applicant :

“ Your petition requesting permission to return to your village has been received by the District Governor ’s office and will be considered under the ‘ Return to Village and Rehabilitation Project’ . ”

The applicant was a resident of GPE . The official records indicated that the inhabitants of ORG had evacuated their village on account of intense terrorist activities in the region and threats issued by the ORG ( Workers’ ORG ) terrorist organisation against the villagers . The security forces had not forced the applicant or his fellow villagers to leave their village .

NORP Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages , as demonstrated by CARDINAL applicants who indicated in their petitions to ORG that their current domiciles were in their respective villages ( see paragraph CARDINAL below ) .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions ( see paragraph CARDINAL below ) . Many villagers had already been awarded compensation for the damage they had sustained ( see paragraphs CARDINAL below ) .

According to this document , at the time of the burning down of his house and the eviction of the inhabitants from GPE , the applicant owned CARDINAL sheep , CARDINAL goats , CARDINAL horse , QUANTITY , CARDINAL TV set , CARDINAL refrigerator , CARDINAL bed and CARDINAL kitchen utensils .

It appears from this document that the applicant owns CARDINAL plots of land in Eğrikavak .

NORP This report was prepared by a commission of inquiry composed of CARDINAL members of parliament . According to the report , in DATE and DATE the inhabitants of CARDINAL villages and CARDINAL hamlets were evicted and forced to move to other regions of the country . The number of people evicted from CARDINAL villages and CARDINAL hamlets in the province of GPE , which includes GPE , was estimated to be around CARDINAL . The detailed content of this report can be found in the ORG ’s judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ECHR CARDINAL ... ) .

This ORG gives a detailed account of the abuses by members of the NORP security forces and urges ORG to take the necessary administrative , judicial and legislative measures to halt human rights violations ( ORG and Others , cited above , § CARDINAL ) .

NORP This report was prepared by a working and monitoring group composed of CARDINAL scholars and experts commissioned by the ORG ( hereafter “ ORG report ” ) . It contains the findings of the working and monitoring group subsequent to field researches they had conducted in ORG , Batman , ORG and GPE . The ORG report examines the problems arising from the implementation of PERSON no . CARDINAL on compensation for losses sustained as a result of terrorism or the fight against terrorism . It also aims to suggest policy proposals to the Government , national and international bodies and NGOs .

According to the ORG report , there are serious problems concerning the return of internally displaced persons ( “ ORG ” ) to their villages . Firstly , IDPs are unable to fund their travel and removal expenses in order to return to their villages from the cities . Secondly , the infrastructure of the villages is not in a good shape . In most villages there is no electricity , water , mains or health services . Thirdly , IDPs still worry about the lack of sufficient security in their former places of residence on account of intimidation by the ORG , military operations and clashes or possible pressure exerted on them by the ORG authorities to agree to become village guards . Finally , non - governmental organisations point to the presence of land mines which cause the death or injury of people living in the region .

The ORG report welcomes the enactment of PERSON no . CARDINAL and considers it a positive step towards redressing the human rights violations caused by the forced displacements . However , it is unclear whether persons who left the country can benefit from the PERSON in question . It appears that the a majority of IDPs misconceive the rights contained in the PERSON . Although PERSON no . CARDINAL provides a remedy for cases of death or injury , most IDPs consider that the PERSON is confined to cases of forced evacuation of villages . Furthermore , since PERSON no . CARDINAL includes the term “ terrorism ” in its title , IDPs generally think that they might be considered terrorists if they lodged an application under the PERSON and complained about the ORG . Some IDPs think that the remedy envisaged by the PERSON falls far short of meeting their needs since it does not offer sufficient compensation and there is no possibility of bringing the perpetrators of unlawful acts to justice . Moreover , PERSON no . CARDINAL does not contain a right to non - pecuniary damages . IDPs therefore prefer to lodge an application with ORG .

As regards the implementation of Law no . CARDINAL , there are CARDINAL major problems . Firstly , the members of the compensation commissions have a very limited margin of appreciation in rendering decisions . Secondly , even if they are in good faith , the members of the compensation commissions , who are civil servants , do not want to take any risks and therefore expect the Government to demonstrate a clear political will in implementing the LAW . Thirdly , some of the commission members seem to be prejudiced towards IDPs , considering them to be opportunists and/or ORG sympathisers who want to misuse the PERSON .

The burden of proof on the victims to prove their claims used to be a major problem . However , subsequent to decision no . DATE of ORG , on DATE , claimants can prove their allegations by means of any information or document .

Concerning the composition of the compensation commissions , it was noted that the majority of their members are civil servants . Accordingly , in the eyes of the victims there are doubts about their independence and impartiality .

It was recommended that the PERSON should stay in force for DATE so that justice can be done and the process of redress achieve its aim .

Consequently , the ORG report makes a number of other recommendations with a view to tackling the problems of the IDPs and to establishing peace and security in south - east GPE .

The documents listed below concern the inability of the administrative and judicial authorities to visit or to conduct on - site inspections in the villages of GPE on account of the lack of security in the area .

The Government claimed that LAW ( “ compensation commissions ” ) established to provide an effective domestic remedy for the grievances of persons who were affected either by terrorism or the acts of the security forces in combating terrorism had become fully functional . In this connection they furnished the ORG with copies of decisions and declarations issued by these bodies with a view to demonstrating the effectiveness of the new remedy offered by ORG resulting from Terrorism and the Fight against Terrorism .

The Government submitted a copy of CARDINAL decisions issued by the compensation commissions set up in GPE and ORG . These decisions exclusively concern awards of compensation to persons who suffered damage as a result of their inability to gain access to their homes and land in villages in the GPE and ORG provinces .

In a decision of CARDINAL DATE ORG awarded compensation to CARDINAL persons . As an example , in the case of ORG GPE ( application no . DATE ) , the compensation commission found that the claimant had been unable togain access to his possessions in GPE of the NORP district in GPE for DATE . Relying on expert opinions , the compensation commission considered that the claimant should be awarded CARDINAL new NORP liras ( ORG ) for damage caused to his immoveable property , LAW for his poplar trees , ORG CARDINAL for his land and fruit trees and YTL CARDINAL for deprivation of income from agriculture for DATE ( QUANTITY CARDINAL = CARDINAL ) . Thus , the compensation commission decided to award the claimant a total amount of YTL CARDINAL ( MONEY ( ORG ) ) to compensate his damage .

In the case of ORG ( application no . DATE ) , the compensation commission awarded the claimant ORG ( approximately LAW ) for the damage he had suffered on account of his inability to gain access to his possessions in GPE . On the basis of the expert opinions and investigations , the compensation commission found that the claimant had sustained damage in the amounts of NORP CARDINAL,CARDINAL for his immoveable property ( house , barn etc . ) and YTL CARDINAL,CARDINAL for deprivation of income from agriculture for DATE ( CARDINAL x CARDINAL = CARDINAL ) . Likewise , in the case of PERSON ( decision of DATE , no . CARDINAL ) ORG awarded the claimant YTL CARDINAL ( approximately EUR CARDINAL,CARDINAL ) for the damage he had suffered as a result of his inability to return to his village since DATE . This amount consisted of compensation of ORG CARDINAL,CARDINAL for the destruction of PERSON PERSON ’s house , YTL CARDINAL,CARDINAL for his barn , YTL CARDINAL,CARDINAL for his inability to cultivate his land , and YTL CARDINAL,CARDINAL for his vineyard . The compensation commission issued similar decisions with similar conclusions in respect of the applications by QUANTITY other claimants . It sent the claimants friendly - settlement declarations specifying the amounts to be paid .

By a decision of CARDINAL DATE ORG no . CARDINAL decided to award LAW ( approximately LAW ) to PERSON , who had been unable to gain access to his possessions since DATE in GPE of the GPE district in GPE . Subsequent to the determination of the damage and the decision to award the aforementioned amount of compensation , the compensation commission sent the claimant a friendly - settlement declaration . ORG issued similar decisions with similar conclusions in respect of CARDINAL other applications lodged by persons who had sustained damage as a result of their inability to gain access to their possessions in villages in GPE .

The Government also submitted a number of decisions issued by the compensation commissions in Şırnak , ORG , Batman and ORG . The subject matter of these decisions is the award of compensation to persons who sustained damage to their property as a result of terrorist acts .

In a decision of DATE ORG decided to award LOC ( approximately LAW ) to PERSON , whose house in GPE village of the PERSON district in Şırnak province had been burned down by a group of terrorists .

In an application lodged by PERSON , PERSON and PERSON , ORG decided to award LAW ( approximately ORG CARDINAL,CARDINAL ) to claimants on account of the damage caused to their fruit trees in the course of an anti - terrorist operation by the security forces in GPE .

As regards the application lodged by PERSON , ORG decided to award ORG CARDINAL ( approximately EUR CARDINAL ) for the death of the claimant ’s cow during a clash between the village guards and ORG terrorists in GPE in GPE .

By a decision of DATE ORG decided to award LAW ( approximately LAW ) to PERSON on account of the burning down of his tractor by members of the ORG in GPE of the Bismil district in GPE .

The compensation commissions also issued a number of decisions awarding compensation to persons who were injured or whose relatives were killed during terror incidents .

As an example , in a decision of DATE ORG decided to award compensation to PERSON , ORG , PERSON , PERSON , PERSON and PERSON on account of the killing of their relatives during terror incidents . The compensation commission awarded a fixed amount of YTL CARDINAL,CARDINAL ( approximately LAW ) to each of the claimants . The claimants all signed the friendly - settlement declarations sent by the compensation commissions .

On DATE ORG decided to award DATE to PERSON on account of the injuries he had suffered as a result of the explosion of a mine . It also awarded YTL CARDINAL,CARDINAL to Alişan Bulut , who was injured and became disabled as a result of a terrorist attack .

The Government submitted a copy of CARDINAL judgments rendered by ORG . In an appeal lodged with the latter court ( decision no . CARDINAL/CARDINAL , on file no . CARDINAL/CARDINAL , DATE ) against the judgment rendered by ORG , the appellant , PERSON PERSON , alleged that he had left his village in the province of Ağrı on account of terror incidents and of the lack of security and that he had suffered damage because he had not been able to use his property since DATE . ORG acceded to his request and overruled the first - instance court ’s judgment . The former court noted that the appellant had left his village owing to the terrorist incidents and not at the request or on the instructions of the authorities . On that account , it considered that , even if the damage sustained by the appellant could not be ascribed to the authorities and though there was no “ causal link ” , the authorities were liable since they had failed to prevent terrorist incidents and maintain security .

ORG delivered judgments with similar conclusions in the cases of ORG and PERSON ( decisions ORG . CARDINAL , on files nos . CARDINAL and CARDINAL , CARDINAL DATE ) .

According to this list , CARDINAL persons , whose applications are pending before the ORG , have also applied to ORG and claimed compensation for the damage they incurred as a result of their inability to gain access to their possessions in their villages . In their petitions to ORG , CARDINAL persons , whose names appear on this list , indicated their addresses as being in their villages .

On DATE Law no . CARDINAL , entitled “ Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism ” ( “ Compensation Law ” ) , was passed by ORG and entered into force on DATE . On DATE ORG enacted Law no . DATE and amended several provisions of the compensation law . This PERSON lays down the principles and procedure for compensating damage sustained by persons as a result of terrorist acts or of measures taken by the authorities to combat terrorism . In particular , it aims to indemnify the material damage sustained by natural or legal persons who have migrated or have been displaced due to terrorism or anti - terrorist activities . It also aims to partially compensate the damage sustained by civil servants who can not be considered as part of the internally displaced population or migrants , but who have been affected by terrorism or by anti - terrorist activities carried out by the security forces .

Section CARDINAL of the Compensation Law reads :

“ The damage to be compensated by this PERSON , through friendly settlement , is as follows :

a ) All types of damage caused to livestock , trees , agricultural products and any moveable or immoveable property ;

b ) Damage resulting from injury , physical disability and death and expenditure incurred for medical treatment and funeral expenses ;

c ) Material damage suffered by those who could not gain access to their property because of the acts carried out within the context of the fight against terrorism . ”

The damage incurred and the compensation payable under section CARDINAL are determined by damage assessment commissions ( “ compensation commissions ” ) . In this connection section CARDINAL provides :

“ Damage assessment commissions shall be established in provinces within DATE from receipt of applications made under this PERSON .

The commission shall be composed of a chairman and CARDINAL members . The chairman of the commission shall be the deputy governor designated by the governor ; and the members shall be appointed by the governor from among the public employees working in that particular province and shall be experts on finance , public works and housing , agriculture and rural affairs , health , industry and commerce ; and a lawyer appointed from among bar members by the relevant bar association .

The commission must be quorate when it convenes and its decisions shall be taken by an absolute majority of the number of participants at the meeting . The working principles and procedures of the commission shall be regulated by a regulation . ”

In accordance with LAW , the compensation ORG duties mainly involve the determination of damage suffered by claimants and the preparation of friendly - settlement declarations ( sulhname ) for payment of compensation to the claimants in cash or in kind . In this respect prior aid received from public funds is deducted from the amount to be paid to the claimants . In case of a disagreement about the terms of the friendlysettlement declaration , the compensation commission prepares a protocol of non - agreement to be sent to the complainant .

Under LAW , anyone who has suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism can lodge an application with the relevant compensation commission claiming compensation . The application must be lodged within DATE of the date on which knowledge was obtained of the incident causing damage and , in any event , within DATE of the impugned incident . The compensation commission must reach a decision within a maximum period of DATE after the application is lodged . Where necessary , this period can be extended by the governor for DATE .

Under LAW , in determining the compensation payable , the compensation commissions will take into account the damage declared by the claimants , the information to be provided by the legal , administrative and military authorities , the circumstances of the incident causing the damage and , if applicable , the negligence of the claimants . In accordance with an amendment introduced by ORG on DATE , the claimants can prove their allegations by means of any information or document . The commissions determine the amount of compensation on the basis of equity and current economic conditions . Expert opinion can also be obtained with a view to determining whether compensation should be awarded .

Under LAW , following the determination of the amount of compensation payable the compensation commission prepares a friendlysettlement declaration and serves it on the claimant in an annex to a letter stating that the claimant must apply to the commission to sign the declaration within DATE of receipt and that failure to appear will be deemed to be a refusal by the claimant , in which case , he or she will have to apply to the courts for compensation . Should the claimant accept the terms of the settlement declaration prepared by the commission , the declaration must be signed by the claimant or his or her representative and by the president of the commission . If the claimant refuses to sign the declaration or is deemed to have refused the terms of the declaration , a protocol of nonagreement must be prepared and sent to the claimant , following which the claimant can bring an action for compensation in the courts .

Section CARDINAL provides that after the parties have signed the friendlysettlement declaration and the governor has approved it , the amount of compensation specified in the friendly - settlement declaration shall be paid within DATE from an appropriation earmarked in the budget of ORG . Following payment of the compensation , the ORG has a right to bring proceedings against the perpetrators of the acts which caused the damage in question .

Finally , Section CARDINAL provides that the compensation commissions are subject to the supervision of ORG and the relevant Governor .

On DATE Regulation no . DATE was issued by ORG for the implementation of Law no . CARDINAL on Compensation for Losses resulting from Terrorism and the Fight against Terrorism . This regulation sets out the duties of the compensation commissions , the procedure to be followed by / before the compensation commissions and the assessment and payment of compensation for damage to life , physical integrity and property .

A description of the further relevant domestic law at the material time and background information can be found in the ORG ’s judgment of ORG and Others ( cited above , § § DATE ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lived until his arrest in GPE .

In DATE the applicant had CARDINAL operations : a retinal laser coagulation of the left eye and amputation of toes of the right foot . In DATE , unsuccessful surgery led to the entire loss of sight in the applicant ’s right eye . DATE , he underwent a kidney transplantation . In DATE he was admitted to ORG no . CARDINAL where he underwent a number of tests and received treatment for diabetes .

In DATE the applicant ’s hip joints were replaced with prostheses in the ORG in GPE . As follows from a letter issued on DATE by the head of ORG , the applicant was required to make multiple DATE visits to the ORG for check ups and medical treatment . The first such appointment was scheduled for DATE .

Extract no . DATE of the applicant ’s medical record drawn up on DATE by a medical commission in ORG no . CARDINAL reads as follows :

“ [ The applicant ] ... is a disabled person [ officially recognised as having a ] CARDINALst degree disability ; [ he ] underwent inpatient treatment from DATE .

Clinical diagnosis : subcompensated type CARDINAL insular diabetes , severe state . Diabetic micro- and macroangiopathy . Diabetic glomerulosclerosis . End stage chronic renal failure , terminal stage .

Diabetic retinopathy of both eyes ; retinal detachment of the right eye . Dysmetabolic encephalopathy . PERSON . Myelotoxic anaemia . PERSON . ORG . Diabetic foot . Condition after amputation of the CARDINALth and CARDINALth toes on the right foot . Allotransplantation of a donor kidney ( DATE ) . Permanent immunosuppression therapy . Osteochondritis deformans juvenilis of hips . Condition after total hip replacement . Acute respiratory disease .

Because of his main illness and associated complications , the state of the patient ’s health is serious ...

The patient was informed about the seriousness of his condition and was warned that if he failed to comply with the strict fluid balance , diet , mandatory lab control , [ and in the absence of ] strict and regular use of medicines ( particularly the immunosuppressive drugs ) kidney transplant rejection and diabetes could occur . ”

On DATE the ORG of ORG instituted criminal proceedings against the applicant on suspicion of involuntary manslaughter .

DATE , the applicant was arrested . According to the prosecution authorities , on DATE in a local restaurant the applicant , a prominent criminal leader , organised an assault in which CARDINAL individuals were severely injured . CARDINAL of the victims died as a result .

On DATE the applicant ’s detention on remand was authorised and he was placed in temporary detention facility no . CARDINAL in GPE . The facility occupied the ground and last floors of a QUANTITY building constructed in DATE . The administrative offices and technical facilities were located on the ground floor of the building while the cells were located on the fourth floor . The building was not equipped with a lift .

On the applicant ’s admission , the acting director of the facility issued a report allowing the applicant to have a number of objects usually prohibited for detainees . The list included a wheelchair , a glucometer , a tonometer , specific medicines , disposable masks , napkins , an additional mattress and a cushion for the wheelchair .

DATE the applicant was charged with having organised aggravated involuntary manslaughter .

On DATE the applicant ’s lawyers lodged a request with a senior investigator of ORG , asking for the applicant to be transferred to a specialised prison medical facility and to have him examined by a number of medical specialists practising in LOC . They alleged that the detention facility was unequipped to accommodate the applicant ’s needs . In support of their request the lawyers relied on medical certificates issued prior to the applicant ’s arrest and argued that the applicant was a seriously ill person whose state of health was bound to deteriorate drastically in the conditions of the detention facility .

NORP The investigator dismissed the request on DATE , finding that prison doctors had examined the applicant on his admission to temporary detention facility no . CARDINAL and had found him fit to be detained in a regular detention facility and to participate in investigative procedures . The investigator also stressed that the applicant was under constant medical supervision by prison doctors and that he received medical advice from other qualified and experienced medical specialists . According to the investigator , the applicant received the medicines necessary to maintain his health .

On DATE the head of ORG ( hereinafter DATE the Centre ) , assisted by another doctor from the FAC , examined the applicant . They found that , in addition to the illnesses listed in extract no . DATE drawn up on DATE , the applicant suffered from gonarthrosis , cardiac dropsy , secondary hyperparathyroidism , hyperuricaemia , hypercholesteremia , viral hepatitis type C and chronic cytomegalovirus [ salivary gland virus ] infection . The doctors also concluded that the applicant ’s diabetes was in the decompensation phase . They laid down a long list of recommendations to be followed , medical tests and examinations to be performed and drug regimens to be complied with , indicating , inter alia , the frequency and dosage of each medicine prescribed to the applicant .

In DATE the applicant ’s lawyers , relying on extensive medical evidence , including extract no . DATE from the applicant ’s medical history , complained to ORG about the investigator ’s refusal to admit the applicant to a prison hospital . On DATE the lawyers amended their claims , citing paragraph CARDINAL of Decree no . CARDINAL issued by ORG of GPE on DATE , by virtue of which individuals suffering from diabetes whose CARDINAL dose of insulin exceeds CARDINAL units may be relieved from serving sentences in correctional institutions . The counsel argued that the applicant ’s CARDINAL-hour regimen required CARDINAL insulin units and therefore his detention in a regular detention facility ran contrary to the domestic legal requirements .

The applicant ’s medical history , submitted by the Government , shows that on DATE he refused to submit to blood glucose level testing and to take TIME dose of prescribed medicines , including insulin , arguing that his treatment was inadequate . DATE the applicant occasionally refused to take an increased dosage of medicines , complaining about side - effects such as nausea and fatigue .

On DATE a medical assistant of temporary detention facility no . CARDINAL issued a medical certificate describing the applicant ’s health . The relevant part of the certificate read as follows :

“ [ The applicant ] does not have any complaints at the time of the examination .

Objective examination data : At the time of the examination [ the applicant ’s ] state of health is satisfactory [ and ] corresponds to his existing illnesses ...

Diagnosis : subcompensated type CARDINAL insular diabetes ; serious condition ; [ the applicant is receiving ] insulinotherapy . Allotransplantation of a donor kidney ( DATE ) .

Conclusion : no restrictions to [ the applicant ’s ] detention in temporary detention facility ... ”

The applicant submitted that no medical tests or analyses had been performed during the examination on DATE . A simple observation by “ QUANTITY women wearing white coats ” had resulted in a finding that his illnesses were not an obstacle to his detention in the detention facility .

On DATE the ORG of Krasnodar dismissed the ORG complaint , repeating verbatim the text of the investigator ’s decision of CARDINAL DATE . In addition , ORG noted that a medical commission had confirmed the applicant ’s diagnoses but noted that he did not need urgent medical assistance and that his state of health did not preclude his participation in investigative procedures . ORG concluded that the applicant could be effectively provided with medical assistance and treatment in the temporary detention facility .

NORP The applicant ’s lawyers appealed .

On DATE the applicant went on a hunger strike and refused to take his medicines , notifying the authorities that the hunger strike was his last attempt to draw their attention to his situation . DATE the applicant ’s lawyers asked a senior prosecution investigator to authorise a complex medical examination of the applicant by specialists of ORG and to transfer him to a prison hospital . Similar requests were sent by those lawyers to various domestic authorities . The lawyers also complained about the conditions of the applicant ’s detention , in particular the absence of DATE outdoor recreation and physical exercise due to the impossibility for the applicant to descend in his wheelchair from the fourth floor of the detention facility , where his cell was , to a recreation yard .

As follows from the applicant ’s medical record , on DATE he resumed taking the prescribed medicines and stopped his hunger strike . CARDINAL DATE the applicant again refused to take his medicines , complaining of a rapid deterioration in his health and an absence of adequate medical attention .

On DATE ORG upheld the decision of CARDINAL DATE , endorsing ORG reasoning .

DATE a medical commission comprising medical specialists of the detention facility and doctors from the ORG examined the applicant and issued the following report :

“ Having studied the health complaints , the medical history , objective data and results of the medical examination ... , the commission is bound to confirm that [ the applicant ’s ] kidney transplant has been rejected as a result of his refusal to take prescribed immunosuppressants .

The commission ’s attention was drawn to the fact that despite numerous discussions about the consequences of such a refusal , [ the applicant ] firmly continued refusing to take the above - mentioned medicines . He also stated that he would refuse any treatment provided in detention facility no . CARDINAL in respect of any complications arising from his refusal [ to take the medicines ] .

[ The applicant ] stated that he had refused to take medicines prescribed by the doctors from the Centre because he considered that he had not received effective medical assistance in respect of his complaints about toothache , pain in the area of his hip replacements and problems with his eyes .

In an efficient manner , [ the applicant ] was once again informed that the deterioration of his health was entirely due to his intentional refusal to take the medicines ( immunosuppressants ) prescribed by the specialists from the ORG and did not result from any other illnesses .

The commission ’s conclusion is as follows :

The final diagnosis is :

Type CARDINAL insulin diabetes in an advanced form , [ the patient is receiving ] insulinotherapy . Diabetic nephropathy , nephroangiosclerosis , chronic renal failure [ in the end stage ] , condition after the donor kidney transplant ( DATE ) . Kidney transplant rejection crisis on DATE caused by an intentional refusal to take immunosuppressants .

Diabetic proliferative retinopathy , condition after surgery on the retinal detachment of the right eye , partial massive hematopsia of the left eye , condition following laser coagulation of the left eye .

Diabetic angiopathy of the vessels of the lower extremities , diabetic foot , condition following the amputation of the fourth and fifth toes of the right foot .

Condition following complete hip replacement ( DATE ) .

Morbid obesity ( extreme condition ) .

It is imperative that [ the patient ] starts undergoing outpatient haemodialysis and resumes taking the necessary medicines , in particular , immunosuppressants .

[ The applicant ] was offered an outpatient course of the haemodialysis which is to be administered by specialists from the ORG with special medical equipment in [ detention facility ] no . CARDINAL . He was also notified that his refusal to take [ medicines ] , irrespective of his decision to undergo haemodialysis , would lead to a full rejection of the transplant .

Following this discussion [ the applicant ] gave his firm consent to undergo haemodialysis [ and ] a subclavian insertion and to take medicines in accordance with the course of immunosuppressants prescribed .

Due to the fact that [ the applicant ’s ] eyesight is very poor , a text of the document confirming his consent to undergo haemodialysis [ and ] a subclavian insertion and to take medicines in accordance with the course of immunosuppressant treatment prescribed was prepared and read out in the presence of the members of the commission and was signed by [ the applicant ] . ”

On DATE the applicant had his first session of haemodialysis which was performed in a specially equipped room on the ground floor of facility no . CARDINAL . The haemodialysis was carried out by specialists from the FAC , as the prison doctors were not licensed to perform the procedure . According to medical documents provided by the Government , the applicant received haemodialysis at least once DATE , with each session lasting from TIME . Prison medical personnel examined the applicant DATE , recording his blood pressure , body temperature and blood glucose level , monitoring the fluctuation of his body weight ( QUANTITY ) , controlling his intake of insulin , adjusting the drug regimen to meet his needs , and so on .

The medical documents show that the applicant frequently underwent various X - ray exams and ultrasound scans , and was taken to the ORG and a civil hospital for clinical testing and examinations by various medical specialists . He also underwent a number of minor operations involving insertion and replacement of catheters and endured lengthy procedures , lasting for TIME at a time , required to administer medicines intravenously . The medical personnel of the detention facility consulted specialists from the FAC on a DATE basis , including its head , for advice on adjusting the applicant ’s treatment to the changes in the state of his health and to his complaints .

In the meantime , on DATE ORG extended the applicant ’s detention until DATE , having considered that the gravity of the charges , as well as the applicant ’s liability to abscond , re - offend and obstruct justice warranted such an extension . On DATE his detention was extended for DATE , until DATE , with ORG using identical reasoning to that in its decision of DATE . The detention order of CARDINAL DATE became final on DATE when ORG concluded that ORG had correctly linked the applicant ’s liability to abscond and interfere with the investigation to the gravity and the character of the charges against him .

On DATE ORG again extended the applicant ’s detention for DATE , finding that the gravity of the charges against him , information about his personal history and his liability to abscond warranted the extension . Having heard a prison doctor and studied medical certificates issued by the medical personnel of the detention facility , ORG also found that the applicant ’s state of health was stable and did not preclude his detention in the temporary detention facility . The decision was upheld on appeal on CARDINAL DATE .

On DATE the applicant ’s scheduled haemodialysis session was interrupted due to the breakdown of the catheter . The catheter could not be replaced until DATE , when haemodialysis was resumed . On DATE an ophthalmologist from the microsurgical department of ORG , having examined the applicant and studied his medical history , found that given the deterioration of the applicant ’s eyesight surgery had no prospects of success .

On DATE ORG examined an investigator ’s request for a further extension of the applicant ’s detention until DATE . Having accepted the investigator ’s request , ORG ruled as follows :

“ [ The applicant ] organised a particularly serious criminal offence , as a result of which [ the ] victim ... died and serious health damage was caused to PERSON and PERSON

Following an examination of [ the applicant ’s ] personal history , it was established that on DATE ORG had found him guilty of criminal offences proscribed by LAW and LAW ; the record of the criminal conviction had expired ; previously [ he ] had been charged on a number of occasions with having committed criminal offences proscribed by LAW [ and ] LAW ; he was absolved from criminal responsibility on the basis of amnesty acts .

Taking into account the information pertaining to [ the applicant ’s ] personal history and having regard to the serious nature of the criminal offence committed by [ the applicant ] , the investigation rightfully considers that , if released , [ the applicant ] will take active steps to influence witnesses , victims and other parties to the criminal proceedings , and that [ he ] will destroy evidence or , by other means , obstruct the objective investigation in the case . Moreover , [ the applicant ] may flee the territory of GPE to avoid criminal responsibility , rendering his criminal prosecution impossible .

In this connection , the investigator concluded that there were no grounds to change the preventive measure [ applied to the applicant ] to CARDINAL which did not involve him being isolated from society and being detained ...

The defence lawyers and [ the applicant ] argued against the investigator ’s request . [ They ] considered that the investigation had not put forward any item of evidence showing that [ the applicant ] could influence the witnesses and victims or [ that he ] could obstruct the investigation in any other way . [ They ] asked to take into account the impossibility for [ the applicant ] to continue being detained as he was very ill and relied on a wheelchair for mobility . He had a kidney transplant which functioned poorly and underwent haemodialysis CARDINAL times a week . [ They ] asked for the applicant to be provided with adequate medical assistance in a medical facility under ORG supervision .

Having studied the material presented [ and ] having heard the parties to the proceedings , the court finds that it is necessary to extend [ the applicant ’s ] detention as [ the applicant ] is charged with having organised a particularly serious criminal offence , there is sufficient information to conclude that , if released , he may abscond during the investigation and trial or [ he ] may obstruct the criminal proceedings by other means . The investigator has still to perform a number of investigative procedures in the case .

history of the accused , who has been criminally charged before [ and ] who is the breadwinner for a minor child , confirm the court ’s conclusion that it is impossible to change the preventive measure [ applied to the applicant ] to a more lenient one . The court is of the opinion that detention is the sole preventive measure corresponding to the requirements of the criminal proceedings and ensuring the thoroughness and objectivity of the pre - trial investigation having regard to the particular seriousness of the criminal offence committed by [ the applicant ] .

The court was not provided with material evidence showing the presence of extenuating circumstances which could have been taken into account by the court when it determined the issue of the extension of [ the applicant ’s ] detention . ”

On DATE the head of the FAC examined the applicant and issued the following conclusion : “ [ his ] condition corresponds to the severity of the main and concomitant illnesses , in general [ it ] is stable and relatively satisfactory ” .

The applicant ’s lawyer requested a senior investigator of ORG to transfer the applicant to a prison hospital , arguing that his health had continued to deteriorate in the absence of adequate medical assistance . DATE the senior investigator dismissed the request , stating that the deterioration of the applicant ’s health was the direct result of his refusal to accept medical assistance and to follow the recommendations given by the medical personnel of the detention facility . The senior investigator also noted that the current state of the applicant ’s health was stable and did not call for his admission to a prison hospital .

Having decided to obtain an independent expert opinion on the applicant ’s state of health , his lawyers submitted available medical records , including those drawn up in the detention facility , to the ORG - owned ORG and ORG in GPE ( hereinafter DATE ORG ) .

On DATE they received a letter from the head of the Kidney and Liver Transplants Department of the Institute , which , in so far as relevant , read as follows :

“ ... it is impossible to make a firm conclusion about [ the applicant ’s ] state of health on the basis of the medical documents presented . However , it is plainly evident that at the present time the kidney transplant is not functioning and the patient ’s life is supported by the haemodialysis prescribed . The non - functioning transplant may have to be removed if it is a source of intoxication . Another kidney transplantation is not warranted . Having regard to the severity of the [ applicant ’s ] primary and corresponding illnesses , the presence of the non - functioning transplant , and [ the applicant ’s ] detention in the temporary detention facility in the absence of adequate clinical instrumental laboratory control , there is a real risk that acute complications leading to [ the applicant ’s ] death will develop . A full examination , preferably in a hospital , is advisable to determine the further course of medical treatment to be taken , namely , the provision of medicines and potential surgery . ”

On DATE the ORG authorised a further extension of the applicant ’s detention until DATE , finding that the grounds warranting his detention , including the gravity of the charges and the applicant ’s liability to abscond , had not changed . ORG concluded that the defence lawyers’ arguments pertaining to the applicant ’s health did not outweigh the grounds calling for his detention .

On DATE ORG examined the ORG requests for the applicant ’s release and for his transfer to a medical institution respectively . Both requests were dismissed as ORG considered that the applicant was receiving sufficient medical assistance in detention facility no . CARDINAL . A similar request for the applicant ’s placement in a prison hospital was dismissed by the senior investigator on DATE .

In the meantime , on DATE the applicant was examined by a cardiologist and a phlebologist from civil hospitals . He was diagnosed with ischemic heart disease , diabetic angiopathy and thrombosis of the lower extremities . Treatment was prescribed . DATE the applicant again experienced problems with the intravenous catheter , making it impossible for him to complete the haemodialysis scheduled for DATE . In DATE , urgent consultations between the medical personnel of the detention facility and specialists from the ORG took place for the purpose of finding a solution to the problem . On DATE CARDINAL leading medical experts from the ORG and a civil hospital performed surgery on the applicant in the detention facility with a view to installing QUANTITY central vein catheter . Following a number of unsuccessful attempts , the doctors were finally able to insert it . DATE the applicant refused to undergo haemodialysis , complaining of pain in the area of the catheter insertion and extreme fatigue and weakness . On DATE , given the serious deterioration of his health , the applicant agreed to go down to the ground floor to undergo haemodialysis .

The applicant ’s medical records show that whenever his catheter malfunctioned and was replaced , he was provided with a course of antibiotics to prevent infection .

On DATE a prison physician examined the applicant and issued a medical certificate describing his state of health . The relevant part of the certificate reads as follows :

“ Since the beginning of his detention in [ detention facility no . CARDINAL ] the patient has been under constant medical supervision ; the level of glucose in his blood ( before every meal ) , blood pressure , fluid balance , body temperature and other indicators are monitored DATE . An examination of all the relevant biochemical blood parameters , including at cyclosporine level , and all additional medical examinations authorised by medical specialists ( ultrasound scanning of the heart , vessels , abdominal cavity , kidneys ... , adrenal glands , bladder and prostate ; X - ray examinations of the chest and hip joints , and electrocardiogram ) are performed whenever necessary , but no less than once DATE . On a number of occasions the patient has been examined by medical specialists ( an endocrinologist , a urologist , a surgeon , a traumatologist - orthopaedist , an ophthalmologist , a vascular surgeon and a cardiologist ) from municipal health institutions .

The patient is under ongoing supervision by doctors from ORG , who perform scheduled outpatient haemodialysis CARDINAL or , if necessary , CARDINAL times a week . On a number of occasions [ the applicant ] was examined by a specialist in kidney transplantology – Professor Ya . , Doctor of Medicine , in the detention facility ; [ Dr Ya . ] is also constantly informed of the results of the clinical supervision , and of complex biochemical and other examinations . Medical specialists regularly organise consultations with PERSON . ’s participation ( the most recent one [ took place ] on DATE ) ; the course of future medical treatment and necessary diagnostic measures are determined during [ those consultations ] .

The patient is also under constant supervision by an endocrinologist ; the level of glucose in his blood is measured DATE before every meal ; a log is kept of the dosage of glycaemia [ and ] insulin [ he receives ] ; [ and ] consultations about the insulin dosage regimen take place .

During his detention in [ detention facility no . CARDINAL ] [ the applicant ] constantly violated his dietary regimen [ and ] refused to keep a “ dietary diary ” ; on a number of occasions [ he ] refused to take insulin and medicines ; after DATE he completely refused to take immunosuppressive medicines , which are necessary for his kidney transplant to function . [ The applicant ] willingly and knowingly impaired his health , despite regular discussions about the necessity of renewing the course of the immunosuppressive medicines and the patient ’s awareness of the consequences of his refusal of the treatment ... As a result of those actions [ the patient ’s ] kidney transplant stopped functioning and since DATE [ he ] has been undergoing permanent haemodialysis , despite the fact that he has resumed taking medicines and begun complying with the [ recommended ] dietary regime .

The haemodialysis is performed by specialists of ORG in a special cell in [ detention facility no . CARDINAL ] . [ The applicant ] is afforded an opportunity to rest for the necessary period of time in a special armchair after each scheduled session of haemodialysis . After the glucose level in his blood has been checked ... , with the warders’ help and in the presence of a medical specialist [ the applicant ] ascends a staircase to his cell with the wheelchair .

When ascending the staircase in small steps being held by the arms , [ the applicant ] rests in his wheelchair after every CARDINAL or CARDINAL flights of stairs for as long as necessary . If necessary , the above - mentioned parameters are measured . On the upper floor of the detention facility building [ the applicant ] is taken to his cell in the wheelchair , where he is examined by medical personnel if necessary .

Medical specialists – an endocrinologist , ophthalmologist , traumatologist - orthopaedist , vascular surgeon and specialists of the Nephrological Centre – consider that at the present time the patient ’s health is stable , despite his existing serious chronic illness . [ The applicant ’s ] health does not at present call for urgent medical assistance or inpatient treatment . The necessary medical and diagnostic procedures prescribed by medical specialists are performed in corpore and timeously .

Therefore , the deterioration of [ the applicant ’s ] health was entirely caused by his willing and knowing actions . The administration of the detention facility and the medical unit of the detention facility , with the participation of medical specialists in the fields connected to [ the applicant ’s ] illnesses , implemented an entire set of medical measures necessary to maintain [ the applicant ’s ] health and to eliminate the consequences of his wilful actions . As a result of those measures [ the applicant ’s ] state of health is stable and does not preclude his detention in [ detention facility no . CARDINAL ] . ”

In DATE and DATE the applicant received haemodialysis at least once DATE . On DATE a surgeon was called in to examine the applicant in response to his complaints of severe pain in the right knee , which intensified during physical activity . The applicant was diagnosed with degenerative arthritis of the right knee joint and prescribed treatment . On DATE he underwent another replacement of the catheter in the detention facility . Another replacement was carried out in the detention facility DATE .

NORP In the meantime , in DATE the prosecution authorities closed the investigation and transferred the case file to the trial court . On DATE ORG scheduled the first trial hearing and held that the trial proceedings were to be conducted in camera because the applicant and his CARDINAL co - defendants had criminal records and were liable to threaten witnesses and other parties to the proceedings . ORG also examined the lawyer ’s petition for the applicant ’s release and dismissed it , finding that the applicant ’s health did not preclude his detention on remand and concluding that “ the preventive measure applied in respect of [ the applicant ] should remain unchanged ” . However , it agreed to call CARDINAL medical experts proposed by the defence to determine whether the applicant was in need of a complex medical examination or any specific medical procedures .

The applicant ’s lawyers appealed , arguing that the applicant ’s detention after DATE had been unlawful , as ORG had failed to extend his detention officially and its decision to dismiss the request for the applicant ’s release could not substitute a proper detention order .

At the hearing on DATE the lawyers again asked ORG to release the applicant as there were no grounds for his continued detention . They also argued that the time - limit for the applicant ’s detention had expired on DATE and that his detention after that date had been unlawful as it was not covered by a proper legal order . A prosecutor lodged a counter - claim , asking to extend the applicant ’s and his co - defendants’ detention until DATE . ORG accepted the prosecutor ’s request and collectively extended the applicant ’s and his co - defendants’ detention until DATE , noting that there were no grounds for their release .

On DATE ORG upheld the decision of DATE , having dismissed the argument that the applicant ’s detention DATE had been unlawful . While acknowledging that on DATE ORG had examined the matter at the applicant ’s lawyer ’s request , ORG reasoned that the examination constituted a de facto extension of the detention .

On DATE ORG found the applicant guilty as charged and sentenced him to TIME years’ imprisonment .

As follows from the applicant ’s medical history submitted by the Government , since DATE the applicant has fully complied with the prescribed course of drug treatment and has occasionally failed to adhere to the dietary recommendations of the prison ’s medical specialists . He occasionally refused to submit to examinations by medical specialists from the LOC and civil hospitals , citing extreme weakness , fatigue and his poor state of health as reasons for those refusals . In DATE the amount of haemodialysis was intensified , becoming a daily procedure . As follows from the applicant ’s medical history , DATE when he did not have haemodialysis were DATE on which trial hearings took place . In DATE the applicant was examined by a surgeon , an ophthalmologist , a urologist and an endocrinologist , who , having confirmed the previous diagnosis and having noted no major changes in the applicant ’s state of health , concluded that it did not preclude his detention in facility no . CARDINAL .

According to the Government , since DATE of his detention the applicant had lodged CARDINAL complaints with the director of the detention facility concerning the conditions of his detention and quality of medical care . He had also lodged numerous similar complaints with various ORG authorities , including the ORG offices and ORG . In particular , the Government provided a copy of the applicant ’s complaint of CARDINAL DATE in which he informed the director of his refusal to continue haemodialysis in view of his inability to continue to endure the “ inhuman treatment ” accompanying that procedure . He asked to notify his relatives of his wish to be buried in GPE . The complaint bears a handwritten note by the facility director stating that a discussion with the applicant had resulted in his consent to go on with the treatment . The applicant ’s repeated complaints to the facility director regarding his inability to descend the stairs for his haemodialysis sessions either resulted in the applicant agreeing to continue the haemodialysis or the director ’s promise to consult engineers on the subject of equipping the facility with a mechanism which would allow the applicant to descend and ascend the stairs more easily . CARDINAL of the applicant ’s complaints to ORG authorities brought a response from ORG for ORG . By a letter of CARDINAL DATE the acting director of the service informed the applicant that “ the performance of ... haemodialysis either in a temporary detention facility or in a correctional colony does not have any legal basis ” .

Another certificate provided by the ORG shows that during the entire period of the applicant ’s detention he was taken for a walk in the recreation yard of the facility twice : on CARDINAL and DATE . The Government alleged that the applicant had consistently refused to leave the cell to be taken for a walk .

The applicant provided the ORG with an expert report issued on CARDINAL DATE by CARDINAL leading forensic medical experts . Having studied his complete medical history , the experts concluded as follows :

“ ... as a result of his main illness ( insular diabetes ) [ the applicant ’s ] central nervous system , cardiovascular system , visual organs , kidneys , stomach [ and ] thyroid body were damaged .

Progress of type - CARDINAL insular diabetes is , usually , gradual ; [ however , it becomes ] more rapid if stress or other illnesses are present ...

[ The applicant ’s ] body movement is restricted as he suffers from osteochondrosis of the whirl bones and has undergone a complete hip replacement .

[ The applicant ’s ] hepatitis C ... and chronic PERSON ’s syndrome substantially aggravate his main illness .

... the severity of the [ applicant ’s ] main and concomitant illnesses , his non - functioning renal transplant , and his detention in facility no . CARDINAL in the absence of proper clinical , instrumental and laboratory supervision make the risk of development of lethal complications very real .

The fact that [ the applicant ] suffers from the listed illnesses leads to the conclusion that he is in need of constant supervision and treatment by medical specialists which could only be provided in specific hospitals ...

It is virtually impossible for [ the applicant ] to receive the required [ medical care ] in the conditions of detention facility no . CARDINAL ...

Type - CARDINAL insular diabetes and chronic renal failure in the terminal stage , from which [ the applicant ] suffers , are included in the List of Illnesses Precluding [ a detainee ] from Serving a Sentence , as adopted by Decree no . CARDINAL on DATE by ORG of GPE . ”

The experts were also under impression that the medical personnel caring for the applicant had “ deliberately understated the seriousness of [ his ] condition and [ had ] deliberately amended [ the ] diagnosis previously confirmed by specialised clinical medical facilities ” .

DATE . On DATE the applicant was sent to serve his sentence in correctional colony no . CARDINAL in GPE . On arrival at the colony he was immediately admitted to the prison hospital . However , DATE , given the assessment of his state of health by the prison doctors , the applicant was transferred to the resuscitation department of the AleksandroMariinskiy Regional Clinical Hospital where he started receiving daily haemodialysis and extensive insulin and immunosuppressive therapy . Having examined the applicant on DATE the medical commission , comprising a number of medical specialists , including those from the colony hospital , issued a report which , in its relevant part , read as follows :

“ The general condition of the patient is serious ...

The patient suffers from obesity of the third degree – he weighs QUANTITY ; it is clearly insufficient to [ treat him ] with haemodialysis as an out - patient CARDINAL times a week ; on DATE when haemodialysis is not performed [ the applicant ] suffers from excessive hydration , hyperpotassemia , and increasing uremic intoxication , which can only be treated with haemodialysis in the conditions of a resuscitation department in a hospital . Given the severity of his main illness , [ the applicant ’s ] excessive body weight ( insufficient haemodialysis ) haemodialysis often has to be performed urgently outside the schedule ... in the conditions of the resuscitation department . The most appropriate schedule [ for the applicant ] is DATE haemodialysis in the resuscitation unit . The presence of a non - functioning transplant requires regular instrumental control ( ultrasound exams ... ) , examinations by a transplantologist , adjustment of dosage of immunosupressants , [ and ] a well - timed decision concerning the removal of the transplant . The presence of the haemodialytic catheter in the external jugular vein requires constant care with the aim of preventing infection and thrombosis of the lifesupporting vascular access for haemodialysis . Given the fact that [ the applicant ] underwent a complete hip replacement with an endoprosthesis he is unable to move without assistance and to care for himself which , in its turn , requires that [ the applicant ] should be permanently assisted by carers . ”

The commission ’s conclusion was that the applicant was suffering from illnesses which should preclude his serving the sentence , as declared by the Government ’s Decree no . CARDINAL of DATE .

The colony director applied to ORG of GPE seeking the applicant ’s release given his inability to serve the remaining part of his sentence . The director ’s request was supported by the medical personnel of the colony hospital , the head of the FAC and the head of the endocrinology department of the Aleksandro - Mariinskiy Regional Clinical Hospital . The doctors argued in open court that the applicant could not stay in the colony and should be permanently admitted to a hospital for life - supporting therapy .

On DATE ORG dismissed the request for release , having found that the applicant ’s health problems partly resulted from his own careless decisions not to take medicines on certain occasions . The ORG also took into account that the applicant was receiving full medical assistance and that he had only served a DATE and a CARDINAL of his long - term sentence .

NORP law does not contain specific rules or requirements regulating the detention of disabled individuals , including wheelchair - bound detainees .

The relevant provisions of the domestic and international law on general health care of detainees are set out in the following judgments : PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , DATE ; and GPE v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § DATE , DATE .

The NORP legal regulations of detention matters are explained in the judgment of PERSON v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , DATE .

The Government ’s Decree no . CARDINAL of DATE regulates medical examinations of convicts eligible for an early release in view of their state of health . The same Decree contains a list of illnesses that preclude a convict from serving the sentence . In particular , the Decree indicates that individuals suffering from a grave form of diabetes whose TIME dose of insulin exceeds CARDINAL units may be relieved from serving sentences in correctional institutions ( § CARDINAL ) .


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

The first applicant , Mr PERSON , was born in DATE . The second applicant , Mr PERSON , was born in DATE . The applicants , who are NORP nationals and brothers , both live in NORP . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , PERSON , of ORG .

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

On DATE ORG issued an arrest warrant against the applicants . It found that the applicants were suspected of having infiltrated NORP nationals into GPE or other ORG in exchange for money on several occasions . They were likely to abscond if not taken into detention , in particular as they risked being sentenced to a considerable term of imprisonment .

On DATE the applicants were arrested and taken into pre - trial detention .

On DATE ORG admitted the indictment dated DATE and ordered the ORG continued detention . The applicants were notably charged with having infiltrated NORP nationals into GPE and GPE on CARDINAL occasions , acting as members of a gang on CARDINAL of these occasions .

On DATE ORG opened the trial against the applicants , who were represented by CARDINAL officially appointed defence counsel each . It subsequently held hearings on average once per week .

On DATE ORG issued a new detention order against the first applicant , taking into account that a number of charges against him had been dropped in the course of the main hearing . It confirmed that order on DATE on the first applicant ’s appeal . The first applicant was now charged , in particular , with having infiltrated or having attempted to infiltrate foreigners into GPE or other countries of LOC on a commercial basis on QUANTITY occasions , while acting as a member of a gang on CARDINAL of these occasions . ORG found that the first applicant was strongly suspected of having committed these offences on account of the contents of telephone conversations intercepted on judicial order and on account of the testimonies of CARDINAL witnesses heard until then in court . He was still likely to abscond if released , despite the fact that he was married to a NORP national , had CARDINAL young children and had already been in detention pending trial for DATE . He risked being imposed a severe prison sentence if convicted and was suspected of belonging to an organisation which was in a position to smuggle persons abroad . Therefore , milder measures , such as his release on bail , were not suitable to avert the danger of his absconding and his continued detention was still proportionate .

On DATE ORG , endorsing the reasons given by ORG in its decisions , dismissed the first applicant ’s appeal as ill - founded .

On DATE ORG , following the first applicant ’s remonstrance , refused to amend its decision of DATE . It considered , in particular , that the first applicant ’s continued detention was not disproportionate in the light of the case - law of ORG and ORG on the subject - matter . The sentence he risked being imposed if convicted largely exceeded the length of his detention pending trial until then . ORG conceded that the proceedings had already lasted for a considerable time . Disagreeing with the first applicant , it found , however , that the prosecution authorities and ORG had not delayed the proceedings . The proceedings were very complex , notably because the offences had to be proved by examining the results of numerous intercepted telephone conversations made in a foreign language . The defendants being NORP nationals , the participation of interpreters in the proceedings was necessary . Moreover , the defendants’ lawyers had lodged numerous motions in the CARDINAL hearings of the case held until then , which had prolonged the proceedings . It had been sufficient for ORG to hold one hearing per week , which as a rule lasted DATE . The defendants’ lawyers had rejected ORG proposal made in DATE both to prolong the duration of the DATE hearing and to hear the case on DATE , arguing that they were unavailable .

On DATE the first applicant lodged a complaint with ORG against the decision taken by ORG on DATE and applied for an interim injunction quashing that decision and releasing him from prison . He subsequently extended his constitutional complaint to comprise also the decision of ORG dated DATE . He claimed that his continued detention pending trial was disproportionate and in breach of LAW , construed in the light of LAW . He argued that the proceedings had been unreasonably delayed by ORG and that the criminal courts wrongly upheld the detention order on the unfounded assumption that he would abscond if released .

On DATE ORG , without giving reasons for its decision , declined to consider the first applicant ’s constitutional complaint and declared that his application for interim measures had thereby become devoid of purpose ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG issued a new detention order also against the second applicant , which it upheld on CARDINAL and CARDINAL DATE following the second applicant ’s request for judicial review and appeal respectively . The second applicant was now charged notably with having infiltrated or having attempted to infiltrate NORP nationals into GPE or other countries of LOC on a commercial basis on QUANTITY occasions , acting as a member of a gang on CARDINAL of these occasions . As to the evidence in support of the strong suspicion that the second applicant committed these offences and as to the reasons why he risked absconding if released , despite the fact that he had a close relationship with his son living in GPE , ORG reasoned its order in similar terms as that against the first applicant issued DATE ( see above ) .

On DATE ORG , endorsing the reasons given in the decisions of ORG dated CARDINAL and CARDINAL DATE , dismissed the second applicant ’s appeal in which the latter had complained about the excessive length of his detention pending trial and about the delays caused in the proceedings by the fact that hearings were held only once per week .

On DATE ORG , on the second applicant ’s remonstrance , refused to amend its decision dated PERSON DATE . It took the view that its decision was not contrary to the case - law of ORG on the reasonable length of detention pending trial referred to by the second applicant .

On DATE ORG dismissed as inadmissible the second applicant ’s request to give him an opportunity for explanation following its decision and also rejected his further remonstrance .

On DATE the second applicant lodged a constitutional complaint with ORG against the decisions of ORG of DATE and DATE and applied for an interim injunction ordering his release from prison . He argued that his continued detention pending trial was unconstitutional in view of the protracted length of the proceedings against him .

On DATE ORG , without giving reasons for its decision , declined to consider the second applicant ’s constitutional complaint and declared that his application for interim measures had thereby become devoid of purpose ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

DATE and DATE included , ORG held CARDINAL hearings ( that is , on average one hearing per week ) , in the course of which CARDINAL witnesses and experts were heard .

In the hearing on DATE ORG stated that the judges , the applicants’ defence counsel and ORG had discussed an agreement with a view to terminating the proceedings ( ORG ) . In a decision laid down in TIME of the hearing , the court declared that it would sentence the first applicant to a maximum of DATE and CARDINAL months’ imprisonment and the second applicant to a maximum of CARDINAL years’ imprisonment if the applicants made a comprehensive and credible confession concerning certain specified offences they had been charged with . Moreover , the court promised to suspend the sentences imposed and grant probation already when the applicants had served CARDINAL of their sentence under LAW of LAW ( see Relevant domestic law and practice below ) if the information it had obtained to date was correct ( in particular that the applicants did not have any previous convictions ) and if the formal requirements were met . The applicants then confessed to the offences specified in ORG decision .

On DATE ORG pronounced its judgment . It convicted the first applicant of CARDINAL counts of infiltration or attempted infiltration of foreigners on a commercial basis , acting as a member of a gang on QUANTITY occasions , and sentenced him to DATE and CARDINAL months’ imprisonment . It found the second applicant guilty of CARDINAL counts of infiltration or attempted infiltration of foreigners on a commercial basis , acting as a member of a gang on CARDINAL occasions , and sentenced him to DATE imprisonment .

The court found that the applicants , partly acting together with another brother of theirs living in GPE , had illegally infiltrated NORP nationals into GPE or other ORG , notably GPE , in exchange for money . It based its findings on the ORG confessions , which were confirmed by the transcripts of intercepted telephone conversations and the testimonies of CARDINAL witnesses . It took into consideration , as a mitigating factor , inter alia , that the applicants had been in detention pending trial for DATE and DATE , and had been uncertain about the outcome of the proceedings for DATE of time due to the long duration of the proceedings .

By a decision taken immediately after the pronouncement of the judgment in the hearing , ORG quashed the detention orders of DATE against both applicants . It then instructed the applicants that they had the right to lodge an appeal on points of law against the judgment and that the agreement with a view to terminating the proceedings reached in the hearing did not bar them from lodging that appeal ( so - called qualified instruction – qualifizierte GPE ) .

Following an interruption of the hearing , during which the applicants consulted their defence counsel , the applicants waived their right to lodge an appeal with the consent of their defence counsel . The prosecution then also waived its right to appeal . The judgment thereby having become final , ORG suspended the remainder of the prison sentences imposed on the applicants and granted probation pursuant to LAW , having regard , inter alia , to the very long duration of the ORG detention pending trial .

The applicants subsequently lodged an appeal on points of law . They argued that the waiver of their right to appeal was invalid because it was based on an agreement with the court and because only that agreement had made possible their immediate release from prison .

On DATE ORG dismissed the ORG appeal on points of law as inadmissible . It found that the applicants had validly waived their right to lodge an appeal . Prior to the pronouncement of ORG judgment there had been an agreement between that court , the prosecution and the defence aimed at terminating the proceedings . However , the agreement did not comprise a commitment that the defendants waive their right to file an appeal on points of law . According to the TIME , the defendants had been expressly informed by ORG after the pronouncement of the judgment that the agreement reached did not prevent them from lodging an appeal on points of law against the judgment and had thus received the necessary qualified instruction . After a suspension of the hearing , which gave them sufficient time for consideration , they had declared to waive their right to appeal with the consent of their counsel . This waiver was irrevocable . Having regard to the criteria established in its case - law ( it referred to the decision of its ORG of DATE , no . GSSt CARDINAL , ORG ( ORG ) DATE , pp . CARDINAL et seq . , see Relevant domestic law and practice below ) , there were no exceptional grounds rendering the waiver void .

Under LAW of LAW , the courts may suspend the execution of the remainder of a prison sentence and grant probation already when CARDINAL of the sentence has been served , in particular , if the convicted person is serving his first term of imprisonment and the latter does not exceed DATE or if a comprehensive evaluation of the offence , the personality of the convicted person and his development during the execution of the sentence show that special circumstances exist .

In its leading decision of DATE , ORG of ORG laid down the principles governing the validity of a waiver of the right to appeal in the context of agreements with a view to terminating criminal proceedings ( no . GSSt CARDINAL , ORG ( ORG ) DATE , pp . CARDINAL et seq . ) . It considered such agreements , in which the criminal courts made a binding declaration on a maximum penalty to be imposed in exchange for the defendant ’s confessing to ( part of ) the offences he was charged with , to be compatible with LAW and LAW if certain conditions were met .

In particular , all participants in the proceedings ( that is , professional and lay judges , the prosecution , the defence counsel and the defendant ) had to be involved in reaching the agreement , the result of which had to be made public in the hearing and had to be included in the TIME . The veracity of the confession made by the defendant in accordance with the agreement had to be verified . The agreement was not allowed to concern the legal qualification of the acts the defendant had been charged with . The penalty proposed by the court still had to reflect the defendant ’s guilt and the penalty which , according to the court , was to be expected without a confession could not be disproportionately severe so as to submit the defendant to undue pressure to confess . The court was only allowed to promise a maximum penalty ( as opposed to a specified penalty ) and could exceed that penalty only if relevant factual or legal aspects had been overlooked and if it had previously averted the defendant in the hearing of its intention to fix a higher penalty . ORG noted that in view of their heavy workload , the courts would be unable to render criminal justice and to avoid delays in the proceedings without being allowed to have recourse to such agreements .

ORG further observed that in the past , such agreements had in practice often involved the defendant ’s promise to waive his right to appeal against the judgment or at least the court ’s suggestion to do so . However , the criminal courts were not authorised , in the context of these agreements , to arrange upon a waiver of the right to appeal . An agreement aimed at terminating the proceedings was not to prevent an effective control , by the appeals courts , of the lower courts’ judgments . After the delivery of a judgment which was given following an agreement DATE irrespective of whether a waiver of the right to appeal had been included or discussed – the court therefore had to instruct the defendant not only about his right to appeal , but in addition on the fact that he was free to lodge an appeal irrespective of the agreement reached ( so - called qualified instruction ) . If such a qualified instruction had not been given , the defendant ’s waiver of his right to appeal was void .