Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

At TIME on DATE ORG ( “ Национална служба ‘ PERSON организираната NORP ” ) of ORG was given orders to arrest the applicant in connection with information gathered by colonel PERSON , a senior police officer in charge of investigating the assassination on DATE of the former Prime Minister of GPE , Mr PERSON ( see PERSON v. GPE , DATE , § § CARDINAL in fine and CARDINAL in fine , Reports of Judgments and Decisions CARDINALII ) . The service devised a plan and assigned a number of officers to the operation .

According to the findings of the military courts which later examined a set of criminal charges against CARDINAL officers who took part in that operation ( see paragraphs PERSON and DATE below ) , CARDINAL officers were dispatched to the applicant ’s address in advance to inspect the surroundings and check whether the applicant was at home . A group of CARDINAL officers was given the task of carrying out the actual arrest . At TIME that group arrived at the applicant ’s home in a block of flats in GPE , where they joined the CARDINAL officers previously sent there . The officers had CARDINAL cars . CARDINAL of them was a ORG Transporter minivan that they parked at DATE to QUANTITY from the front entrance of the applicant ’s building . Shortly before TIME officers went up to the applicant ’s flat , CARDINAL remained in the minivan , and CARDINAL was left at the building ’s entrance . The CARDINAL officers who went up rang the applicant ’s doorbell . His fourteenyear old daughter answered the door . The applicant showed up at the door moments after that . The officers told him that he was to accompany them to the police station . The applicant went back in , took his passport and a jacket , and followed the officers down . CARDINAL officers escorted the applicant in the lift . The CARDINAL others went inside his flat and remained there until TIME to prevent the persons present in the flat DATE the applicant ’s family and CARDINAL neighbours – to make telephone calls . Downstairs , the CARDINAL officers escorting the applicant were joined by the officer who had remained near the building ’s entrance . When the group was QUANTITY from the minivan , CARDINAL of the officers who was inside the vehicle opened its side sliding door . At that point , the applicant abruptly tried to move to the back of the minivan instead of its door . The CARDINAL officers who were escorting him grabbed him by the arms and placed them behind his back . The applicant resisted the ORG attempt to push him into the minivan . CARDINAL officer tripped him and the applicant fell , face down , on the minivan ’s floor , his legs remaining outside . The officer inside the minivan tried to pull him in . The minivan set off and , at the same moment , an officer who remained on the street pushed its side sliding door to close it . As the applicant ’s feet were still hanging outside , he was hit by the door . The officers inside the minivan kept on trying to close the minivan ’s door and handcuff the applicant , who resisted , keeping his arms under his body and trying to get up . The door could not be closed as the applicant ’s feet protruded outside . The officers eventually managed to pull the applicant ’s legs in and handcuff him . A hood was then placed on his head to blind him , so that he could not see where he was being taken .

The applicant denied that he had put up any resistance to his arrest , and asserted that the above findings had been based only on evidence given by the police officers involved . According to him , when he approached the minivan he was hit on the neck and fell inside , where he was handcuffed and hooded .

The minivan set off for ORG , a small town QUANTITY east of GPE . It seems that CARDINAL officers were with the applicant in the back of the minivan , and a fourth one was driving it , but it is equally possible that CARDINAL of the officers were in the back and the third one was sitting beside the driver .

According to the findings of the military courts , throughout the trip the applicant was lying , undisturbed , on the minivan ’s floor , and the officers were sitting around him , monitoring his behaviour . The minivan did not stop en route , and arrived in PERSON at TIME .

According to the applicant , during the trip the officers asked him questions and hit him . The minivan stopped several times en route . The questioning and the beating continued during those stops . The applicant received blows with solid objects to all parts of his body save for his face and genitals . During CARDINAL of the stops CARDINAL of the officers held the applicant ’s legs and another pushed the minivan ’s sliding door to strike them . The applicant was hit in the ankles . At CARDINAL point , pressure was applied to his eyes . The applicant lost consciousness several times .

In GPE , the applicant was taken out of the minivan and into a house used by the police as a “ secret base ” . According to him , the illtreatment continued there . Objects were inserted under CARDINAL of his nails . Solid objects were placed between his fingers and his hand was squeezed .

According to minutes drawn up by the police , the applicant was questioned TIME on DATE by colonel PERSON in relation to suspicions that he had been involved in the assassination of PERSON PERSON .

According to the transcription of a tape on which the questioning was secretly recorded by the police ( see paragraphs DATE below ) , colonel PERSON addressed the applicant as follows :

“ Be careful , if you make a mistake , it will be an enormous one . If you want to go [ as a bull ] with his horns forward , that ’s your decision . But then we ’ll also go forward with our horns . And our horns may turn out to be much sharper than yours ... This is because we took our time to sharpen them so as to make them prick cruelly ... If you want to play the hero – please , go ahead ... But I would say that TIME is a fateful one for you . It is decisive for you . A life to gain or lose and not only your life ... And this is the reason why this conversation is taking place here and not elsewhere ... Confession and repentance are the only chance for you ... ”

At some point during the interrogation the applicant made statements in which he confessed that he had taken part in a plot to assassinate PERSON PERSON .

At TIME on DATE the applicant was taken back to PERSON in a police vehicle . He was again hooded . In GPE he was brought before an investigator who charged him with complicity to premeditated murder .

Four other persons , including a Mr GPE , who had allegedly ordered Mr PERSON ’s assassination , and a Mr PERSON , who had allegedly carried it out by shooting Mr PERSON dead , were arrested and illtreated by the police at DATE and in DATE , and also charged . Both of them also made confessions .

On DATE , upon being admitted to the detention facility of ORG , the applicant was examined by PERSON , the facility ’s onduty medical doctor , who noted numerous haematomas in the area of his armpits , on his torso under the arms , on his wrists , on his left thigh , on his leg below the knee , and on both of his ankles . She also found open wounds on the applicant ’s left wrist and the index finger of his left hand . Her estimation was that all those injuries had been sustained DATE . When interviewed by the authorities in relation to that on DATE , a colleague of PERSON said that such examinations were being carried out routinely on all incoming detainees and did not involve any forensic findings as to the origin of any injuries found on the detainees . Such findings could be made only by forensic medical doctors , and the usual practice was to refer a detainee suspected of having been subjected to physical violence to ORG . When interviewed by the authorities in relation to that on CARDINAL DATE , PERSON said that when examined by her on DATE the applicant had told her that he had been illtreated after his arrest .

In spite of his request , the applicant was not allowed to contact a lawyer of his own choosing . An ex officio counsel was appointed to represent him . The counsel allegedly did not heed the applicant ’s request to contact his relatives and ask them to arrange for a forensic medical examination .

DATE after the applicant ’s arrest his mother and wife were allowed to visit him . After their meeting , the applicant ’s mother sent letters to ORG , the Minister of ORG , the President , the Prime Minister and the media , describing traces of serious violence which she had seen on the applicant and requesting an adequate reaction by the authorities .

On DATE the applicant was taken , apparently in the face of opposition by the investigator in charge of his case , to ORG for examination . The ORG findings included the following : an injury measuring QUANTITY to the parietal area of the skull ; injuries to both wrists ; a hematoma on the thumbnail of the left hand ; an injury to the fingertip and the nail of the index of the left hand ( with CARDINAL of the nail missing ) ; an injury to the ring finger ; CARDINAL injuries to the front of the left leg under the knee ; CARDINAL injuries to the front of the right leg under the knee .

On DATE CARDINAL investigators , assisted by a medical doctor from ORG of ORG and a technical assistant , examined the applicant in the presence of CARDINAL attesting witnesses . They noted the following injuries on him ( all of them in various stages of recovery ) : an injury measuring QUANTITY to the parietal area of the skull ; an injury measuring CARDINAL and CARDINAL by QUANTITY to the inner left elbow ; an injury measuring CARDINAL by QUANTITY to the outer left elbow ; CARDINAL parallel linear injuries QUANTITY long each to the outer left wrist ; a similar injury QUANTITY long to the inner left wrist ; an eightmillimetrelong hematoma under the thumbnail of the left hand ; partially missing nail and swelling of the index of the left hand ; a ninemillimetrelong linear injury between the first and the second phalanges of the ring finger of the left hand ; CARDINAL injuries each measuring CARDINAL or CARDINAL by QUANTITY to the front and inner surfaces of the lower right leg , situated in the area QUANTITY below the knee and QUANTITY above the ankle ; CARDINAL similar injuries to the lower left leg ; and swelling of the left ankle .

The applicant remained in pre - trial detention until DATE , when he was released on bail .

The applicant ’s interrogation on DATE in the house in PERSON was secretly recorded . This was apparently done without the applicant ’s knowledge and without a judicial warrant . Judicial authorisation to carry out secret recordings in the house in PERSON in relation to the applicant was only given on DATE by the President of ORG , and concerned a tenday period beginning on DATE .

A visual examination of a photocopy of the document containing the police request for a judicial warrant and the judge ’s decision shows that the request was dated DATE and that , apparently , it was not submitted to the judge before DATE . It can also be seen that the initial proposal by the police was for a period starting on DATE and that the number “ CARDINAL ” was then written over the number “ CARDINAL ” .

In DATE a transcription of the recording was drawn up . According to the applicant , the transcription did not reflect the whole interrogation .

At the applicant ’s trial ( see paragraph CARDINAL below ) , the prosecution sought to rely on the recording . On DATE , noting that it had been made surreptitiously and without a valid warrant , ORG refused to admit it in evidence .

In DATE , DATE and DATE the police allegedly made statements to the media , implying that they had arrested the persons responsible for PERSON PERSON ’s assassination .

On DATE the Minister of ORG , replying in ORG to a remark that the police had repeatedly made groundless assertions that they had found Mr PERSON ’s assassins , said that since his appointment as Minister he had only once asserted that the assassin had been arrested and that had been DATE when PERSON ( one of the applicant ’s coaccused ) had been detained .

In DATE after their arrests , the applicant and his CARDINAL coaccused maintained their initial confessions and gave evidence in this sense to the investigators in charge of their case . Later , they changed their position and stated that they had never been involved in a plot to assassinate PERSON and that their confessions had been extracted under torture .

During the trial , which started in DATE , ORG admitted in evidence medical certificates and witness evidence concerning the illtreatment to which the applicant had been subjected on CARDINAL or DATE .

In a judgment of CARDINAL DATE ORG found the applicant and his CARDINAL co - accused guilty of Mr PERSON ’s assassination , and sentenced all of them to life imprisonment ( without parole for the applicant ’s coaccused and with parole for the applicant ) . The court relied heavily on the confessions made by the applicant and CARDINAL of his coaccused .

Addressing the argument of the defence that those confessions had been extracted under torture , the court accepted that there existed solid evidence that the police had used serious physical violence and psychological harassment against them immediately after their arrests . The court observed that such acts were unacceptable and called for disciplinary and , if appropriate , criminallaw measures against the officers concerned .

However , the court went on to observe that the applicant and his CARDINAL coaccused had maintained their confessions for DATE , and that they had not been ill - treated after DATE . The applicant had maintained his confession in the course of CARDINAL interviews held DATE and DATE in the presence of counsel of his own choosing , retained by him on an unspecified date . The court considered that it could therefore rely on the confessions made during those interviews , which had been conducted by investigators .

The applicant and the other accused appealed .

The Sofia Court of Appeal court heard expert evidence concerning the illtreatment to which the applicant and his CARDINAL coaccused had been subjected .

On DATE ORG quashed ORG judgment and acquitted all accused on the charges concerning PERSON PERSON ’s assassination .

NORP The court analysed the evidence concerning the way in which the applicant had been treated on CARDINAL or DATE , and concluded that he had been subjected to torture in breach of the LAW . The applicant and his coaccused had confessed under illtreatment which had left longlasting marks on their bodies . The pain from the injuries had not subsided for DATE . It was moreover significant that when CARDINAL looked at the medical evidence concerning each of the CARDINAL accused , one could see that the higher the intensity of the torture , the longer the accused concerned had maintained his confession . The applicant , who had suffered the most serious injuries , had been the most consistent in maintaining his confession .

The court went on to say that there was evidence of an attempt to delay the proper medical examination of the applicant and his coaccused . During that time , they had been questioned by investigators although their bodies had carried marks of illtreatment . The investigators’ good faith was therefore open to doubt .

The court therefore decided that the confessions should not be taken into account and , analysing the remaining evidence , concluded that the charges had not been made out .

On DATE ORG , hearing the case on an appeal by the prosecution , upheld the acquittal ( реш. № CARDINAL от CARDINAL март DATE г. по н. д. № CARDINAL/CARDINAL г. , ORG , ORG н. о. ) . It agreed with the finding that the applicant and his coaccused had been subjected to illtreatment , and held that it could not admit the resulting confessions , which were a “ fruit of the poisonous tree ” , because that would be in breach of the right to a fair trial . The court went on to say that in a democratic legal system unlawful attempts to extract confessions , as in the case at hand , were in the final analysis harmful to the prosecution ’s case .

On DATE ORG opened a preliminary investigation in relation to the applicant ’s alleged ill - treatment . During DATE the military investigation authorities interviewed a number of people and obtained a medical expert report on the applicant ’s injuries and the manner in which they had been inflicted .

The report , filed on DATE , reviewed the medical findings of the examinations on DATE and CARDINAL and DATE ( see paragraphs CARDINAL , DATE and DATE above ) . The experts said that the injury to the applicant ’s head had been caused by a blow with or against a blunt object . The injuries to his left elbow , his left ring finger and legs below the knees had been caused in a similar way . The lack of detailed findings in relation to them in DATE examination showed that they had either not been present at that point and had occurred later , or that they had not been properly noted . The injuries to the wrists had been caused by handcuffs . The injuries to the nail of the left index finger had been caused by a frontal traumatic impact to the finger . As the injury had been inflicted a long time before the examination which had noted it , its exact cause could not be determined : it could have consisted of a blow to the distal phalange , the insertion of an object under the nail , or the removal of the nail by the application of pressure to its extremity . The hematoma on the left thumbnail had been caused by a blow or by the pressing of the thumb between hard blunt objects . The hematomas noted during the examination on DATE had been caused by blows with hard blunt objects .

On DATE the proceedings were stayed because CARDINAL of the officers who had allegedly ill - treated the applicant was abroad on an official mission and could not be interviewed . On DATE , following his return , the proceedings were resumed .

DATE the investigator in charge of the case charged CARDINAL officers who had travelled with the applicant in the police minivan which had taken him to the house in GPE with causing him light bodily harm , contrary to LAW ) in conjunction with LAW of LAW DATE ( see paragraph CARDINAL below ) .

The investigator also obtained an additional medical expert report with a view to clarifying the exact origin of the applicant ’s injuries and elucidating the discrepancies in the medical findings made by PERSON on DATE and the findings of the forensic doctors of DATE . However , the report , filed on DATE , was unable to reach more definite conclusions on that point . Nor were the experts able to say – without being presented with clearer information – exactly what kind of injuries would be caused by an intensive eighthour beating .

DATE . On DATE the investigator proposed that the CARDINAL officers be brought to trial . However , on DATE ORG referred the case back for additional investigation . It observed , inter alia , that no information had been gathered about the officers in charge of the applicant between his arrival in PERSON and his return to GPE DATE .

On DATE the proceedings were stayed once again , because CARDINAL of the applicant ’s co - accused , who had also been taken to the house in GPE , had left the country and could not be interviewed as a witness . They were resumed on DATE .

On DATE the investigator again proposed that the CARDINAL officers be brought to trial . However , on DATE the Sofia Military Prosecutor ’s Office once more referred the case back for additional investigation . It observed that the charges did not specify which of the CARDINAL officers had administered which blows to which parts of the applicant ’s body .

On DATE the investigator again sent the case to ORG , which again referred it back on DATE for additional investigation , saying that the charges did not specify the exact manner in which the officers had caused the applicant ’s injuries .

On DATE the Sofia Military Prosecutor ’s Office indicted the CARDINAL officers , but on DATE the ORG referred the case back for additional investigation . On DATE the Sofia Military Prosecutor ’s Office again indicted the officers , and DATE the Sofia Military Court again referred the case back . It appears that DATE the case lay dormant with the military prosecuting and investigating authorities .

On an unspecified date in DATE the Sofia Military Prosecutor ’s Office submitted an indictment against the CARDINAL officers to ORG .

The trial took place on DATE , DATE , DATE and DATE . At the outset the applicant made a civil claim against the officers , seeking MONEY , plus interest , in nonpecuniary damages .

In a judgment of DATE ORG acquitted the officers and rejected the applicant ’s civil claim . The court started by setting out its findings of fact ( see paragraphs CARDINAL and CARDINAL above ) . It went on to hold that , based on those findings , the ORG actions could not be regarded as a criminal offence because , although causing the applicant bodily harm , they had been justified under LAW ( see paragraph CARDINAL below ) . The court reproduced in its judgment the applicant ’s allegations concerning his ill - treatment inside the minivan and in PERSON , and said that those allegations , if true , meant that the applicant would have had injuries all over his body and would carry horrifying marks of illtreatment . However , the findings of PERSON ( see paragraph CARDINAL above ) had not revealed such marks and were fully consistent with the version put forward by the CARDINAL accused officers . Dr D.D. had not recorded multiple injuries to the applicant ’s head , but CARDINAL injury to the central parietal area . It was implausible to assume that all of the alleged numerous blows to the applicant ’s head had been administered to a single spot . There were no recorded injuries to the front or the back of his torso , belly or feet , or injuries to his eyes caused by pressing . It could therefore be accepted that the ORG account as to the amount of force that they had used to restrain the applicant and handcuff him was truthful , and that the use of force has stopped after the applicant had been subdued . The ORG aim had been to arrest the applicant , who they believed had committed a criminal offence , and to bring him before the appropriate authority – colonel PERSON The officers had also sought to prevent the applicant from alerting his accomplices . In view of his resistance , there had been no other way of carrying out the arrest . The use of force had also been justified under section CARDINAL(CARDINAL)(CARDINAL ) of ORG ( see paragraph CARDINAL below ) because the applicant had failed to heed a lawful order and had put up resistance . The CARDINAL officers had not used disproportionate force . The applicant had been arrested in relation to a very serious offence – the assassination of a former prime minister – , had resisted arrest , and had not sustained very serious injuries . The use of force had stopped immediately after he had been subdued . Since the ORG actions had not constituted an offence and had amounted to a lawful use of force , the applicant ’s civil claim was to be rejected .

On DATE the prosecution appealed against the acquittal to ORG . The applicant also appealed against the acquittal and the rejection of his civil claim .

ORG of Appeal heard the appeal on DATE . It drew the ORG attention to the fact that the limitation period for prosecuting them on the charges against them DATE had expired on DATE . The court went on to say that the proceedings could continue only if the officers were to waive the statute of limitations ( see paragraph CARDINAL below ) . All CARDINAL of them stated that they wished to have the charges against them determined despite the expiry of the limitation period . The court then heard the parties’ arguments and announced that it would hand down its judgment in due course .

NORP However , on DATE the court found that it could not decide the case without rehearing the applicant and colonel PERSON , and called them to testify . At the next hearing , held on CARDINAL DATE , counsel for CARDINAL of the police officers requested CARDINAL of the judges to withdraw from the case . She argued that he had shown bias against her client . The court said that it did not find any grounds for that but that it would accede to her request to avoid any suspicions of partiality . As a result , the appellate proceedings had to start anew , as required under the principle of immediacy . On DATE the court , sitting in a new formation , decided to rehear the applicant ; this time , however , it did not mention colonel PERSON

When appearing in court on CARDINAL DATE , colonel PERSON apparently again asserted in front of journalists that the applicant and his co - accused had assassinated PERSON .

The new formation heard the appeal on DATE . It likewise drew the ORG attention to the fact that the limitation period for prosecuting them had expired , and the officers reiterated that they agreed to waive the statute of limitations . The court then heard the applicant as a witness , and admitted in evidence the judgments of ORG and ORG in the criminal proceedings against the applicant ( see paragraphs PERSON above ) . It turned down a request by the ORG defence to recall colonel PERSON and several other witnesses to the stand , finding that this would be superfluous .

At the next hearing , held on DATE , the court turned down a request by counsel for CARDINAL of the officers for a fresh medical expert report , observing that the medical evidence that had already been adduced DATE which included the results of the medical examinations of the applicant on DATE and DATE ( see paragraphs DATE – was sufficient . The court reheard the officers and the parties’ oral arguments .

In a final judgment of DATE ( реш. № CARDINAL от CARDINAL юли DATE г. по н. д. № DATE г. , ВАпС ) , ORG upheld the ORG acquittal . It fully agreed with the lower court ’s findings of fact , saying that they were based on a proper analysis of the statements of the CARDINAL accused , the evidence given by the applicant , the medical expert report obtained in the course of the proceedings , and the notes made by PERSON when she had examined the applicant on DATE . The court went on to say that the indictment did not contain factual allegations in respect of CARDINAL of the CARDINAL officers , who was therefore to be acquitted on the basis that he had not used any force in respect of the applicant . The court did not agree with the lower court that LAW was applicable , holding that this provision referred exclusively to the arrest of offenders who have been convicted by means of a final decision , which was not the case of the applicant . However , it went on to say that the ORG actions were not criminal because they had constituted a lawful and proportionate use of force within the meaning of section CARDINAL(CARDINAL)(CARDINAL ) of ORG ( see paragraph CARDINAL below ) . The applicant had failed to heed a lawful order and had resisted the ORG efforts to put him into the minivan and to handcuff him inside the minivan . The officers had stopped using force immediately after handcuffing the applicant . Lastly , the court noted that during the preliminary investigation the applicant had given evidence that he had been subjected to violence in the house in GPE , where the CARDINAL officers had left him . That showed that not all injuries later found on the applicant had been caused by them .

On an unspecified date in DATE the prosecution sought the reopening of the criminal proceedings against the applicant on the ground that the acquittal of the officers was a new relevant fact showing that the applicant had not been illtreated .

In a judgment of DATE ( реш. № CARDINAL от DATE г. по н. д. № CARDINAL г. , ORG , ORG н. о. ) , ORG turned the request down , holding that the conclusion of the criminal proceedings against the officers did not amount to grounds to reopen the criminal proceedings against the applicant because the courts in those proceedings had not found that the applicant had not been subjected to illtreatment .

On DATE CARDINAL of the applicant ’s co - accused were beaten by the officers who escorted them from prison to ORG for a hearing in the trial against them . Noting their injuries , the court adjourned the hearing .

In DATE CARDINAL of them , Mr PERSON , brought a claim under LAW DATE ( see paragraph CARDINAL below ) against ORG , seeking MONEY in non - pecuniary damages .

DATE . On DATE the ORG rejected the claim . It held that although the claimant had proved that he had been illtreated on DATE , he had not been able to prove who exactly had ill - treated him and under what circumstances . The facts alleged in his statement of claim did not match the evidence given by a witness called by him ( the other coaccused ) , and that evidence did not match the evidence given by the applicant , who had also been called to testify . Moreover , the first witness had not pointed to the specific individuals who had carried out the beating , whereas torts under section CARDINAL of LAW had to be attributed to a specified individual .

The applicant ’s co - accused appealed . On CARDINAL DATE the ORG upheld the lower court ’s judgment ( реш. № CARDINAL от CARDINAL май DATE г. по гр. д. № DATE г. , ORG , VІІ с. ) . It held that the fact of the beating had been substantiated on the basis of the medical evidence and the applicant ’s and the other coaccused ’s testimony . However , it went on to say that at the relevant time the officers escorting detainees from prison to trial had been employees of ORG , not ORG ; the ORG had taken over that task on DATE , following a legislative amendment . It could therefore not be held vicariously liable for the ORG actions .

It does not seem that the applicant ’s coaccused tried to appeal on points of law .

Section CARDINAL of ORG , in force until DATE , provided , in so far as relevant :

“ ( CARDINAL ) The police may use physical force and auxiliary means when performing their duties only if those duties can not be carried out in a different way , in cases of :

NORP resistance or refusal to obey a lawful order ;

NORP arrest of an offender who does not obey or resists a police officer ;

NORP attacks against civilians or police officers ;

( CARDINAL ) ORG means are : handcuffs ; straitjackets ; rubber and electroshock truncheons and devices ; chemical substances approved by ORG , service animals – dogs , horses ; blank cartridges , cartridges with rubber , plastic or shock bullets ; devices for the forced stopping of motor vehicles ; opening devices , light or sound devices with distracting effect ; waterspraying and air - pressure devices ; armoured vehicles and helicopters .

( CARDINAL ) The manner in which the means under subsection CARDINAL are to be used shall be laid down by the Minister of ORG .

Section CARDINAL provided :

“ ( CARDINAL ) Physical force and auxiliary means are to be used only after giving warning , except in cases of sudden attacks or of freeing hostages .

( CARDINAL ) The use of physical force or auxiliary means shall correspond to the specific circumstances , the character of the breach of public order and the personality of the offender .

( CARDINAL ) When using physical force or auxiliary means police officers must if possible protect the health of the persons against whom those are deployed , and must take all measures to safeguard their life of those persons .

( CARDINAL ) The use of physical force or auxiliary means shall be discontinued immediately after they have achieved their aim .

On CARDINAL DATE those provisions were superseded by sections DATE and CARDINAL of ORG DATE . Until recently , the wording of those provisions was largely identical to that of the earlier ones .

NORP However , on DATE the ORG laid before ORG a bill for the amendment of LAW . ORG enacted the bill on CARDINAL DATE , and the amendment came into force on DATE . Section CARDINAL(CARDINAL ) , as worded after the amendment , provides that physical force and auxiliary means may be used “ only if absolutely necessary ” . A newly added subsection CARDINAL of section CARDINAL provides that “ police officers shall use only the force absolutely necessary ” , and a newly added subsection CARDINAL provides that “ [ PERSON is forbidden to use lethal force to arrest or prevent the escape of a person who has committed or is about to commit a nonviolent offence if that person does not pose a risk to the life or health of another ” . In the explanatory notes to the bill the Government referred to , inter alia , the need to bring domestic law fully into line with the applicable international standards and the ORG ’s caselaw .

Article CARDINAL § CARDINAL of LAW DATE , added in DATE , provides that causing harm to a person while arresting him or her for an offence is not criminal where no other means of effecting the arrest exist and the force used is necessary and lawful . According to LAW , the force used is not necessary when it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary .

DATE . Under LAW ( CARDINAL ) taken in conjunction with LAW , the punishment for light bodily harm inflicted by a police officer is up to CARDINAL years’ imprisonment .

Under LAW , as worded at the time when the applicant was allegedly illtreated , forcing an accused to confess through coercion or other unlawful means was an offence punishable by up to ten years’ imprisonment , where the perpetrator was a person in whom relevant official powers were vested .

The limitation period for prosecuting offences under LAW ) taken in conjunction with LAW is DATE ( LAW ( CARDINAL ) of the Code ) , and the limitation period for prosecuting offences under LAW is DATE ( LAW § CARDINAL ( CARDINAL ) ) . Each act of criminal prosecution carried out by the competent authorities in relation to the alleged offender interrupts the limitation period and restarts the running of time ( LAW ) . Such interruptions notwithstanding , the alleged offender can no longer be prosecuted if the limitation period has been exceeded by CARDINAL ( Article CARDINAL § CARDINAL ) , which means that an offence under LAW ( CARDINAL ) taken in conjunction with LAW can not be prosecuted if CARDINAL and a half years have elapsed after its alleged commission . However , under LAW of LAW DATE ( superseded by LAW ) , the accused may waive the statute of limitations .

A description of the relevant provisions of the DATE LAW , the DATE and DATE Codes of Criminal Procedure , the Special Surveillance Means Act CARDINAL , LAW , and ORG , as well as the caselaw of the domestic courts and other relevant material can be found in paragraphs CARDINAL of the ORG ’s judgment in the case of ORG and PERSON v. GPE ( no . CARDINAL , DATE ) .

Following the ORG ’s judgment in that case , on DATE the Government laid before ORG a bill for the amendment of the Special Surveillance Means Act CARDINAL . The explanatory notes to the bill referred to the ORG ’s judgment and to the need to bring the LAW into line with the requirements of the LAW . The bill was enacted on DATE and came into force on DATE . Along with a host of other changes , the amendment created a ORG , an independent body whose CARDINAL members were to be elected by ORG and whose task was to oversee the use of special means of surveillance and the storing and destruction of material obtained through such means , and to protect individuals against the unlawful use of such means ( new sections NORP ) , ORG and DATE ) . The ORG was to be a permanently acting body having its own administration ( new section CARDINALb(CARDINAL ) ) . In carrying out its functions it could ( a ) ask the relevant authorities to provide it with information in relation to the use of special means of surveillance ; ( b ) check whether those authorities kept accurate records ; ( c ) access premises containing such records or material obtained though surveillance ; ( d ) give mandatory instructions for improvements in the use of special means of surveillance and in the storage and destruction of material obtained though such means ; and ( e ) inform the prosecuting authorities and the heads of the relevant authorities of instances of unlawful use of such means or of irregularities in the storage or destruction of material obtained though such means ( new section CARDINAL g ) . The ORG was to submit to ORG an DATE report setting out aggregated data on the matters that it was overseeing ( new section CARDINALb(CARDINAL ) ) . It was also to inform of its own motion persons who had been unlawfully subjected to surveillance , unless notification could jeopardise the purpose of the surveillance ( section MONEY ) .

On DATE , before the ORG could start operating , ORG enacted further amendments to LAW , abolishing the ORG and replacing it with a special parliamentary commission , which has the same powers and duties , save for the power to give mandatory instructions ( point ( d ) in the above paragraph ) ; it may only make suggestions for improvements ( section CARDINAL g , as amended in DATE ) . The amendments came into force on DATE . Under related amendments to ORG ’s standing rules , which came into force on DATE , that commission is in effect a permanent subcommission of ORG ’s legal affairs commission ( new rule CARDINAL ) ) . It consists of CARDINAL MP from each parliamentary group and has its own standing rules approved by ORG ( new rule CARDINAL ) ) . Those rules were adopted on DATE . The commission , whose current CARDINAL members were elected by ORG on DATE , is assisted by CARDINAL parliamentary staffers ( rule CARDINAL ) of ORG ’s standing rules and rule CARDINAL of the commission ’s standing rules ) . It must sit , behind closed doors and in line with the rules governing classified information , at least once DATE ( rules CARDINAL and CARDINAL of the commission ’s standing rules ) .

Under section CARDINAL of LAW , as amended , the commission must inform of its own motion persons who have been unlawfully subjected to secret surveillance , unless notification might jeopardise the purpose of the surveillance , allow the divulgation of operational methods or technical devices , or put the life or health of an undercover agent or his or her relatives or friends in jeopardy .

The commission has thus far submitted CARDINAL DATE reports : the first was submitted in DATE and accepted by ORG on DATE , the second was submitted in DATE and accepted by ORG on CARDINAL DATE , and the third was submitted on DATE and has yet to be accepted by ORG . In that latest report the commission said , inter alia , that it had received a number of complaints from individuals , and had taken measures to examine them . It had carried out inspections in CARDINAL towns , and had noted many irregularities , such as insufficiently reasoned applications for judicial authorisation of secret surveillance , failures to destroy material obtained through such surveillance within the statutory timelimits , and failures to report back to the court which had authorised surveillance . The commission went on to say that the lack of proper recordkeeping made it difficult to oversee the operation of the system as a whole . It also noted the very low percentage of refused applications for judicial authorisation of secret surveillance . The total number of requests in DATE had been CARDINAL . CARDINAL had been refused , chiefly on purely technical grounds . CARDINAL persons had been subjected to surveillance . CARDINAL requests had yielded material subsequently used in criminal trials . The analysis of the available data showed that the authorities were not using secret surveillance as a means of last resort , but routinely , mainly because it was an almost effortless way of gathering evidence . It was therefore necessary to tighten up the relevant regulations and to strengthen judicial control . The commission made a number of specific proposals in that respect .

Section CARDINAL of the Act originally called ORG Citizens Act DATE , renamed on DATE the ORG and ORG DATE ( “ the DATE LAW ) , provides that the ORG is liable for damage suffered by individuals ( and since DATE also legal persons ) as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties .

Section CARDINAL(CARDINAL ) of the LAW provides for liability of the investigating and prosecuting authorities or the courts in several situations : unlawful detention ; bringing of charges , if the accused has been acquitted or the proceedings have been discontinued on certain grounds ; conviction and sentencing , if the conviction has later been set aside ; coercive medical treatment or coercive measures imposed by a court , if its decision has later been quashed as being unlawful ; and serving of a sentence over and above its prescribed duration .

On DATE a new point CARDINAL was added to section CARDINAL(CARDINAL ) . It provides that the ORG is liable for damage which the investigating and prosecuting authorities or the courts have caused to individuals through the unlawful use of special means of surveillance . There is no reported caselaw under that provision .

In their caselaw ORG and ORG have held that the liability provisions of LAW – including those added after the LAW was originally enacted – confer on the persons concerned a substantive right to claim damages , and have no retrospective effect ( реш. № DATE от CARDINAL февруари DATE г. по гр. д. № DATE г. , ORG ; реш. № CARDINAL от DATE г. по гр. д. № CARDINAL/CARDINAL г. , ORG ; опр. № DATE от CARDINAL октомври DATE г. по адм. д. № DATE г. , PERSON , ORG ; опр. № CARDINAL от DATE г. по гр. д. № CARDINAL г. , ORG , ORG г. о. ; опр. № CARDINAL от DATE г. по гр. д. № DATE г. , ВКС , III г. о. ; реш. № CARDINAL от CARDINAL май DATE г. по гр. д. № DATE г. , ВКС , III г. о. ; реш. № CARDINAL от CARDINAL юни DATE г. по гр. д. № DATE г. , ORG , IV г. о. ) .

According to a binding interpretative decision of ORG ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по тълк. гр. д. № CARDINAL г. , ORG на ВКС ) , persons who have been finally acquitted can obtain compensation for the mere fact that criminal proceedings have been brought against them , on the basis that the charges against them are retrospectively considered to have been “ unlawful ” . According to the same decision , compensation is due in respect of the proceedings themselves and in respect of any incidental measures , such as pretrial detention .

In several judgments given DATE ORG , when fixing the amount of damages it awarded pursuant to such claims , had regard to , among other things , the suffering of the persons concerned stemming from the hardship of being placed in pretrial detention ( реш. № CARDINAL от CARDINAL юни DATE г. по гр. д. № ORG г. , ORG , PERSON г. о. ; реш. № CARDINAL от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ; реш. № CARDINAL от CARDINAL януари DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ; реш. № CARDINAL от DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ; реш. № DATE от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ; реш. № CARDINAL от DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ) .

Section CARDINAL of ORG DATE provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . Liability under that provision – as , indeed , all provisions governing torts – is premised upon the wrongfulness of the impugned conduct ( реш. № CARDINAL от CARDINAL ноември DATE г. по гр. д. № ORG г. , ORG , петчленен състав ) .

Article CARDINAL of the Code of Civil Procedure DATE provided as follows :

“ The final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated , whether it was unlawful , and whether the perpetrator was guilty of it . ”

Article CARDINAL of the Code of Civil Procedure DATE , which came into force on DATE , is phrased in identical terms .

ORG , which under LAW has the duty to supervise the execution of the ORG ’s judgments , is still examining the execution by GPE of the ORG ’s judgment in ORG and PERSON ( cited above ) . According to information published on ORG website , the case is currently under “ enhanced supervision ” . The latest developments were that on DATE ORG had submitted an action report , that on DATE they had provided further information , and that on DATE they had submitted a further action report ( in which they had , inter alia , said that they were not aware of any caselaw under the new point CARDINAL of section CARDINAL(CARDINAL ) of LAW – see paragraph CARDINAL above ) . Bilateral contacts were still under way between the ORG ’s administration and the Government with a view to gathering more information necessary for the presentation of a revised action plan or report to ORG .


The applicant was born in DATE and lives in GPE .

On DATE the applicant was detained on suspicion of robbery and deprivation of liberty with aggravated violence .

On DATE ORG requested ORG to remand the applicant in custody . He indicated that the crimes the applicant was charged with had been committed with exceptional cruelty and that there was a risk that he would influence the witnesses and his co - accused if released .

On DATE ORG remanded the applicant in custody for DATE . In its decision the court underlined that there was a strong likelihood that the applicant had committed the crimes and , moreover , had done so soon after he had been released from prison . In addition , since the applicant was charged with a crime against a person who had refused to testify in his favour , the court considered that there was a reasonable fear that the applicant would obstruct the proceedings .

On DATE the ORG prolonged the applicant ’s detention . In its reasons for this decision it stated , inter alia , that there was a need to extend the scope of the investigation in the applicant ’s case and at the same time to prevent him from contacting other suspects . The applicant ’s appeal against this decision was dismissed on DATE . The ORG found that the applicant ’s detention pending trial was fully justified bearing in mind the severity of the charges , the likely penalty and the applicant ’s recidivism . The court agreed with ORG view that there was a possibility that the applicant would collude with his co - accused or try to influence witnesses . No grounds for release listed in LAW were established by the court .

In the course of the investigation the suspects and CARDINAL witnesses were heard .

On DATE the investigation was closed and a bill of indictment against the applicant and CARDINAL other persons was lodged with ORG . The applicant was charged with CARDINAL offences . The prosecutor named CARDINAL witnesses to be summoned for the hearing and CARDINAL persons were identified as victims of the crimes . A local inquiry ( wywiad środowiskowy ) was concluded .

By decisions of DATE and DATE the applicant ’s detention pending trial was further prolonged . The courts stated , inter alia , that the grounds for applying this measure remained valid . They found that there was a need to secure the proper conduct of the proceedings , bearing in mind the severity of the charges against the applicant , his recidivism and the fact that he had committed the offences within DATE of his release from prison . The circumstances of CARDINAL of the offences - deprivation of liberty - pointed to the risk that the applicant would attempt to pervert the course of justice . No special circumstances dictated the lifting of the detention . The court also took into account the complicated nature of the case , which related to numerous persons and criminal acts . On DATE the decision of DATE was upheld by ORG . The court considered that the evidence gathered in the proceedings indicated a strong likelihood that the applicant had committed the crimes with which he had been charged . In addition , the applicant ’s continued detention pending trial was found to be necessary , bearing in mind the seriousness of the charges , the severity of the anticipated penalty and the applicant ’s criminal record . His attempts to influence the testimonies of a witness in another case and the fear of the applicant expressed by some of the victims justified the perceived risk of collusion . At the same time the ORG underlined that the trial court should make every effort to conduct the proceedings promptly and swiftly .

In a subsequent decision of DATE prolonging the applicant ’s detention ORG indicated , inter alia , that despite the fact that the victims had already been heard there was still a risk of collusion and unlawful obstruction of the proceedings by the applicant , bearing in mind in particular his behaviour during the previous hearing . The court considered that police supervision would not be enough to secure the proper conduct of the proceedings .

In the reasons for the decision of DATE prolonging the applicant ’s detention for a further DATE , the court underlined , inter alia , that there was a risk that the applicant would influence witnesses , especially bearing in mind his aggressive attitude during the hearings , and that no other preventive measure would sufficiently secure the proper conduct of the proceedings . The court also stressed the need to examine the witnesses requested by the applicant ’s defence counsel . The applicant appealed against this decision on DATE . On DATE the ORG upheld the decision and ruled that ORG had correctly indicated both the general and specific circumstances which justified the extension of the applicant ’s detention pending trial . At the same time the appellate court drew the trial court ’s attention to the need to accelerate the proceedings .

On DATE ORG granted the co - accused ’s request to undergo a psychiatric examination and at the same time decided to request ORG to prolong the applicant ’s detention until DATE . Since the applicant had reacted violently and declared that he too was mentally ill and should therefore be examined by a psychiatrist , the court decided to order a psychiatric expert opinion to be prepared on him .

In the reasons for the decision of DATE on prolongation of the applicant ’s detention the ORG considered , inter alia , that the conditions laid down in LAW were met and that the prolongation of the detention pending trial was necessary in order to allow for the completion of the complicated procedure for the taking of evidence . It was also necessary because the applicant and the co - accused had deliberately prolonged the proceedings by requesting a psychiatric examination at a time when the proceedings had almost been concluded . The court also noted other important obstacles beyond the court ’s control , such as the illness of the referring judge and the need to conduct the proceedings again . In the court ’s opinion , ORG could not be held responsible for the excessive length of the proceedings . The applicant ’s defence counsel appealed on DATE . On DATE the ORG upheld the impugned decision .

In the course of the proceedings , the applicant lodged several applications for the lifting of his detention pending trial or the imposition of a more lenient preventive measure . His applications were dismissed by the court on DATE , DATE and DATE , DATE , DATE , DATE and DATE . The applicant unsuccessfully appealed against these decisions .

The hearings in the proceedings were held on DATE , CARDINAL May , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , and DATE , DATE and CARDINAL DATE .

At a hearing held on DATE CARDINAL of the co - accused did not appear and in consequence it had to be adjourned . The court decided to remand the co - accused in custody for DATE . In addition , the court received information that one of the witnesses had moved away and it ordered that her new whereabouts be established . The court also refused to allow the motions of the applicant ’s and the co - accused ’s counsel to have their cases examined separately . It observed that all the offences were closely linked and that the co - accused had acted together and in concert . Consequently , conducting the proceedings separately for each of the coaccused would be contrary to the principle of promptness of proceedings .

The applicant was released from detention on DATE .

On DATE ORG found the applicant guilty of CARDINAL of the CARDINAL robberies with which he had been charged and CARDINAL of the CARDINAL kidnappings and acquitted him of the charge of drug trafficking . The applicant was sentenced to DATE and CARDINAL months’ imprisonment .

The relevant domestic law concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


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

The applicant was born in DATE and lives in the town of ORG in the LOC region .

On DATE the ORG of GPE convicted the applicant and his co - defendant , PERSON . , of concerted drug trafficking under LAW of LAW . It established that the applicant had repeatedly procured large quantities of drugs from unidentified sources and had handed them over to ORG . with a view to selling them to individual customers . ORG . had packaged the drugs , resold them and returned the proceeds to the applicant . On DATE the applicant had come to ORG . ’s flat and had collected the usual proceeds in the amount of MONEY ( RUB ) . He had been arrested shortly after leaving the flat .

At the trial ORG . pleaded guilty and submitted that the applicant had suggested that she sell drugs and that she had agreed . The applicant had repeatedly brought heroin and marijuana to her flat , she had sold the drugs to third persons and had returned to the applicant the proceeds in the amount of RUB CARDINAL per gramme of heroin . The applicant pleaded not guilty to all charges and claimed that he had lent RUB CARDINAL to ORG . and she had finally paid this amount back to him on DATE of his arrest . He contended that during the search at his flat he had voluntarily surrendered heroin to the police and that marijuana seized there had been a plant .

NORP In convicting the applicant ORG relied on the statements made by ORG . at the trial . It found that they were corroborated by the following evidence :

- In a pre - trial statement PERSON , the partner of ORG .. who had previously cohabited with her , confirmed that the applicant had repeatedly handed drugs over to ORG . and that she had subsequently resold them . According to PERSON , on CARDINAL October CARDINAL , before being arrested , the applicant had collected from ORG . the usual proceeds for the sale of heroin and had promised to return later and to hand her over a further amount of drugs for sale . S. was not questioned at the trial ; his deposition was read out despite the applicant ’s and his counsel ’s objections .

- In a pre - trial statement PERSON testified that she knew both from the applicant and ORG . that he had systematically provided ORG . with drugs for sale .

- Ya . testified at the trial that the applicant had suggested that she sell drugs but she had refused .

- Five police officers , questioned in court , submitted that prior to the applicant ’s arrest they had arrested several persons leaving ORG . ’s flat in possession of drugs . They also stated that they had seized drugs during the searches of the apartments of both co - accused .

- Five persons testified in court that they had bought drugs from ORG .

- Attesting witness ORG confirmed at the trial that narcotic - like substances had been seized at ORG . ’s flat .

- Forensic reports established that the substances seized from the co - defendants were heroin and marijuana and whereas it had been impossible to establish any match between the heroin samples seized from the applicant and ORG . , the marijuana samples seized from them had not matched .

The applicant was sentenced to DATE and CARDINAL months’ imprisonment . ORG . was sentenced to CARDINAL years’ imprisonment and was relieved from the punishment under LAW .

The applicant appealed and contended , among other things , that his conviction had been based on circumstantial evidence and that the trial court had failed to summon PERSON despite the applicant ’s requests and the fact that S. ’s whereabouts had been known to it . Furthermore , he claimed that he had repeatedly requested a confrontation with S. during the preliminary investigation and at ORG preliminary hearings , but all his requests had been either disregarded or turned down without any reasons given . He claimed that , contrary to the statement by ORG . that he had started supplying her with drugs in DATE , PERSON had allegedly testified that ORG . had started dealing in drugs in DATE . The applicant also averred that in her initial statements to the police ORG . had submitted that she had procured drugs from several other sources and not from him . He further complained that the court had convicted him of concerted trafficking in drugs despite the conclusions of the forensic reports that the heroin samples seized from him and his co - defendant were differently coloured and that the expert had been unable to establish whether those samples matched . The marijuana samples seized from him and ORG . had not matched at all . The applicant also alleged that the police had planted marijuana on him during the search of his flat .

On DATE ORG quashed the trial judgment and ordered a retrial . ORG found that some of the trial court ’s findings had lacked a proper evidentiary basis , that the trial court had found the applicant guilty of trafficking in bigger amounts of heroin than initially imputed to him by the prosecution , and that it should have questioned the attesting witnesses present when the seizure was carried out at the applicant ’s flat . It also held that the trial court had breached LAW by failing to take any measures to secure the attendance of witness S. , whose testimony had had major importance for the determination of the charge against the applicant and whose whereabouts had been known to it .

During a new trial , the applicant pleaded guilty to unlawful purchase of drugs ( LAW ) , but not to the concerted sale of drugs . He maintained that ORG . had slandered him under the influence of drugs and had yielded to pressure from the police officers . ORG . confirmed at the court hearings her statements made during the initial trial .

Having re - examined the case , on DATE ORG delivered a new judgment . It found both defendants guilty of unlawful procurement , storage and concerted trafficking in drugs , repeatedly and on a large and particularly large scale under LAW of LAW . It sentenced the applicant to DATE and CARDINAL months’ imprisonment and ORG . to CARDINAL GPE imprisonment , referring , among other things , to the fact that she had “ unmasked her accomplice ” . By the same judgment it relieved ORG . from punishment by virtue of LAW and ordered that she be treated for drug addiction .

The court based the applicant ’s conviction on the statements made at the retrial by ORG . It dismissed the applicant ’s allegations that ORG . had slandered him as unfounded and held that her statements were corroborated by other evidence :

- It referred to the pre - trial deposition from S. , noting that “ his statements were read out pursuant to LAW .

- It questioned PERSON who had previously asserted that she had learnt from the co - defendants that they had been dealing in drugs . PERSON retracted , but the trial court preferred to rely on her earlier pre - trial statement .

- It also read out the statement from ORG . made at the initial trial in which she submitted that the applicant had been trafficking in drugs , in particular heroin , after his release from prison and that he had suggested that she sell drugs but she had refused .

- It further had regard to the fact that RUB CARDINAL ( according to ORG . , the usual proceeds for the sale of CARDINAL gramme of heroin ) had been seized from the applicant during his arrest , and referred to handwritten notes seized at his flat . Those notes contained columns , arithmetical operations , and figures , including “ CARDINAL ” , “ CARDINAL ” , “ CARDINAL ” and so forth .

- Attesting witness Kh . submitted to the court that during the search he had seen the applicant surrender to the police what was supposed to be heroin and the police discover what was supposed to be marijuana .

- The police officers and the drug buyers confirmed to the court their statements made at the first trial .

- The court also referred to the forensic reports and other pieces of evidence used in the previous trial . The expert was not summoned to be heard as a witness .

On DATE and DATE the applicant submitted his grounds of appeal to ORG . He complained , among other things , that ORG had failed to question S. , although his testimony had contradicted ORG . ’s and his own accounts of the events ; that he had twice requested the court to question PERSON ; that the trial court had known that PERSON had been held in a detention facility in GPE and thus had had a real opportunity to obtain his attendance and , finally , that the first conviction had been quashed precisely because PERSON had not been questioned in open court . The applicant pointed out that the trial court had not referred to any circumstances which would justify the reading out of S. ’s statement . He also complained that the trial court had incorrectly assessed the forensic reports on the seized substances and that it had refused to summon the expert who could have given his opinion as to the difference in colour of the heroin seized from him , ORG . and the drug buyers .

On CARDINAL DATE ORG upheld the applicant ’s conviction . It held that ORG . ’s statements had been coherent and consistent throughout the proceedings and that the applicant ’s conviction was based on her testimony , corroborated by other evidence . As to the failure to secure the attendance of PERSON , the court of appeal ruled as follows :

“ The fact that witness ... PERSON was not directly questioned at a court hearing is not a significant breach of the law on criminal procedure .. By the time of the retrial , PERSON was already serving a prison sentence . Transferring him to the town of ORG would have entailed a lengthy adjournment of the trial . Therefore , in the present case the court , in the [ appeal court ’s ] opinion , lawfully read out ... the statements of witness PERSON and subsequently assessed them together with other pieces of evidence ... ”

By a decision of DATE , the President of ORG dismissed the applicant ’s request for supervisory review of his conviction .

By a decision of DATE , a judge of ORG dismissed an application by the prosecutor of GPE for supervisory review of the applicant ’s conviction . The decision stated , among other things , that the fact that the expert had been unable to confirm the match of the heroin samples seized from the applicant and ORG . and had concluded that the marijuana samples seized from them had not matched at all did not undermine the court ’s finding that the co - defendants had been trafficking in drugs in concert . This was because it had been established that the applicant had procured drugs from different sources on several occasions and had repeatedly supplied ORG . with small quantities of drugs for further sale . It was also noted that , according to the trial court verbatim record , the applicant had not submitted any requests for the expert to be summoned or any further examinations to be carried out .

On DATE ORG of GPE ordered the applicant ’s release on parole . It found that the applicant had already served CARDINAL of his prison sentence and that he had proved by his conduct that he did not need to serve it in full .

On DATE the President of ORG dismissed the application by ORG for supervisory review of the applicant ’s conviction , finding that it did not contain any arguments which would not have been examined in the decision of DATE .

Article CARDINAL § CARDINAL of LAW ( as in force at the material time ) provided that unlawful purchase or possession of a large quantity of drugs without the intention to sell was punishable by DATE imprisonment . Unlawful purchase or possession of a large or especially large quantity of drugs with the intention to sell , or the selling of drugs in the above quantities , committed by a group of persons and repetitively , carried a sentence of from seven to fifteen years’ imprisonment ( Article CARDINAL § § CARDINAL , DATE ) .

Article CARDINAL of the Code of Criminal Procedure of DATE ( as in force at the material time ) provided that the trial court was to examine the evidence in the case directly : it had to question defendants , victims , witnesses and experts , and examine material evidence , read out records and other documents . Article CARDINAL provided that statements made by a witness during the inquiry or pre - trial investigation could be read out in CARDINAL circumstances : ( i ) if there was a substantial discrepancy between those statements and the testimony given at the trial ; or ( ii ) if the witness was absent from the court hearing for reasons that made it impossible to secure his or her attendance .


No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 2 of Protocol No. 1 - Control of the use of property;General interest;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property)

Anatoly Kovler;André Potocki;Angelika Nußberger;Ann Power-Forde;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

The applicant inherited CARDINAL plots of land in the municipality of LOC ( département of ORG ) with a total surface area of QUANTITY , which are included in the hunting grounds of the LOC approved municipal hunters’ association ( association communale de chasse agréée – “ ORG ” ) . He holds a hunting permit .

In GPE , hunting rights over land belong in principle to the landowner . However , Law no . CARDINAL of DATE , known as the “ PERSON ” , provides for the pooling of hunting grounds within ACCAs . The creation of an ORG in each municipality is compulsory in CARDINAL of the ninetythree départements of metropolitan GPE excluding ORG , ORG and GPE , including in ORG ; in the remainder of those CARDINAL départements it is optional . Landowners whose property forms part of the hunting grounds of an ORG in this way automatically become members of the association . They lose their exclusive hunting rights over their own land but have the right to hunt throughout the area covered by the ORG .

However , the owners of land with a surface area above a certain threshold may object to the inclusion of their land in the ORG ’s hunting grounds or request its removal from them ( in the département of ORG , the threshold is QUANTITY , which corresponds to the statutory minimum area ) . Since the entry into force of Law no . DATE of DATE , landowners “ who , being opposed to hunting as a matter of personal conviction , prohibit hunting , including by themselves , on their property ” also have this option , irrespective of the surface area of their land ( see paragraphs QUANTITY below ) .

In a letter of CARDINAL DATE the applicant informed the Prefect of ORG that he wished to “ object to the practice of hunting by the Louin ORG on [ his ] plots of land ” “ as a matter of personal conviction ” . On DATE the Prefect informed him of the procedure to follow in order to have his land removed from the ORG ’s hunting grounds on account of his opposition to hunting for reasons of conscience .

On DATE the applicant again wrote to the ORG , applying to have his land removed from the Louin ORG ’s hunting grounds . He stated as follows :

“ ... My application to have the land removed is not based on personal convictions but on the fact that ORG , and subsequently the national administrative courts , have ruled ... that ‘ while different treatment of persons in a comparable situation may be justified by the general interest resulting in particular from the need to ensure coherent and efficient management of game stocks , there does not appear to be any objective and reasonable justification for obliging landowners , by means of compulsory transfer , to join an approved municipal hunters’ association against their wishes.’ It is clear from these different court rulings that large and small landowners can not be treated differently on the basis of provisions which are contrary to LAW [ No . CARDINAL ] taken in conjunction with LAW of [ LAW .

As I own QUANTITY , CARDINAL ares and CARDINAL centiares , I would kindly request you to grant me permission , by means of a reasoned administrative decision , to immediately remove from the hunting grounds of the Louin ORG the plots of land entered in section ... of the land register ... ”

On DATE the Director of ORG of ORG informed the applicant that his application had been rejected . Noting that the applicant was no longer citing his original reasons relating to personal convictions , but instead relied on LAW , the Director wrote as follows :

“ ... the provisions of the PERSON of DATE and of LAW , and in particular Articles L. CARDINAL - CARDINAL and PERSON thereof , were designed to bring the domestic law into line with the case - law of the Court ... by providing that only landowners who do not hunt and who are opposed to hunting as a matter of personal conviction have a right to raise objections to hunting irrespective of the surface area of their land , while maintaining the requirement for owners of land below a certain threshold ( QUANTITY in ORG ) to transfer the hunting rights over their land to the ORG .

Our enquiries have revealed that you are the holder of a valid hunting permit for the current hunting DATE .

As a result ... , pursuant to LAW , I must inform you that I am unable to grant your request and that the land you seek to have removed shall remain within the hunting grounds of the Louin ORG . ... ”

On DATE the applicant requested ORG to reconsider the decision .

On DATE , having received no reply , he applied to ORG for judicial review of the implicit refusal constituted by the ORG ’s failure to reply , and of the decision of DATE .

On DATE ORG allowed the application , in a judgment containing the following reasoning :

“ ... while different treatment of persons in a comparable situation may be justified by the general interest resulting in particular from the need to ensure coherent and efficient management of game stocks , there does not appear to be any objective and reasonable justification for obliging landowners , by means of compulsory transfer , to join an approved municipal hunters’ association against their wishes . ... thus , the difference in treatment between large and small landowners is contrary to LAW [ No . CARDINAL ] read in conjunction with LAW of [ LAW . ... ”

The Louin ORG applied to ORG to have that judgment set aside , arguing that , as a hunter himself , the applicant could not claim to be a victim of a Convention violation .

ORG rejected the application in a judgment of DATE . It considered that ORG had not been competent to sign the decision of DATE , which was therefore unlawful , as was the implicit refusal . Accordingly , the court concluded that the Louin ORG had no grounds for contesting the settingaside of the decisions in question .

On an application by the Louin ORG , the PERSON d’Etat , in a judgment of DATE , quashed the judgment of ORG . It held that the latter had committed an error of law in ruling that ORG had not been competent to sign the decision in question , since he had been properly delegated to sign documents in the sphere concerned .

Ruling on the merits , the PERSON d’Etat went on to quash the judgment of ORG of DATE and rejected the applicant ’s application for judicial review . The ORG d’Etat held , inter alia , as follows :

“ ... The evidence in the file shows that PERSON , who owns land with a surface area below that specified in paragraph CARDINAL of Article L. CARDINAL - CARDINAL of LAW , requested the removal of his land not on the grounds that he was opposed to hunting as a matter of personal conviction , as permitted by the fifth paragraph of that Article , but on the grounds that he wished to reserve the hunting rights over his land for his own use without allowing the members of the ORG to benefit from them .

The system of approved hunters’ associations was devised on general - interest grounds to prevent the unregulated exercise of hunting and promote rational use of game stocks . Landowners who hunt and who transfer the rights over their land are automatically entitled , in accordance with LAW of LAW , to membership of the hunters’ association and , accordingly , to hunt throughout the association ’s hunting grounds . Thus , the owners of land with a surface area below that specified in the third paragraph of Article CARDINAL of the Code have a choice between relinquishing their hunting rights on the grounds that they are opposed to hunting as a matter of personal conviction or transferring the hunting rights over their land to the ORG in exchange for the compensatory benefits referred to above . Accordingly , the system does not constitute disproportionate interference with the right to property and is not in breach of LAW No . CARDINAL ] .

The difference in treatment under the law between small and large landowners was introduced in the interests of hunters who own small plots of land , who can thus band together in order to obtain larger hunting grounds . Thus , this difference in treatment is based on objective and reasonable grounds and , since the owners of small plots remain free to use their land for a purpose in keeping with their conscience , the system in issue is not in breach of LAW No . CARDINAL ] taken in conjunction with LAW of [ LAW . It follows from the above that ORG incorrectly based its ruling on a breach of [ these provisions ] in setting aside the impugned decisions ... ”

In principle , hunting rights over land belong to the landowner . Article PERSON of LAW states that “ [ n]o one shall have the right to hunt on land belonging to another without the consent of the owner or any person entitled through or under the owner ” .

However , the legislature deemed it necessary for hunting grounds to be “ pooled ” in some cases . This was the purpose of Law no . CARDINAL of DATE , known as the “ FAC , which is applicable in the départements of metropolitan GPE other than ORG , ORG and GPE and provides for the establishment of approved municipal and intermunicipality hunters’ associations ( “ ACCAs ” and “ AICAs ” ) .

The ACCAs pool hunting grounds at municipal level . Under LAW of LAW , in the version applicable at the material time , they are “ designed to ensure sound technical organisation of hunting . They shall encourage , on their hunting grounds , an increase in game stocks and wildlife while preserving a genuine balance between agriculture , forestry and hunting , provide instruction to their members in hunting - related matters and ensure the control of vermin and compliance with hunting plans ... Their role is also to ensure that hunters contribute to the conservation of natural habitats and wild flora and fauna ” .

The ACCAs are subject to the ordinary law on associations ( LAW ) and to the specific provisions of FAC and the regulatory instruments implementing it ( Articles PERSON seq . and Articles R. CARDINAL - CARDINAL et seq . of LAW ) . The prefect issues approval after checking that the requisite formalities have been completed and that the association ’s constitution and internal rules conform to the statutory requirements ( Articles L. CARDINAL - CARDINAL and PERSON of LAW ) . The prefects are responsible for supervising the ACCAs , and any change to their constitutions , internal rules or hunting regulations must be submitted to the prefect for approval ( Articles R. DATE and PERSON of LAW ) . In the event of a breach by the ORG of its constitution or hunting regulations or of damage to property , crops or public freedoms , or of a general breach of the relevant regulatory provisions ( Articles PERSON seq . of LAW ) , the prefect may also adopt interim measures such as the suspension of hunting on all or part of the association ’s hunting grounds or the dissolution of its executive committee ( LAW of LAW ) .

The creation of ACCAs is mandatory only in certain départements named on a list drawn up by the Minister responsible for hunting on a proposal by the representative of the ORG in the relevant département , supported by the département council , and after prior consultation of ORG and ORG in that département ( LAW of LAW ) . CARDINAL of the ninetythree metropolitan départements other than ORG , ORG and GPE are concerned . In the remainder of those CARDINAL départements the representative of the ORG draws up a list of municipalities where an ORG is to be set up . The decision is taken on an application by anyone who can furnish evidence that PERCENT of landowners holding PERCENT of the land in the municipality agree to set up an association for a minimum DATE period ( Article PERSON of LAW ) .

Landowners whose land is included in an ORG ’s hunting grounds are automatically members of the association ( Article PERSON of LAW ) . They lose their exclusive hunting rights over the land but , as members , have the right to hunt throughout the association ’s hunting grounds in accordance with its regulations ( Articles PERSON and L. DATE of LAW ) .

The transfer of hunting rights entitles the landowner to compensation , payable by the ORG , for any loss of profits caused by being deprived of a previous source of income . The ORG is also obliged to pay compensation to owners of hunting rights who have “ made improvements to the land over which they have hunting rights ” ( Article PERSON of LAW ) .

Article CARDINAL of LAW provides :

“ A municipal hunters’ association shall be established on lands other than those :

within a radius of QUANTITY of any dwelling ;

enclosed by a fence as defined in Article L. CARDINAL - CARDINAL [ Article L. CARDINAL - CARDINAL provides that ‘ ... the owner of the land or the hunting rights may , at any time , hunt or arrange for the hunting of game animals on his or her land adjoining a dwelling and surrounded by a continuous and unbroken fence , forming an obstacle to any communication with neighbouring properties and incapable of being breached by game animals or by human GPE ] ;

forming an uninterrupted area greater than the minimum area referred to in LAW and in relation to which the owners of the land or of the hunting rights have filed objections ;

constituting public property belonging to the ORG , a département or a municipality or forming part of a public forest , or belonging to ORG or ORG .

in relation to which objections have been filed by individual owners , or unanimously by several co - owners acting jointly , who , being opposed to hunting as a matter of personal conviction , prohibit hunting , including by themselves , on their property , without prejudice to the effects of owner liability , and particularly liability for damage caused by game from their lands . ... ”

The fifth paragraph was added by PERSON no . DATE of DATE ( published in ORG on DATE ) for the purposes of executing the ORG ’s judgment in PERSON and Others v. GPE ( [ ORG ] , ORG . ORG , CARDINAL and CARDINAL , ECHR CARDINALIII ) ( see paragraph CARDINAL below ) .

Articles L. CARDINAL - CARDINAL , PERSON and PERSON of LAW further specify as follows :

“ I. In order to be admissible , an objection by the owners of land or hunting rights referred to in the third paragraph of Article PERSON must relate to CARDINAL hectares of land in a single block .

II . That minimum shall be lowered in respect of waterfowl shooting

to QUANTITY for undrained marshland ;

to QUANTITY for isolated ponds ;

to CARDINAL ares for ponds where , on DATE , there were fixed installations , shelters or hides .

III . The minimum shall be lowered in respect of hunting for birds of the family ORG to QUANTITY for land where , on DATE , there were fixed structures used for that purpose .

IV . The minimum shall be raised to QUANTITY for land in mountain areas above the tree - line .

ORG made for each département under the conditions laid down in LAW may increase the minimum areas thus defined . These increases may not bring the new figure to more than twice the minimum laid down above . ”

“ The objections referred to in paragraph CARDINAL of Article L. CARDINAL - CARDINAL shall be admissible provided that they relate to all the land belonging to the owner or co - owners in question .

Such objections shall entail relinquishment of the exercise of hunting rights on the land ... ”

“ Persons who have filed an objection shall be required to erect signs on their land to the effect that hunting is prohibited .

Owners of land or hunting rights who have filed an objection shall take steps to destroy vermin and to control the presence on their land of species that cause damage .

The crossing by hounds of land designated as a reserve or which is the subject of an objection under the third and fifth paragraphs of Article CARDINAL shall not be considered as hunting on a reserve or on land belonging to another , except where the hunter has incited the hounds to enter the land . ”

The Government stated that when an ORG was being set up the owners of land not attaining the statutory minimum area or of hunting rights over such land could prevent the inclusion of their property in the ORG ’s hunting grounds by banding together to create a single block of land which exceeded the minimum area ( Articles PERSON , third paragraph ; PERSON ; and PERSON I , second paragraph , of LAW ) .

On DATE ORG adopted the following Resolution ( PERSON ) :

“ ORG , under the terms of Article CARDINAL , paragraph CARDINAL , of ORG , as amended by LAW No . CARDINAL ( hereinafter referred to as “ the LAW ” ) ,

Having regard to the final judgment of ORG in the case of PERSON and others ...

Having regard to the Rules adopted by ORG concerning the application of Article CARDINAL , paragraph CARDINAL , of the Convention ;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of DATE , having regard to GPE ’s obligation under LAW , paragraph CARDINAL , of the Convention to abide by it ;

Whereas during the examination of the case by ORG , the government of the respondent state gave ORG information about the individual and general measures taken in particular the amendment of Law No . CARDINAL of DATE ( the so - called “ FAC ” ) which was criticised by ORG in its judgment , so as to admit conscientious objection to hunting and thus avoid further violations similar to those found by ORG against persons opposed to hunting ( see the appendix to this resolution ) ;

Declares , after having examined the information supplied by the Government of GPE , that it has exercised its functions under LAW , paragraph CARDINAL , of the LAW in this case .

Information provided by the Government of GPE during the examination of the case of PERSON and others by ORG

To give full effect to the ORG ’s judgment , Act No . CARDINAL - CARDINAL of DATE ( “ the Verdeille Act ” ) , impugned by the ORG , has been amended , giving those opposed to hunting the right to object to it on grounds of conscience . Act No . DATE on hunting , which introduces this amendment , was adopted on DATE and published in the official gazette on DATE . Under LAW of that LAW ( the present LAW ) :

‘ The municipal association [ the licensed municipal hunting association – ORG ] shall be established on lands other than those :

Covered by objections lodged by individual owners , or unanimously by several co - owners acting jointly , who are opposed to hunting for reasons of personal conviction , and who forbid hunting , also by themselves , on their lands , without prejudice to the effects of owner liability , and particularly liability for damage caused by game from their lands .

When the owner is a corporation , the objection may be lodged by the chief executive of its decision - making body , duly authorised by it to do so.’

The government also notes that implementation of the provisions relating to the ORG , as amended by LAW of DATE , appears to have raised certain problems in respect of possibilities of withdrawing from the ORG open to persons not wishing to plead objections of conscience . These problems have given rise to a number of proceedings which are still pending before the appeal courts , but in which the administrative courts based their first - instance judgments on principles derived from the GPE case - law , and particularly the PERSON judgment .

At all events , the government considers , in view of the direct effect in NORP law of ORG and the case - law of ORG , that there is no longer any risk of further violations of the kind suffered by the antihunting applicants according to the PERSON judgment .