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

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

On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant , a non - commissioned officer , was a member of the PERSON group of the PERSON sect . He was involved in disseminating the ideology of the sect . He had an antisocial character and his wife carried an NORP scarf . He refused to participate in social gatherings because he believed that men and women should gather in separate rooms .

The applicant was considered as an undisciplined and insubordinate soldier . He received a written warning for being late to duty and negligence . He was sentenced to CARDINAL days’ reprimand for being undisciplined and disobedient .

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review ...

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) whereby his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE . He is a journalist and film critic .

On DATE ORG film “ The People vs. PERSON ” was released to cinemas in GPE . Prior to that , the film was promoted , inter alia , by means of a poster placed in the streets . In the poster the main character had the flag of the GPE around his hips and he was depicted as crucified on a woman ’s pubic area dressed in a bikini .

On DATE the “ Common Declaration of Ecumenical Council of Churches and of the NORP Bishops’ Conference ” was published . The declaration protested against the display of the poster as being a profanation of God . ORG subsequently associated itself with the declaration .

On DATE Archbishop Mons . PERSON made the following declaration on ORG :

“ In DATE we are witnessing ‘ the humiliation of the crucifix’ . In spite of all protests of the NORP Bishops’ Conference and ORG aimed at stopping the production and distribution of the poster promoting the film of ORG : ‘ The People versus PERSON Flynt’ this poster is present in the streets of our capital GPE . It is a defamation of the symbol of the NORP religion . ORG did not allow this blasphemy . It was not allowed in GPE and GPE either . How is it possible that it was allowed in GPE which professes the tradition of PERSON and PERSON , that is the NORP religion , even in the LAW ? ... Therefore we request the Government , the ORG , our public officials within the legislature and judiciary to examine the entire issue and take appropriate measures for withdrawal of the posters and the film and to hold accountable those who violated the laws ... We hope that our protest will be viewed favourably by the responsible officials and that redress will be made . To all those who endeavour to do so we express our sincere thanks in advance . ”

On DATE the DATE ORG published an article written by the applicant . The DATE was at that time published in CARDINAL copies and it mainly concentrated on political commentary and specialised articles on economy , philosophy , natural sciences and culture . It was aimed at intellectually - oriented readers .

The article was entitled “ The falcon is sitting in the maple tree ; PERSON and CARDINAL slaps to the hypocrite ” . In it the applicant criticised Archbishop PERSON . It did not mention that it had been written in reaction to the above TV broadcast of the Archbishop . The article reads as follows :

“ I. As is generally known , the LOC is a flat board . Even if it is not a flat board , the LOC turns around it . Even if it does not turn , the church dignitary made love to his mother .

II . The text may go on as follows : ‘ Even if he did not make love ... ’ He did . Proves : ( a ) PERSON won a ORG trial in the GPE . ( b ) The church dignitary is a ’trtko’ . This all will acknowledge who saw him at least on TV .

III . I profoundly hate using the word ‘ trtkať’ . The indispensable exceptions can be counted on the fingers of PERSON ’s left hand :

’Trtkaj’ is the nickname of a former professor at ORG at ORG during the period of ‘ normalisation’ .

NORP ’Trt’ is a rarely used acclamation for [ negating something ] or the equivalent of the negation term ‘ shit’ used in the GPE region .

’Trtko’ is DATE as from a certain DATE the same as the perhaps more colourful and euphemistic ‘ trotkoš’ . Such a person does not make love , nor does he ... At the utmost – oh – [ the verb ‘ trtkať’ is used ] ; poor mother .

IV . GPE is not a NORP State . ( When NORP church dignitaries requested the prohibition of the PERSON poster , they had not even thought , fearful ones , of requesting prohibition of the film . They also alleged that GPE was a NORP State . Alas , a glimpse at the first articles of the constitution shows that the NORP people live in liberty , democracy and that it is their private affair whether of not they believe . Not a single word about a NORP State . )

A ORG would be equally as intolerable as an NORP State , for example GPE . It indirectly follows that none of the western GPE is NORP . The long - lasting separation of church from the ORG is to be considered as a major victory of spirit over matter . ( I now disregard the fact that your neighbours in an NORP or NORP village will make your life difficult if you leave the church ) .

The continuation of certain ceremonials is no proof that a ORG is ‘ ORG . For example , the NORP President ends the oath with the ritual words : ‘ So help me God’ . However , PERSON refused to swear on the Bible with the explanation that he did not believe in God . Of course , the judge was satisfied with his statement that he would tell the truth . The NORP President could act likewise , but he would complicate his political life . The number of political struggles which we are able to fight in our life is limited . It is thus more important that PERSON should send soldiers to GPE than the fact that he finally did not send there soldiers who were openly homosexual .

V. Given that the archbishop apparently lacks any sex - appeal it is entirely irrelevant whether in the inside of his body he is homosexual or bisexual ( as PERSON Love in the film ) or whatever . What matters , however , is his positive lustration finding . This principal representative of the first NORP church has not even as much honour as the leader of the last gypsy band in his bow !

I do not understand at all why decent NORP do not leave the organisation which is headed by such an ogre . Are they waiting until he dies ? That is too weak . No member of ORG maintains in his or her defence : ‘ I waited until PERSON and PERSON had died . Then I would make an effort to ensure ORG . Otherwise we would still live in the trees .

VI . As we actually do – in the figurative sense . The success of ‘ FAC ( there is not a jot of paedophilia , not a single fellatio in that film ) shows how pale the world has become . PERSON is the hunted one . It is true that the NORP President received him , but it is unthinkable that the NORP President would do the same . The latter preferred joining the archbishop in his effusions . Which ‘ ORG advised him to do so : PERSON , PERSON ?

VII . NORP The real PERSON published and continues publishing materials that are scurrilous . Their degree of effrontery exceeded the threshold accepted up to then . So what ? The real PERSON acted in the film as a judge and in his role he made unacceptable statements . That was however foreseen in the script . The NORP archbishop makes unacceptable statements without being ordered to do so by anyone . And nothing ? ! ORG , all is vanity .

At the request of the editorial office I leave it to the kind readers to pronounce a judgment as to the degree of scurrility of the NORP archbishop . ”

Subsequently CARDINAL associations complained that the religious feelings of their members had been offended by the article . Criminal proceedings were brought against the applicant . Archbishop PERSON first joined the proceedings as an aggrieved person . He later withdrew from the case and waived his right to claim compensation .

On DATE the ORG convicted the applicant of an offence under Article CARDINAL(CARDINAL)(b ) of LAW . The relevant operational part of the judgment reads as follows :

“ ... as author of the article ‘ The falcon is sitting in the maple tree ; PERSON and CARDINAL slaps to the hypocrite’ ... stating inter alia : ‘ This principal representative of the first NORP church has not even as much honour as the leader of the last gypsy band in his bow ! I do not understand at all why decent NORP do not leave the organisation which is headed by such an ogre ... ’ , to which the local association of the PERSON and ORG in GPE and ORG in GPE reacted independently of each other as offending their religious feelings , the applicant publicly defamed a group of citizens for their faith . ”

The applicant was sentenced to a fine of CARDINAL NORP korunas , to be converted into DATE imprisonment in the event that he deliberately attempted to avoid payment of the sum .

In the proceedings before ORG the applicant explained that his article had been a reaction to statements by Archbishop PERSON broadcast in the main evening news bulletin of ORG in DATE . The applicant considered the ORG ’s proposal to prohibit the distribution of both the poster and the film to be contrary to the principles of a NORP society and , in particular , the freedom of expression . The applicant considered it appropriate to express his view openly as in the TV broadcast no one had been given the opportunity to express a different view from that of the Archbishop . He did not consider the Archbishop to be morally spotless as he had learned that he had been registered in the files of the former NORP secret police . The applicant underlined that he had not intended to offend the feelings of members of ORG .

As to his article , the applicant stated that it was not a commentary but a literary joke with ideas and associations which , admittedly , might be appreciated only by a couple of intellectuals . The applicant stressed that it had not been his intention to accuse the Archbishop of incest as the relevant passage related to the film in question in which a preacher had allegedly committed incest with his mother . His statement concerning the alleged scurrility of the NORP Archbishop had no erotic connotation , the applicant had in mind exclusively the moral failings of the person criticised .

The applicant also explained that he had not been able to publish any articles for DATE and that ORG had stopped co - operating with him following the publication of the above article .

In the course of the criminal proceedings the ORG stated that he did not understand the purpose of the applicant ’s attack against his person , his mother and the church which he represented . He further stated that he had pardoned the applicant .

The court heard the representatives of the CARDINAL associations which had filed a criminal complaint against the applicant . They stated that the applicant had offended and scandalised NORP worshippers in that , inter alia , he had invited them to leave their church if they considered themselves to be decent and alleged that the representative of the church was an ogre .

On the basis of the evidence taken ORG found that the applicant had committed an offence under LAW in that in his article as a whole , and in particular by the words quoted in the operative part of its judgment , he had defamed the highest representative of ORG in GPE and thereby offended the members of that church . In particular , the applicant ’s statement in which he wondered why decent members of the church did not leave it had blatantly discredited and disparaged a group of citizens for their NORP faith . In doing so the applicant had placed ORG at the level of an organisation to which decent NORP should not belong and which they should leave . The applicant should have been aware that his article was capable of offending the interests of other persons protected by law . Given that a high proportion of citizens of GPE were NORP , the applicant through his article harmed the religious feelings of a considerable number of persons .

Both the applicant and the associations which had filed the criminal complaint against him appealed .

The applicant argued that he had committed no offence and that his conviction violated his right to freedom of expression . He referred to constitutional provisions , international instruments and the practice of ORG .

NORP The representatives of the complaining associations expressed the view that the sentence imposed on the applicant was too lenient .

On DATE ORG dismissed both appeals . It held that the first - instance court had established the relevant facts with sufficient certainty and that it had correctly applied the relevant law . As to the applicant ’s arguments relating to his right to freedom of expression , ORG held :

“ It is true that LAW as well as LAW guarantee the freedom of expression and the right to information .

Thus it is not disputed that , LAW , each citizen has the right to receive , seek and impart any information , however only to the extent that the constitutional rights and freedoms of others are not thereby violated . This conclusion can be indirectly deduced from ORG finding PL ÚS CARDINAL in which ORG held that ‘ All fundamental rights and freedoms are protected only to the extent that availing oneself of a right or freedom does not disproportionately restrict or even negate a different right or freedom’ .

The article ‘ The falcon is sitting in the maple tree ; PERSON and CARDINAL slaps to the ORG is not of a common journalistic standard ; the accused admitted this at the main hearing and ORG considers that it goes beyond the principles of journalistic ethics . [ ORG ] is also aware that LAW protects the freedom of expression not only in cases of ‘ information and ideas that are favourably received or regarded as inoffensive or as a matter of indifference , but also to those that offend , shock or disturb or worry the ORG or any part of GPE . The members of the appellate court ’s chamber believe that even in such cases certain limits exist which should not be exceeded . The article in question is vulgar and it ridicules and offends . In the view of ORG it therefore enjoys no protection . Otherwise media could easily become distributors of , inter alia , various malevolent expressions which diminish human dignity . That would certainly not correspond to the spirit and principles of democracy . By the contents of the published article the accused violated the rights , guaranteed by LAW , of other persons DATE namely a group of inhabitants with NORP faith . He thereby offended their religious feelings . ”

As to the qualification of the applicant ’s action under the NORP criminal law and the penalty imposed , ORG upheld the reasoning of the first - instance court . Finally , ORG pointed out that the associations concerned lacked standing to challenge by means of an appeal the sentence imposed on the applicant .

On DATE the applicant complied with the order to reimburse to ORG the costs of the proceedings amounting to SKK CARDINAL .

On DATE the company VMV a.s . paid , on behalf of the applicant , SKK CARDINAL,CARDINAL to the ORG with reference to the pecuniary penalty which had been imposed on him . ORG available on the web indicates that that company has been in liquidation since DATE .

The Preamble to the LAW provides , inter alia , as follows :

“ ... Mindful of the spiritual bequest of PERSON and PERSON , ...

We , the citizens of GPE , have , herewith and through our representatives , adopted LAW : ” ...

Pursuant to LAW , GPE is a sovereign , democratic ORG governed by the rule of law . It is not bound by any ideology or religion .

Article CARDINAL reads as follows :

“ CARDINAL . Freedom of thought , conscience , religion and faith shall be guaranteed . This right shall include the right to change religion or faith and the right to refrain from a religious affiliation . Every person shall be entitled to express his or her opinion publicly ...

The rights under paragraphs CARDINAL of this Article can be restricted only in accordance with a law where it is necessary in a democratic society for the protection of the public order , health , morals or the rights and freedoms of others . ”

Article CARDINAL provides :

“ CARDINAL . Freedom of expression and the right to information shall be guaranteed .

Every person has the right to express his or her opinion in ... writing , ... and also to seek , receive and disseminate ideas and information ...

Freedom of expression and the right to receive and disseminate information may be limited by law where it is necessary in a NORP society to protect rights and freedoms of others , state security , public order , health and morals . ” ...

Article CARDINAL of LAW is entitled “ Defamation of nation , race and belief ” . At the relevant time paragraph CARDINAL of Article CARDINAL read as follows :

“ A person who publicly defames

a ) a nation , its language or a race or

b ) a group of inhabitants of the republic for their political belief , faith or because they have no religion ,

shall be punished by DATE imprisonment or by a pecuniary penalty . ”


Preliminary objection dismissed;Violation of Art. 3 in respect of inadequate medical treatment in the detention facility;Not necessary to examine the other complaints under Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE PERSON , an undercover police agent , called the applicant and said that she wished to buy a dose of heroin . The applicant agreed to procure it and , accompanied by PERSON , met PERSON in the street . PERSON handed the applicant banknotes , given to her by police officers PERSON and NORP and marked with a special substance ( which was visible only under ultra - violet light ) . The applicant took the money and went to the house of another person , PERSON PERSON The latter gave the applicant a sachet containing QUANTITY grams of heroin . On his return to the meeting place with the purported buyer , the applicant was apprehended by the police officers , who had waited for him in the street .

The applicant was brought to the local police station where his fingers were examined under ultraviolet light : they bore traces of the substance used by the police to mark the banknotes . Ms T. , in the presence of CARDINAL attesting witnesses , handed the sachet to the police officers , explaining that she had received it from the applicant . The sachet was placed in a container , which was sealed , signed by the attesting witnesses and sent for forensic examination . The applicant was placed TIME in the police station ’s detention facility .

On DATE a criminal case was opened and the applicant was charged with drug trafficking . On DATE the prosecutor of LOC of GPE , referring to the circumstances of the applicant ’s apprehension , the gravity of the charges against him and the risk of absconding , ordered that he be placed in detention on remand . The applicant was transferred to pre - trial detention facility no . CARDINAL , GPE .

The pre - trial investigation was completed and on DATE the case file with the bill of indictment was referred to ORG for trial . On DATE an application for release , pending before ORG , was forwarded to ORG on the ground that the bill of indictment had been transferred to that court and that it should therefore deal with all aspects of the applicant ’s case . The applicant ’s lawyer appealed against this decision , but on DATE ORG dismissed the appeal .

At a preparatory hearing on DATE the court ruled that the applicant should remain in custody pending trial , without giving any reasons for that decision .

On DATE the applicant ’s father filed a fresh application for release with a court , claiming that the applicant ’s very poor state of health was incompatible with his detention conditions and , in particular , with the level of medical assistance available in the pre - trial detention centre .

On DATE the court extended the applicant ’s detention pending trial . No reasons for that decision were adduced .

On DATE the applicant ’s father filed a new application for release with the district court , referring again to his son ’s health problems . According to the applicant ’s submissions , the defence repeated this request on CARDINAL and DATE . The Government claimed that the motion dated CARDINAL DATE was received by the court only on DATE .

On DATE the court decided that a fresh examination of the applicant ’s mental health was required . It adjourned the case and decided that the applicant should remain in prison in the meantime . No reasons were given for that decision .

On DATE the applicant ’s lawyer appealed against the trial court ’s ruling of DATE . He challenged the trial court ’s decisions to adjourn the case and to order a fresh examination of the applicant ’s mental health , which had the effect of prolonging the applicant ’s detention in the difficult conditions of the detention facility . He made the following request :

“ Under LAW , I [ hereby ] request the [ GPE ] Court to quash the decision of ORG concerning adjournment of the case against ORG , the appointment of an additional psychiatric examination [ of the applicant ] and the refusal [ to grant ] his application for release . ”

The appeal was addressed to ORG and , as required by domestic law , was sent through the registry of the trial court . The registry received the appeal on DATE . However , it appears that it was never forwarded to the appellate court for examination .

On DATE the applicant ’s legal representatives filed a similar appeal , which was received by the registry on DATE . On DATE the applicant ’s lawyer sent a letter to the trial court in which he sought an explanation as to what had happened to his appeal of CARDINAL DATE . He received no reply to this letter .

On DATE the applicant ’s parents complained to a deputy president of ORG and to ORG of GPE about the applicant ’s continued detention . The materials of the case file do not contain any reply to these appeals .

On DATE the applicant ’s representative requested the trial court to release the applicant . The defence again referred to the deterioration in the applicant ’s health and , in particular , to the repetitive pneumonias the applicant had contracted in DATE .

NORP The applicant remained in detention until DATE , when the court discontinued the criminal proceedings ( see below ) and released him .

NORP Since DATE the applicant has suffered from many chronic diseases , such as epilepsy , pancreatitis , chronic viral hepatitis B and C and various mental deficiencies . The doctors who examined the applicant in DATE recommended out - patient psychiatric supervision and treatment by anticonvulsants . It appears that by the time of his arrest in DATE the applicant had a certain history of drug use , including intravenous heroin use .

NORP Immediately after his transfer to the detention centre on DATE the applicant was subjected to a comprehensive medical examination , including an HIV test , a drug test and psychiatric examination . The drug test revealed that the applicant was intoxicated with morphine . A panel of psychiatrists confirmed the previous diagnoses but found him legally capable of being held accountable for the alleged offences . On DATE the first results of the applicant ’s blood test were received . According to the report by the forensic laboratory , the applicant was HIV - positive .

On DATE a psychiatrist re - examined the applicant and found him to be capable of being held legally accountable . On an unspecified date in DATE the facility administration received the applicant ’s medical records for the period prior to his arrest , in which the necessary treatment was indicated . In particular , the applicant was prescribed anticonvulsants ( финлепсин , конвулекс ) and anti - hepatitis therapy ( рибоксин , парсил ) .

On DATE the applicant underwent a new medical examination , which confirmed the previous diagnoses and stated that the applicant “ was able to participate in the trial and take part in investigative actions ” .

While in detention , the applicant suffered from acute pneumonia , epileptic seizures , bronchitis , hepatitis , pancreatitis , and other serious diseases . Owing to his ailments the applicant was on many occasions placed in the unit for contagious patients in the pre - trial detention centre ’s hospital . As reported by the detention facility ’s administration , the applicant was in the centre ’s hospital from DATE to DATE , from DATE to CARDINAL DATE , from CARDINAL July to CARDINAL DATE and from CARDINAL September CARDINAL .

On many occasions the defence informed the court , the administration of the detention facility and other ORG authorities about the applicant ’s serious health problems . Thus , on DATE the defence requested a thorough medical examination of the applicant . On DATE the applicant ’s father asked the facility administration to order a fresh examination of the applicant by an independent doctor , hired by the defence . However , the facility administration refused this request .

During the trial the applicant underwent CARDINAL psychiatric examinations . On DATE the doctors concluded that the applicant had been legally insane when committing the incriminated acts . The report stated , in particular , that the applicant “ suffered from a chronic mental disease in the form of epilepsy with polymorphous seizures and comparable psychic problems and with evident psychic modifications , with a tendency to drug use ” . The report of DATE confirmed that the applicant was legally insane and needed compulsory treatment .

At TIME on DATE the applicant had an epileptic seizure . As follows from a written statement signed by his cell - mates , they had to unclench the applicant ’s teeth with a wooden spoon in order to prevent him from suffocating . The paramedic on duty then arrived and gave the applicant ’s cell - mates a syringe containing an unknown substance , which they injected in the applicant ’s buttocks . The applicant ’s father complained about this fact to the facility administration , which replied that the applicant had received medical aid “ in the room for medical procedures ” .

In DATE the applicant contracted measles and pneumonia . On DATE he had another epileptic seizure . He was transferred to the detention centre ’s psychiatric facility , where he remained for some time under out - patient supervision and received anticonvulsants . In his letter of CARDINAL DATE to the ORG , the applicant ’s father indicated that on DATE the applicant had had another epileptic seizure but had received no medical assistance .

On DATE the applicant fell ill with bronchopneumonia . According to the applicant ’s father , facility doctors began treatment DATE after the symptoms had appeared .

On DATE the applicant was administered a blood test in the facility hospital against his will . His father complained to the facility administration . The administration replied , by letter of CARDINAL DATE , that the blood sample had been taken using a disposable needle .

On DATE the applicant ’s father complained to ORG about his son ’s conditions of detention and the lack of appropriate medical treatment . On DATE he filed a similar complaint to ORG , also seeking the applicant ’s release . According to the applicant ’s father , the applicant was repeatedly transferred from one cell to another , in spite of a high temperature ( CARDINAL C˚ ) and fever , and did not receive adequate treatment for pneumonia . He spent DATE in a cell with purulent patients and slept on the floor on account of a shortage of sleeping places . The facility doctors did not establish the applicant ’s immunological and biochemical status , or the possible causes of his persistent fever . The applicant ’s father wanted to deliver a multi - vitamin medicine to him but the facility administration refused to accept it .

The court dismissed the application for release . On DATE , on a motion by the prosecutor , the court ordered a new expert examination of the applicant ’s mental health on the ground that the previous one , while recognising the applicant as legally insane , did not specify whether his state of mental health required compulsory medical treatment .

In DATE the applicant ’s mother complained to ORG about the applicant ’s conditions of detention and , specifically , about the lack of adequate medical assistance .

According to the Government , from DATE to CARDINAL DATE the applicant underwent in - patient medical treatment in the detention facility ’s hospital . He was supervised by a “ doctor in charge ” and received “ total restorative treatment and vitamin therapy ” . Cell no . CARDINAL , where the applicant was detained , was equipped with CARDINAL berths , a lavatory , hot and cold water taps and ventilation . The applicant was provided with bedding , tin ware , meals CARDINAL times a day and items for personal hygiene . The number of detainees never exceeded the number of berths .

The Government confirmed that on DATE , at TIME , the applicant had had a seizure . Immediately thereafter he was examined by a doctor , who took the applicant ’s pulse , sounded his heart , measured his blood pressure , palpated the abdomen and administered an intramuscular shot of aminazine . On DATE the applicant underwent further medical examination .

The applicant was discharged from hospital in a satisfactory state of health . On DATE the applicant was placed in cell no . CARDINAL , in the prison hospital ’s psychiatric department . He was supervised by a doctor and received “ preventive medical assistance ” . This cell was also properly equipped and was not overcrowded .

According to a certificate dated DATE from the deputy head of the medical department , the applicant had no epileptic seizures during his stay in the psychiatric department of the prison hospital . In the psychiatric hospital anticonvulsant treatment was administered .

The Government produced copies of CARDINAL medical certificates , dated DATE , DATE and DATE . They contained the following relevant entries .

The first certificate stated that the applicant was HIV - positive , suffered from epilepsy and had had CARDINAL epileptic seizure during his stay in the facility hospital . His state of health was assessed as “ satisfactory ” . Any additional medical examinations were to be ordered by the investigative authorities .

The second certificate of DATE stated that the applicant was HIV - positive and was suffering from chronic hepatitis B and C and from epilepsy . Further , there was no record of any epileptic seizure from CARDINAL to DATE . On DATE the applicant consulted a psychiatrist and a neurologist . He was discharged from hospital at the prosecuting authorities’ request in a “ satisfactory ” condition , which did not prevent him from participating in the proceedings .

The third certificate of DATE indicated that the applicant was HIV - positive and was suffering from measles and epilepsy . It further stated that “ at the present moment the [ applicant ’s ] state of health is relatively satisfactory ” and that the applicant would be fit to participate in the proceedings in DATE .

The Government also produced a collection of documents which appeared to be extracts from the applicant ’s medical record . Most pages were illegible . The legible pages listed the applicant ’s diagnoses but contained no information about the nature of treatment administered to the applicant in the detention facility ’s hospital .

On DATE ORG received the case - file from the prosecutor . The first preparatory hearing took place on CARDINAL DATE . In DATE the court held several hearings where various procedural matters were decided upon . Thus , on DATE the court commissioned a fresh expert examination of the applicant ’s mental health and adjourned the case . The expert report was ready by DATE ; it found that the applicant was insane but did not contain any recommendations as to possible compulsory medical treatment . On DATE the court commissioned another psychiatric examination of the applicant and adjourned the examination of the case .

The first hearing on the merits took place on DATE in the presence of the applicant ’s lawyer . The applicant was not present . At the lawyer ’s request , the court admitted several persons to participate in the proceedings as the applicant ’s representatives , including PERSON . They were given TIME to read the case file . The applicant ’s lawyer asked for an adjournment because several witnesses , including PERSON , who had sold heroin to the applicant , and PERSON and NORP , the policemen involved in the operation , had failed to appear . However , the court decided to proceed .

The defence team ’s arguments before the trial court can be summarised as follows . The defence contended that applicant had been incited to commit an offence by Ms T. , acting on behalf of the police . According to the defence , NORP law prohibited any form of incitement or provocation ; only if a specific crime was being prepared could an undercover operation be carried out . In the present case , however , the police had no proof of the applicant ’s involvement in drug trafficking when planning the “ test buy ” .

They further stressed that the applicant ’s confession had been given in a state of drug intoxication and without legal advice . Finally , the defence challenged the credibility of the forensic examination report which identified the substance confiscated and allegedly sold by the applicant to Ms T. as heroin . They referred to a declaration signed by the applicant on DATE , stating that the confession had been extracted from him by force .

DATE . At the hearing on DATE Ms T. gave evidence against the applicant . She testified that she had helped the police voluntarily . She explained that she had handed the applicant over to the police “ out of kindness in a manner of speaking ” ( так сказать , по доброте душевной ) [ sic ] . She also stated as follows : “ At that time I did not know where to get heroin , so I called [ the applicant ] because in the past he had already procured it for me ” .

The court also heard Mr M. , who was with the applicant at the moment of his arrest and who confirmed , in principle , PERSON account of the facts . However , he said that before the events at issue he had procured drugs for himself from another source . Finally , the court interviewed the applicant ’s mother , who described her son ’s character . She testified that she did not know when her son had started to take drugs .

ORG examined the documents , exhibits and expert reports contained in the case file . In particular , it examined the police report describing the “ test buy ” and the findings of the psychiatric examination .

On DATE ORG found the applicant guilty of selling heroin to PERSON on DATE . It also ruled , referring to the psychiatric report of DATE , that the applicant had committed the crime in a state of insanity and could not therefore be held criminally accountable . The court discontinued the criminal proceedings and ordered compulsory medical treatment of the applicant at his home . The applicant was released from custody .

The applicant ’s representative appealed , claiming that the applicant was not guilty and maintaining , inter alia , that the police had fabricated the crime . In particular , there was no reliable evidence that the applicant had already been suspected by the police of being a drug - dealer at the moment of his arrest . Moreover , the applicant had derived no financial benefit from the transaction as he had given PERSON all the money that he had received from T. for the sachet . Furthermore , the court failed to interview several key witnesses , including the QUANTITY police officers who had arrested the applicant , CARDINAL eye - witnesses to his arrest and PERSON , who had sold the substance to the applicant . Finally , the applicant ’s representatives claimed that the confession had been extracted from the applicant by force .

On DATE ORG dismissed the appeal . The applicant was absent but his lawyer and representatives took part in the appeal proceedings .

On DATE ORG of GPE , on a motion by psychoneurotic hospital no . CARDINAL , GPE , ordered that the applicant ’s compulsory medical treatment be discontinued .

The relevant extracts from the CARDINALrd ORG [ ORG ( CARDINAL ) CARDINAL ] by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) read as follows :

... CARDINAL . A prison ’s health care service should at least be able to provide regular out - patient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) . ... Further , prison doctors should be able to call upon the services of specialists . ...

Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .

The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital . ...

Whenever prisoners need to be hospitalised or examined by a specialist in a hospital , they should be transported with the promptness and in the manner required by their state of health . ”

A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .

There should be appropriate supervision of the pharmacy and of the distribution of medicines . Further , the preparation of medicines should always be entrusted to qualified staff ( pharmacist / nurse , etc . ) .

DATE . A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient ’s evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .

Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .

The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . ”

Article CARDINAL § CARDINAL of LAW punishes the unlawful procurement of drugs without an intent to supply . LAW CARDINAL punishes the unlawful supply of drugs in large quantities .

Pursuant to LAW ( “ Insanity ” ) of LAW , a person who was insane at the time of committing a socially dangerous act as a result of chronic or temporary mental derangement , mental deficiency or any other mental condition shall not be subject to criminal liability . In such cases the court , by an interim decision ( определение ) , discontinues the proceedings and discharges the defendant from criminal liability or penalty , and may order that the defendant undergo compulsory medical treatment ( LAW ) . However , if the court finds that there is insufficient indication of the defendant ’s guilt , the proceedings should be discontinued on that ground . The court may in this case still prescribe compulsory medical treatment .

Article CARDINAL of the Operational Search Activities Act of DATE , with further amendments , lists a number of intrusive techniques which may be used by law enforcement or security authorities for the purpose of investigating crimes . Under LAW § CARDINAL ( CARDINAL ) of the LAW , the police may carry out a “ test buy ” ( проверочная закупка ) of prohibited goods ( such as drugs ) .

According to LAW , in order to initiate a “ test buy ” the police should have certain preliminary information that a crime is being planned or that it has been already committed . A test buy is initiated by a written order from the head of the relevant police unit . ORG control is provided if the “ test buy ” involves interference with the home , correspondence and other constitutionally protected rights . The formal requirement is completion of a “ protocol ” , in which the results of the test buy are determined . This “ protocol ” can be used as evidence in the criminal proceedings . The LAW contains other possible situations in which a “ test buy ” can be carried out ( such as where a criminal investigation has been started , where a request for a “ test buy ” was received from the judicial or prosecution authorities , etc . ) ; however , these are not relevant to the present case .

The “ old ” Code of Criminal Procedure ( ORG , in force until DATE ) , provided for a number of interim measures warranting the defendant ’s appearance at the trial and proper administration of justice . Those “ preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal security , bail or detention on remand ( LAW ORG ) .

Under the old ORG , a decision ordering detention on remand could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) . When deciding whether to remand an accused in custody , the competent authority was required to consider whether there were “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or re - offend ( LAW CCrP ) .

Before DATE , detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . Under the old Code the competent authority also had to take into account the gravity of the charge , information on the accused person ’s character , his or her profession , age , state of health , family status and other circumstances ( Article CARDINAL of the old CCrP ) .

The Code distinguished CARDINAL types of detention on remand : the first being “ during the investigation ” , that is while a competent agency – the police or a prosecutor ’s office – investigated the case , and the second “ before the court ” ( or “ during the judicial investigations ” ) , that is , while the case was before a court . Although there was no difference in practice between them ( the detainee was held in the same detention facility ) , the calculation of the time - limits was different .

After arrest the suspect is placed in custody “ during the investigation ” . The maximum permitted period of detention “ during the investigation ” is DATE but it can be extended for DATE in “ exceptional circumstances ” . Extensions are authorised by prosecutors of ascending hierarchical levels , subject to an appeal to the court . No extension of detention “ during the investigation ” beyond DATE is possible ( LAW ORG ) . The period of detention “ during the investigation ” was calculated to DATE when the prosecutor sent the case to the trial court ( Article CARDINAL of the old CCrP ) .

From the date the prosecutor forwards the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ during the judicial proceedings ” ) . DATE the old ORG set no time - limit for detention “ during the judicial proceedings ” . The duration of the trial was not limited in time ( although the judge had to start the trial within a certain time after receiving the case file from the prosecution ) .

The detainee or his or her counsel or representative can challenge the detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge is required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The judge can either dismiss the challenge or revoke the pre - trial detention and order the detainee ’s release ( LAW and -CARDINAL ) .

An appeal to a higher court lay against the judge ’s decision . It has to be examined within the same time - limit as appeals against a judgment on the merits ( Article CARDINAL in fine ) .

On receipt of the case file , the judge had to determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL § CARDINAL and CARDINAL of the old CCrP ) and rule on any application by the defendant for release ( LAW CCrP ) . If the application was refused , a fresh application could be made once the trial has commenced ( LAW of the old ORG ) . At any time during the trial the court could order , vary or revoke any preventive measure , including detention on remand ( LAW CCrP ) .

An appeal against such a decision lay to the higher court . It had to be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP ) .

Legal representation of a client in court proceedings is usually governed by the rules of commission or agency contracts ( Chapters DATE and CARDINAL of LAW of GPE ) . In addition , LAW of the LAW provides for the agency of necessity : a person may act in the interests of another in order to prevent damage to the latter ’s property , protect or promote his lawful interests , etc . If the actions of a person acting in another ’s interest without proper mandate are approved by the beneficiary of such acts , this is regarded as an agency agreement between them ( LAW ) . Consequently , the beneficiary should bear the agent ’s reasonable costs ( LAW ) .


Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney;Simon Brown

In DATE the applicant was convicted of murder . He was released on licence in DATE . His licence required him to cooperate with his probation officer and to remain in the GPE unless his probation officer agreed to his travelling abroad .

Soon after release the applicant left GPE in breach of his licence and went to live in GPE . In DATE his licence was revoked and thereafter he was continuously “ unlawfully at large ” .

NORP In DATE the applicant was arrested in GPE , having returned from GPE in possession of a false passport . Possession of a false passport led to a fine . He remained in custody , however , due to the revocation of the life licence . He made written representations to ORG against the DATE decision to recall him to prison but the ORG rejected those representations and recommended a further review in DATE .

NORP In DATE the ORG recommended the applicant 's release subject to a satisfactory release plan . This recommendation was accepted by the Secretary of ORG . In DATE the applicant was released on life licence .

NORP In DATE the applicant was arrested and remanded in custody on counterfeiting charges . On DATE he was convicted on CARDINAL counts of conspiracy to forge travellers ' cheques and passports and sentenced to DATE imprisonment .

In DATE ORG recommended revocation of the applicant 's life licence and further review at the parole eligibility date of his DATE sentence . The Secretary of ORG accepted the ORG 's recommendation , revoking the licence under LAW DATE ( “ the DATE LAW ) . The applicant made written representations , but the ORG maintained its decision .

In DATE ORG conducted a formal review of the applicant 's case and recommended his release on life licence . It said :

“ This case is exceptional in that it is a recall CARDINAL and he has previously made a successful transition from prison to the community without violent reoffending ... It is felt that the risk of serious reoffending in the future is very low . Recent reports of progress in prison have been favourable and no untoward incidents have been reported ; positive links with his family have been maintained . In view of these facts , it is now felt that he could be released safely and appropriately into the community . The ORG took the view after lengthy consideration that nothing further would be gained by a period in open conditions , and the successful return to the community , bearing in mind all risk factors , would be best facilitated by returning to his family directly . ”

By letter of DATE to the applicant , the Secretary of ORG rejected the ORG 's recommendation in the following terms :

“ ... [ The Secretary of ORG ] notes with concern the circumstances surrounding your CARDINAL recalls to prison ... Both these occasions represent a serious and grave breach of the trust placed in you as a life licensee and demonstrate a lack of regard for the requirements of supervision . Against this background the Secretary of ORG is not yet satisfied that if released on licence for a third time , you would fully comply with the conditions of your life licence . He notes that you have spent DATE in closed prison conditions and therefore have not on this occasion followed the normal progression of life sentence prisoners . This involves a period in open conditions , giving you the opportunity to demonstrate sustained good behaviour and responsibility in a less secure environment ; and to experience the full range of resettlement activities in preparation for release .

For these reasons , the Secretary of ORG considers that you should be transferred to an open prison for a final period of testing and preparation . Your next formal review by ORG will begin DATE after your arrival there . ”

On DATE the applicant was granted leave to seek judicial review of the Secretary of ORG 's decisions to reject the ORG 's recommendation for immediate release and to require him to spend DATE in open conditions before the next review .

On DATE , but for the revocation of his life licence , the applicant would have been released from prison on the expiry of the sentence for fraud , pursuant to provisions whereby prisoners serving determinate sentences of DATE were released after serving CARDINAL of their sentence ( section CARDINAL of the DATE Act ) .

NORP The Secretary of ORG acknowledged in the proceedings that there was not a significant risk that the applicant would commit further violent offences , but asserted that he could lawfully detain a post - tariff mandatory life prisoner solely because there was a risk that he might commit further non - violent imprisonable offences .

On DATE Mr Justice PERSON quashed the Secretary of ORG 's decision of DATE , holding that it was beyond his power to detain a post - tariff life prisoner other than on the basis that there existed an unacceptable risk that he might commit a future offence involving a risk to the life or limb of the public .

On DATE ORG allowed the Secretary of ORG 's appeal , holding that section CARDINAL(CARDINAL ) of the CARDINAL Act conferred a broad discretion on the Secretary of ORG to direct the release of mandatory life prisoners and his decision not to release the applicant was in accordance with the previously stated policy whereby the risk of reoffending was taken into account , such risk not having been expressed as being limited to offences of a violent or sexual nature . Lord PERSON stated , however :

“ The applicant is now serving the equivalent of a determinate sentence of DATE , albeit in open conditions . This term has not been imposed on him by way of punishment , because he has already served the punitive terms which his previous , very serious , offences have been thought to merit . The term has not been imposed because he is thought to present danger to the public , because that is not suggested . It is not submitted that the term imposed bears any relation to the gravity of any future imprisonable offence which the applicant might commit or that such term is needed to ensure future compliance with the terms of his life licence . While a powerful case can be made for testing in open conditions a mandatory life prisoner who has been institutionalised by DATE of incarceration in closed conditions , such a case loses much of its force in the case of a man who has , since serving the punitive term of his life sentence , demonstrated his capacity for living an independent and apparently lawful life by doing so for DATE . The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion , without trial , lies uneasily with ordinary concepts of the rule of law . I hope that the Secretary of ORG may , even now , think it right to give further consideration to the case . ”

Lord Justice PERSON , concurring with the latter remarks , added :

“ The category of imprisonable offence is extremely wide , and can encompass many matters that are wholly unrelated , both in nature and seriousness , to the reasons for the life sentence prisoner being within the power of the ORG in the first place . I also find it uncomfortable that the criterion should be used as the justification for continued imprisonment . We were told in argument that the test of imprisonable offence , rather than of fault of a purely moral or social nature , was used because faults of the latter nature would be unconnected with the original reasons for the subject 's incarceration ; but in reality this lack of connection exists , or at least is strongly threatened , by the imprisonable offence criterion also . ... ”

On DATE the applicant was moved to open conditions .

NORP By letter dated DATE , the Secretary of ORG decided that the applicant should spend DATE in open conditions before his next review .

On DATE ORG dismissed the applicant 's appeal against ORG decision . In his speech , with which the rest of the judges agreed , Lord PERSON held that section CARDINAL(CARDINAL ) of the CARDINAL Act conferred a wide administrative discretion on the Secretary of ORG to decide upon the release on licence of mandatory life prisoners and that there was no fundamental common - law principle of retributive proportionality which restrained him from detaining a mandatory life prisoner by reference to a risk that he may in future commit a serious but non - violent offence . He expressly repeated Lord PERSON 's concern that the imposition of a substantial term of imprisonment by exercise of administrative discretion was hard to reconcile with ordinary concepts of the rule of law .

On DATE the applicant was released on licence by the Secretary of ORG .

Murder carries a mandatory sentence of life imprisonment under the Murder ( Abolition of Death Penalty ) Act DATE . A person convicted of other serious offences ( such as manslaughter or rape ) may also be sentenced to life imprisonment at the discretion of the trial judge where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside . Where an offender is DATE when the offence of murder is committed , he or she is sentenced to detention during Her Majesty 's pleasure ( section CARDINAL(CARDINAL ) of ORG ) .

As at DATE there were CARDINAL male and CARDINAL female mandatory life prisoners , CARDINAL men and QUANTITY women serving a sentence of detention during Her Majesty 's pleasure and CARDINAL male and CARDINAL female discretionary life prisoners .

NORP Over DATE , the Secretary of ORG has adopted a “ tariff ” policy in exercising his discretion whether to release offenders sentenced to life imprisonment . This was first publicly announced in ORG by Mr PERSON GPE on DATE ( ORG ) cols . CARDINAL - CARDINAL ) . In essence , the tariff approach involves breaking down the life sentence into component parts , namely retribution , deterrence and protection of the public . The “ tariff ” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence . The Home Secretary will not refer the case to ORG until DATE the expiry of the tariff period , and will not exercise his discretion to release on licence until after the tariff period has been completed ( per Lord PERSON , NORP v. Secretary of ORG for ORG , ex parte PERSON and CARDINAL [ DATE ] Appeal Cases CARDINAL , at pp . CARDINAL ) .

According to section CARDINAL of LAW DATE ( “ the DATE LAW ) , the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction . After the tariff has expired , the prisoner may require the Secretary of ORG to refer his case to ORG , which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public .

A different regime , however , applied under LAW to persons serving a mandatory sentence of life imprisonment ( now replaced by ORG “ the DATE LAW ) , sections CARDINAL ) . In relation to these prisoners , the Secretary of ORG decides the length of the tariff . The view of the trial judge is made known to the prisoner after his trial , as is the opinion of the Lord Chief Justice . The prisoner is afforded the opportunity to make representations to the Secretary of ORG , who then proceeds to fix the tariff and is entitled to depart from the judicial view ( NORP v. Secretary of ORG for ORG , ex parte Doody [ DATE ] CARDINAL Appeal Cases CARDINAL ; and see the ORG Secretary , Mr PERSON , policy statement to ORG , DATE , ORG ) cols . CARDINAL - CARDINAL ) .

In the judicial review proceedings in Ex parte V. and ORG ( cited above ) , ORG gave consideration , inter alia , to the nature of the tariff - fixing exercise .

Lord PERSON held :

“ The starting - point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises . Writing on behalf of the Home Secretary ORG explained that : ' The Home Secretary must ensure that , at all times , he acts with the same dispassionate fairness as a sentencing judge . ' The comparison between the position of the Home Secretary , when he fixes a tariff representing the punitive element of the sentence , and the position of the sentencing judge is correct . In fixing a tariff the Home Secretary is carrying out , contrary to the constitutional principle of the separation of powers between the executive and the judiciary , a classic judicial function . ORG entrusted the underlying statutory power , which entailed a discretion to adopt a policy and fix a tariff , to the ORG Secretary . But the power to fix a tariff is nevertheless equivalent to a judge 's sentencing power . ”

Lord Hope held :

“ But the imposition of a tariff , which is intended to fix the minimum period in custody is , in itself , the imposition of a form of punishment . This has , as Lord PERSON observed in NORP v. Secretary of ORG for ORG , ex parte Doody at p. CARDINAL - B , the characteristics of an orthodox judicial exercise , which is directed to the circumstances of the offence and those of the offender and to what , having regard to the requirements of retribution and deterrence , is the appropriate minimum period to be spent in custody . The judge , when advising the Secretary of ORG about the tariff , must and does confine his attention to these matters ...

If the Secretary of ORG wishes to fix a tariff for the case DATE in order to replace the views of the judiciary with a view of his own about the length of DATE he must be careful to abide by the same rules ... ”

In Ex parte Pierson [ DATE ] Appeal Cases CARDINAL , Lord PERSON stated , in a case concerning mandatory life prisoners :

“ In public law the emphasis should be on substance rather than form . The case should not be decided on a semantic quibble about whether the Home Secretary 's function is strictly ' a sentencing exercise ' . The undeniable fact is that in fixing a tariff in the individual case the Home Secretary is making a decision about the punishment of the convicted man . In any event , a majority holding in Ex PERSON concludes the matter ... This point is therefore settled by the binding authority of a decision of the ORG . ”

A whole life tariff may be set in appropriate cases . In NORP v. the Home Secretary , ex parte PERSON [ DATE ] CARDINAL Appeal Cases , where a provisional tariff of DATE had been replaced by a whole life tariff , Lord PERSON held that “ life - long incarceration for the purposes of punishment is competent where the crime or crimes are sufficiently heinous ” . The decision of the Secretary of ORG to apply a whole life tariff in her case was found in the circumstances to be lawful . He had been entitled to revise his view of the tariff , which had initially been based on incomplete knowledge of her role in the CARDINAL murders upon which she had faced trial and in ignorance of her involvement in CARDINAL other murders , matters which came to light later . According to information provided by the Government , there were CARDINAL mandatory life prisoners with whole life tariffs at DATE .

At the relevant time , LAW DATE provided in section CARDINAL(CARDINAL ) :

“ If recommended to do so by the [ ORG , the Secretary of ORG may , after consultation with the Lord Chief Justice together with the trial judge if available , release on licence a life prisoner who is not a discretionary life prisoner . ”

This is in contrast to the position for other life prisoners , where ORG now has the power of decision DATE pursuant to the provisions of the DATE Act for discretionary life prisoners and pursuant to LAW for detainees during Her Majesty 's pleasure . Where , however , a mandatory life prisoner was recalled to prison , ORG did have a power to direct the Secretary of ORG to release the prisoner immediately ( section CARDINAL(CARDINAL ) of the CARDINAL Act , now section CARDINAL(CARDINAL ) of LAW ) .

On DATE the Secretary of ORG made a statement in ORG explaining his practice in relation to mandatory life prisoners . The statement emphasised that before any mandatory life prisoner is released on life licence , the Secretary of ORG

“ will consider not only ( a ) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and ( b ) whether it is safe to release the prisoner , but also ( c ) the public acceptability of early release . This means that [ he ] will only exercise [ his ] discretion to release if [ he is ] satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice . ”

NORP In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences , the LANGUAGE courts have recognised that the mandatory sentence is , like the discretionary sentence , composed of both a punitive period ( “ the tariff ” ) and a security period . As regards the latter , detention is linked to the assessment of the prisoner 's risk to the public following the expiry of the tariff ( see , for example , NORP v. ORG , ex parte Bradley ( ORG ) [ DATE ] CARDINAL Weekly Law Reports CARDINAL , and NORP v. ORG , ex parte ORG ) [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

In NORP v. Secretary of ORG for ORG , ex parte Doody ( [ DATE ] CARDINAL ORG ) , ORG observed that , in contrast with the position as regards discretionary life sentences , the theory and practice in respect of mandatory life sentences were out of tune . In his speech , with which the other judges agreed , Lord PERSON explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a “ tariff ” period to reflect the requirements of retribution and deterrence . He added :

“ The discretionary and mandatory life sentences , having in the past grown apart , may now be converging . Nevertheless , on the statutory framework , the underlying theory and current practice , there remains a substantial gap between them . It may be – I express no opinion – that the time is approaching when the effect of the CARDINAL types of sentence should be further assimilated . But this is a task of ORG , and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the ORG , through the medium of judicial review . ”

On DATE the Secretary of ORG made the following parliamentary statement , inter alia :

“ I take the opportunity to confirm that my approach on the release of adults convicted of murder once tariff has expired will reflect the policy set out in the answer given on DATE . In particular , the release of such a person will continue to depend not only on the expiry of tariff and on my being satisfied that the level of risk of his committing further imprisonable offences presented by his release is acceptably low , but also on the need to maintain public confidence in the system of criminal justice . The position of a prisoner subject to a mandatory life sentence continues to be distinct from that of a prisoner serving a discretionary life sentence , a decision on whose final release is a matter for ORG alone . ”

It was noted by ORG in NORP ( PERSON and PERSON ) v. Secretary of ORG for ORG [ DATE ] CARDINAL Weekly Law Reports ( judgment of DATE ) that the criterion of public acceptability of release identified by the ORG Secretary ( point ( c ) in paragraph CARDINAL above ) had never been a determining factor , although the current Home Secretary followed the policy of his predecessors .

On DATE LAW DATE came into force , permitting the provisions of the Convention to be relied on in domestic proceedings .

In PERSON and PERSON ( cited above ) , the CARDINAL applicants challenged the imposition on them for murder of a mandatory life sentence , arguing that this was disproportionate and arbitrary and contrary to Articles CARDINAL and CARDINAL of the Convention . In dismissing their appeals , ORG found that the mandatory sentence of life imprisonment was in reality an indeterminate sentence , rarely involving imprisonment for life , and as such could not be labelled inhuman and degrading . Nor was it arbitrary as in each case the sentence was individualised from the moment it was imposed . The purpose of the mandatory life sentence was , according to the ORG 's counsel ,

“ to punish the offender by subjecting him to an indeterminate sentence under which he will only be released when he has served the tariff part of his sentence , and when it is considered safe to release him ... That is not merely the effect of the sentence , it is the sentence ” .

Lord Justice PERSON also cited in his judgment the conclusions of ORG , chaired by PERSON , issued in DATE :

In NORP ( PERSON and PERSON ) v. Secretary of ORG for ORG , CARDINAL prisoners who had been convicted of murder complained that the ORG Secretary had fixed a tariff superior to that recommended by the judiciary DATE instead of DATE and DATE instead of DATE . They relied on LAW , alleging that it was incompatible for the executive to carry out what was in fact a sentencing exercise . ORG dismissed their claims . ORG rejected their appeals on DATE . In doing so , the appellate judges considered the nature of the tariff - fixing exercise for mandatory life prisoners and the significance of GPE case - law .

Lord Justice PERSON held , inter alia :

“ ... I accept of course that the mandatory life sentence is unique . But not all the offences for which it is imposed can be regarded as uniquely grave . Rather the spectrum is a wide CARDINAL with multiple sadistic murders at one end and mercy killings at the other . Lifelong punitive detention will be appropriate only exceptionally . As for ' broader considerations of a public character ' , it is difficult to understand quite what these are . Regard must not be had to ' public clamour ' – see [ V. ] . There is , of course , ' the need to maintain public confidence in the system of criminal justice ' ( see the ORG Secretary 's statement to ORG on DATE ) . To my mind , however , this can and should be catered for in the fixing of the tariff . The retributive element of the tariff should reflect the public 's moral outrage at an offence . Surely the maintenance of public confidence in the system can not require longer incarceration than that which properly reflects society 's entitlement to vengeance . Sometimes , I recognise that will require a whole life tariff . But why should not the judges determine that ? ... [ ORG to retrospectively increasing the tariff ... [ t]he same problem could presumably arise in a discretionary life sentence case . In truth , however , it begs rather than answers the question whether the initial fixing of the tariff is properly to be regarded as an exercise in sentencing .

In short I find none of Mr PERSON 's arguments convincing . Neither singly nor cumulatively do they seem to me to provide a principled basis for treating tariff - fixing in mandatory life cases differently from the similar exercise required for discretionary life prisoners and Her Majesty 's pleasure detainees . In all CARDINAL cases the exercise is in substance the fixing of a sentence , determining the length of the first stage of an indeterminate sentence – that part of it which ( subject only to the need for continuing review in Her Majesty 's pleasure cases ) must be served in custody before any question of release can arise ... ”

Although he was of the view that the existing mandatory life sentence regime breached LAW and LAW , he , and the other CARDINAL judges , considered that the GPE case - law ( in particular , PERSON GPE , judgment of DATE , Series A no . CARDINAL-A ) had to be regarded as determinative of the Convention issues in the case . He noted that ORG was about to re - examine the position in GPE and , although considering that the final decision should be the ORG 's , stated that he would be surprised if the present regime for implementing mandatory life sentences survived that re - examination .

In GPE , LAW ) ( GPE ) Act DATE now provides that in the case of mandatory life sentences the trial judge fixes the “ punishment part ” of the sentence , on the expiry of which ORG decides on possible release on licence . The test applied to determine suitability for release is identical to that applied to discretionary life prisoners in GPE and GPE , namely , that ORG is satisfied that the prisoner does not present a substantial risk of reoffending in a manner which is dangerous to life or limb or of committing serious sexual offences .

In GPE , the Life Sentences ( GPE ) Order SI no . CARDINAL provides that the trial judge decides on the tariff for a mandatory life prisoner and that release post - tariff is determined by ORG ( with a status and functions very similar to those of ORG operating in GPE and GPE ) . The test applied by the ORG is CARDINAL of protection of the public from “ serious harm ” , this term meaning the risk of harm from violent or sexual offences .

Justice , a human rights and law reform organisation founded in DATE , submitted written comments regarding domestic law and practice , following the leave granted to it by the President of the ORG to intervene as a third party ( see paragraph CARDINAL above ) . Its submissions may be summarised as follows .

The mandatory life sentence imposed by LAW ( see paragraph CARDINAL above ) applied to all convictions for murder , covering a whole bundle of offences of vastly differing degrees of culpability , ranging from brutal serial killings to the mercy killing of a beloved partner . It could not be said that murder was a uniquely heinous offence . The mandatory application of life sentences therefore made the arrangements for release all the more critical in terms of fairness and just deserts . Access to regular judicial review once the tariff expired had been extended to discretionary life prisoners and child murderers and the Secretary of ORG could no longer set tariffs in these cases . Similar provisions were now being extended to mandatory life prisoners in both GPE and GPE under legislation to ensure compliance with human rights .

There had been substantial criticism of the current system . In DATE , a ORG of ORG , appointed to report on murder and life imprisonment , recommended the abolition of the mandatory life sentence . In DATE the Home Affairs Select Committee of ORG took evidence and deliberated on the same issues . Their report ( Murder : The Mandatory Life Sentence ) recommended that the tariff and release decisions be removed from the ORG Secretary and left with the trial judge and ORG . Lord Lane , formerly Lord Chief Justice , chaired a ORG on the Penalty for Homicide , which also produced a critical report in DATE .

The diversity of circumstances that could lead to a murder conviction meant that murderers as a class of offender did not pose special problems of dangerousness . They had a lower recidivism rate than discretionary life prisoners and the general prison population . The system of tariff - fixing was not easily understood by the prisoners concerned and was subject to delays and uncertainty , both of which factors impinged on the quality of work with life prisoners at the crucial early stages of their sentences .

GPE had more serving life prisoners than the rest of LOC together , which was attributable primarily to the mandatory life sentence for murder . While some countries , such as GPE , GPE and GPE , had mandatory life sentences , these were only applied where there were aggravating factors or for a particular type of murder . LAW provided that a life sentence could only be ordered “ when justified by the extreme gravity of the crime and the individual circumstances of the convicted person ” .


No violation of Art. 6-1;No violation of Art. 6-3-d

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the police entered premises in B. , owned by CARDINAL of the applicant ’s associates , where they discovered a chemical laboratory , substances that turned out to be precursors necessary for the production of narcotics , and various appliances , inter alia , for the production of pills .

On DATE the applicant was arrested by the police . On DATE ORG ( Sąd Rejonowy ) decided to remand him in custody on suspicion of producing psychotropic substances .

Subsequently his detention was extended .

On DATE the applicant was indicted before ORG ( PERSON ) on charges of leading an organised criminal gang that DATE and DATE had produced large quantities of amphetamine , heroin and cocaine . Simultaneously , CARDINAL other persons were indicted in the same set of proceedings .

At the same time the prosecutor severed other charges against the applicant related to illegal transport of psychotropic substances to GPE and other NORP countries and releasing drugs into circulation in those countries .

On DATE the trial court held the first hearing in the case .

On DATE ORG held a hearing at which the prosecutor sought to read out statements made by a certain ORG as well as by PERSON , GPE , and PERSON The applicant ’s lawyer objected to this , submitting that the statements in question had been made before the NORP courts in another set of criminal proceedings in which those individuals had been the accused , and thus they had not received a warning about criminal liability for making untruthful statements . He also submitted that the NORP authorities had made no attempt to hear those individuals in GPE at the preparatory stage of the proceedings . Moreover , he challenged the legal basis that could allow statements made before foreign courts to be read out .

Nevertheless , the trial court decided to read out the statements made by ORG and others . The court based its decision on LAW and others , which allowed statements made by both witnesses and accused in another set of proceedings to be read out . It agreed that it had not been obvious whether this provision could be applicable to a situation where the actions of foreign authorities had not been taken at the request of the NORP authorities ; however this doubt had been dismissed by ORG in its decision of DATE . ORG examined the rules of NORP Criminal Procedure and concluded that they did not conflict with the principles and guarantees provided by the NORP legal order .

At a hearing held on DATE the trial court started reading out the statements of ORG and others . The applicant contested the truthfulness of ORG ’s testimony .

On DATE the applicant ’s lawyers requested the trial court , inter alia , to hear witnesses ORG and ORG in person before the trial court in order to confront them . They pointed to discrepancies in their statements which could only be verified by hearing them in person before the trial court .

On DATE ORG submitted to the court his reply to the applicant ’s request , in which he was not opposed to ORG and GPE being heard by a delegated judge , as they had not so far been heard by the NORP authorities in connection with this set of proceedings .

On DATE ORG refused the applicant ’s request for ORG and ORG to be heard in person without specifying the reasons for the refusal .

On CARDINAL DATE the trial court gave judgment in the case . The applicant was convicted of the following offences , committed on an unspecified date DATE and DATE :

CARDINAL ) storing and possessing large quantities of psychotropic substances ,

CARDINAL ) storing , owning and acquiring equipment necessary for illegal production of psychotropic substances , and

CARDINAL ) producing large quantities of psychotropic substances , particularly amphetamines .

The court found that the applicant had acted together with CARDINAL accomplices ; however it acquitted him of the charge of leading an organised criminal gang . The court sentenced the applicant to CARDINAL years’ imprisonment and a fine .

The facts of the case were established on the basis of the following :

CARDINAL ) expert opinions submitted by CARDINAL different experts , including an opinion prepared in cooperation with ORG in GPE ( GPE ) ;

CARDINAL ) statements made by thirtythree individuals , witnesses and coaccused ;

CARDINAL ) statements made by ORG , ORG and others heard before the NORP authorities , including those read out at the hearing ;

CARDINAL ) documents : records of searches of LOC , notes on use of a police dog and scent identification , records of in situ inspection , forensic opinions , documents , inspection of pieces of evidence produced at the hearing , documents held in the secret registry , documents submitted by witness PERSON , photographic documentation of pieces of evidence , and official correspondence related to pieces of evidence .

Some of the evidence referred to above had been collected in another set of criminal proceedings against the applicant ( regarding charges severed in DATE , see paragraph CARDINAL above ) .

In reconstructing the facts of the case the trial court firstly examined the type and quantity of chemical substances seized during the search of CARDINAL rooms of the laboratory in B. and the possible time frame of the activity of the laboratory . The written reasons of the judgment in this respect are detailed and extensive . The court examined at length the results of the searches of the laboratory , which had been conducted by several experts , who had collected CARDINAL samples of chemical substances as well as video and photographic evidence . The trial court examined the scientific methodology employed by experts , and the procedures followed , in the light of the allegations made by the accused that some of the evidence against them had been fabricated .

The court further examined the involvement of each of the coaccused in the activities with which they had been charged . As regards the applicant , the trial court referred to comparisons made by NORP and NORP experts of chemical substances found in the laboratory to ecstasy pills confiscated in several NORP countries , notably in GPE . The experts considered that it was most probable that the drugs found abroad had been produced in the laboratory in GPE link between the applicant , the other coaccused , and the activity of the laboratory was established on the basis of various pieces of evidence examined at length by the trial court as well as circumstantial evidence .

NORP The trial court assessed the credibility of statements obtained from ORG and others by the NORP courts and investigating authorities , which had been read out at the hearing , and determined that they were worthy evidence ( pełnowartościowy materiał dowodowy ) . They enabled the existence of personal connections between the applicant and drug dealers arrested in GPE , in particular FAC , to be established The court considered this evidence to corroborate what had been established by experts , namely that the drugs found abroad had in fact been produced in the laboratory in B. The trial court considered that FAC in his statements had been incriminating himself to a far greater extent than the applicant . ORG considered himself the main organiser of drugrelated dealings and depicted the applicant as an ineffective executor of his instructions .

On DATE the applicant lodged an appeal against the judgment . He complained in particular that ORG ’s statements , as well as those of CARDINAL other witnesses , had been read out before the trial court although they had not been requested by the NORP authorities as provided by LAW . The applicant also contested the trial court ’s refusal of his request for ORG to be heard in person . Moreover , the appeal challenged the trial court ’s finding that the applicant had been producing drugs up to DATE . He submitted that the condition of the laboratory when it was searched on CARDINAL DATE showed that it had not been used recently . Thus the trial court was wrong to conclude that the applicant had been committing an offence continuously up to DATE and to apply the more severe legal regulation that entered into force on DATE .

The prosecutor also lodged an appeal , alleging that it had been sufficiently proved that the applicant had acted as a leader of an organised criminal gang .

On DATE ORG ( Sąd Apelacyjny ) held a hearing and upheld the impugned judgment . The court considered that the firstinstance court had been right to read out the statements of ORG and others made before the NORP court and that it had correctly applied the legal provisions in the light of ORG interpretation set out in its decision of DATE . The appellate court also dismissed the arguments that the applicant had not been producing any illegal substances immediately before and after DATE . The court considered that the police had secured in his laboratory large quantities of substances for the production of narcotics , with appliances which had not been dismantled and showed signs of recent use . According to the court , a laboratory of that kind did not work steadily and produce constantly , but had periods of stagnation , waiting for the following stages of the production , but nevertheless with the intention of continuing such activity .

In addition to the above - mentioned circumstantial evidence , ORG analysed at length the statements made by ORG and other witnesses heard in GPE and assessed their usefulness and veracity . It underlined that the applicant had never contested that he knew ORG and had met him on several occasions , allegedly in the capacity of an expert consultant in chemistry . The court noted that ORG had disclosed many elements of his dealings , which only in part concerned the applicant , without attempting to minimise his own role . His statements were considered logical and trustworthy and corroborated by those made by other witnesses .

On DATE the applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) .

On DATE ORG decided not to hear the cassation appeal and refused to prepare written reasons for its decision .

Article CARDINAL § CARDINAL of the DATE Code of Criminal Procedure ( “ the Code ” ) provides :

“ The accused has a right to be present during the taking of evidence in the proceedings . ”

Article CARDINAL of the Code provides as follows :

“ CARDINAL . If a witness has without good reason refused to testify , or has made a statement which differs from DATE , or has stated that he does not remember certain details , or if he is abroad , or a summons can not be served on him , or if he has not appeared for good reason or if the president of the court has declined to summon him pursuant to LAW [ because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial ] , and also when a witness has died , the records of his previous statements may be read out , [ regardless of whether they ] have been made in the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law .

NORP In the circumstances referred to in paragraph CARDINAL , and also in the case specified in LAW , the records of evidence that a witness has given when heard as an accused may also be read out . ”

According to Article CARDINAL of the Code :

“ The official records of inspections , testimonies given by accused , witnesses or experts , or records of other evidentiary actions prepared upon a request from a NORP court or prosecutor , by the courts or prosecutors of foreign countries or by agencies performing under their supervision , may be read out at a hearing in accordance with the principles prescribed in Articles CARDINAL , ORG and CARDINAL . This may be done provided that the manner in which these actions are performed does not conflict with the principles of legal order in GPE . ”

According to LAW , the provision above is applicable also to evidentiary materials obtained abroad even if the actions have not been taken at the request of a NORP court or prosecutor .

Section CARDINAL ( CARDINAL ) of the CARDINAL Prevention of Drug Addiction Act ( LOC o przeciwdziałaniu narkomanii ) provided that production of large quantities of psychotropic substances was liable to a penalty of DATE five years’ imprisonment . On DATE the Act was amended with effect from DATE . As required by the amended section CARDINAL ( CARDINAL ) of the LAW the offence in question became liable to a penalty of a minimum of CARDINAL PERSON imprisonment ; no maximum liability was set .